Smith v. Mentor Corporation et al
Filing
45
ORDER granting 34 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE CLAY D LAND on 10/08/2015. (CGC)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
IN RE MENTOR CORP. OBTAPE
*
TRANSOBTURATOR SLING PRODUCTS
*
LIABILITY LITIGATION
*
MDL Docket No. 2004
4:08-MD-2004 (CDL)
Case No.
4:13-cv-15 (F. SMITH)
O R D E R
Defendant
Mentor
Worldwide
LLC
developed
a
suburethral
sling product called ObTape Transobturator Tape, which was used
to
treat
women
with
stress
urinary
incontinence.
Plaintiff
Frances Smith was implanted with ObTape and asserts that she
suffered injuries caused by ObTape.
liability
action
against
Mentor,
Smith brought this product
contending
that
ObTape
had
design and/or manufacturing defects that proximately caused her
injuries.
warn
her
Smith also asserts that Mentor did not adequately
physicians
about
the
risks
associated
with
ObTape.
Mentor contends that Smith’s claims are barred by the applicable
statute of limitations.
For the reasons set forth below, the
Court agrees, and Mentor’s Motion for Summary Judgment (ECF No.
34 in 4:13-cv-15) is granted.
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed. R.
Civ. P. 56(a).
In determining whether a
genuine
dispute of
material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party’s favor.
477 U.S. 242, 255 (1986).
Anderson v. Liberty Lobby, Inc.,
A fact is material if it is relevant
or necessary to the outcome of the suit.
Id. at 248.
A factual
dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.
Id.
FACTUAL BACKGROUND
Viewed in the light most favorable to Smith, the record
reveals the following.
Smith is a lifelong resident of Alabama,
and she received her routine medical treatment in Alabama.
2004,
Smith’s
Alabama
physician
referred
her
to
Dr.
In
Brian
Chadwick in LaGrange, Georgia for a mesh sling operation.
Dr.
Chadwick implanted ObTape in Smith on September 29, 2004 in
LaGrange, Georgia.
In 2005, Smith started experiencing symptoms of discharge,
odor,
and
left
side
pain.
treatment in September 2005.
the ObTape.
to Smith.
She
visited
Dr.
Chadwick
for
Dr. Chadwick found an erosion of
He cut out the eroded piece of mesh and showed it
Dr. Chadwick removed portions of the ObTape on more
than one occasion, and Smith believed that the ObTape was not
working properly and had something to do with her symptoms.
2
Smith Dep. 56:5-57:11, ECF No. 34-4.
Smith continued to see Dr.
Chadwick over the next few years complaining of various “mesh
problems.”
Chadwick Dep. 290:2-12.
During the same timeframe,
Smith also saw a doctor in Alabama for treatment related to the
sling erosion.
Smith started to think about bringing a lawsuit
against Mentor when she saw a television commercial regarding
mesh problems in 2012.
Smith
filed
her
Complaint
on
January
generally Compl., ECF No. 1 in 4:13-cv-15.
16,
2013.
See
Smith brought claims
for personal injury under the following theories: negligence,
strict liability design defect, strict liability manufacturing
defect, and strict liability failure to warn.
DISCUSSION
Smith filed her action in this Court under the Court’s
direct filing order.
The parties agreed that for direct-filed
cases, the “Court will apply the choice of law rules of the
state where the plaintiff resides at the time of the filing of
the complaint.”
Order Regarding Direct Filing § II(E), ECF No.
446 in 4:08-md-2004.
Alabama’s choice-of-law rules thus apply.
Smith contends that under Alabama’s choice-of-law rules, Georgia
law applies to her claims.
barred
under
Georgia
law.
Smith argues that her claims are not
Mentor
asserts
that
Alabama
law
applies and that Smith’s claims are time-barred under Alabama
law.
3
Under Alabama law, the doctrine of lex loci delicti applies
to tort claims, which means that “the substantive rights of an
injured party” are determined “according to the law of the state
where the injury occurred.”
Fitts v. Minn. Mining & Mfg. Co.,
581 So. 2d 819, 820, 823 (Ala. 1991).
Lex fori, the law of the
forum, “governs procedural matters.”
Middleton v. Caterpillar
Indus., Inc., 979 So. 2d 53, 57 (Ala. 2007).
Smith argues that Georgia law applies to her claims.
She
appears to contend that Georgia substantive law applies because
her ObTape was implanted in Georgia and because she received
some treatment related to her ObTape complications in Georgia.
Smith further argues that if Georgia substantive law applies,
the Court should apply an exception to lex fori based on her
interpretation of Georgia law.
Smith’s brief focuses entirely
on her argument that an exception to lex fori applies, and she
offers no argument about where her injury occurred.
the key question here.
But that is
“[U]nder Alabama law, a tort cause of
action stemming from a defective medical device accrues when the
medical device fails and injures the recipient of the device.”
Collins v. Davol, Inc., 56 F. Supp. 3d 1222, 1229 (N.D. Ala.
2014).
In Collins, an Alabama resident was implanted with a
hernia patch in Tennessee, and he claimed that the device failed
several years later and injured him.
The Collins court applied
Alabama
the
law
because
it
found
that
4
plaintiff’s
injuries
occurred in Alabama, where the plaintiff lived and the hernia
patch
allegedly
failed.
Id.
Likewise,
Smith’s
ObTape
complication symptoms arose in Alabama, and she sought medical
treatment for some of those symptoms in Alabama.
The Court thus
concludes that Smith’s injury occurred in Alabama.
Therefore,
Alabama law—both substantive and procedural—applies to Smith’s
claims.
Smith
does
not
under Alabama law.
that
must
accrues.
Ala. Code § 6–2–38(l).
as
the
party
her
claims
are
time-barred
Under Alabama law, a claim for personal
injuries
soon
be
dispute
brought
in
within
whose
maintain an action thereon.”
2d 156, 159 (Ala. 1992).
two
years
after
the
claim
“A cause of action accrues as
favor
it
arises
is
entitled
to
Smith v. Medtronic, Inc., 607 So.
The statute of limitations begins to
run when a plaintiff first suffers damages as a result of the
act causing the injury.
rule in most cases.
Id.
Alabama does not have a discovery
See, e.g., Utilities Bd. of City of Opp v.
Shuler Bros., 138 So. 3d 287, 293-94 (Ala. 2013) (noting that
Alabama only applies discovery rule to fraud actions and cases
involving the fraudulent concealment of the existence of a cause
of action).
Under this authority, Smith’s claims accrued when
she first suffered complications due to ObTape in 2005.
Smith
did not bring her action until 2013, so her claims are timebarred.
5
CONCLUSION
As discussed above, Mentor’s Motion for Summary Judgment
(ECF No. 34 in 4:13-cv-15) is granted.
IT IS SO ORDERED, this 8th day of October, 2015.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
6
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