Bromley v. Mentor Corporation et al

Filing 50

ORDER granting (45) Motion for Partial Summary Judgment in case 4:13-cv-00017-CDL; granting (29) Motion for Partial Summary Judgment in case 4:13-cv-00339-CDL; granting in part and denying in part (29) Motion for Partial Summary Judgment in case 4:13-cv-00464-CDL; granting (29) Motion for Partial Summary Judgment in case 4:13-cv-00485-CDL; granting in part and denying in part (27) Motion for Partial Summary Judgment in case 4:14-cv-00060-CDL; granting in part and denying in part (27) Motion for Partial Summary Judgment in case 4:14-cv-00062-CDL. Ordered by US DISTRICT JUDGE CLAY D LAND on 11/19/2015. (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 Nos.
4:13-cv-00017
4:13-cv-00339
4:13-cv-00464
4:13-cv-00485
4:14-cv-00060
4:14-cv-00062

*
*

(Bromley)
(Larranaga)
(Kaiser)
(Hill)
(Burt)
(Alexander)

*
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.

Plaintiffs Lisa Bromley,

Maria Larranaga, Marian Kaiser, Sandy Anne Hill, Barbara Burt, and
Leslie Alexander were implanted with ObTape and assert that they
suffered injuries caused by ObTape.

Each Plaintiff brought a

product liability action against Mentor, contending that ObTape
had design and/or manufacturing defects that proximately caused
her

injuries.

Plaintiffs

also

assert

that

Mentor

did

not

adequately warn their physicians about the risks associated with
ObTape.

Mentor

seeks

Plaintiffs’ claims.
partial

summary

partial

judgment

on

several

of

For the reasons set forth below, Mentor’s

judgment

Larranaga, and Hill.

summary

motions

are

granted

as

to

Bromley,

The motions are granted in part and denied

in part as to Kaiser, Burt, and Alexander.

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.”
P. 56(a).

Fed. R. Civ.

In determining whether a genuine dispute of material

fact exists to defeat a motion for summary judgment, the evidence
is

viewed

summary

in

the

judgment,

light

drawing

opposing party’s favor.
242,

255

most

(1986).

favorable

all

to

the

justifiable

party

opposing

inferences

in

the

Anderson v. Liberty Lobby, Inc., 477 U.S.

A fact

is

material

necessary to the outcome of the suit.

if

it

is

Id. at 248.

relevant or
A factual

dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.

Id.

FACTUAL BACKGROUND
I.

Lisa Bromley (ECF No. 45 in 4:13-cv-17)
On October 18, 2005, Dr. Fawad Zafar implanted Bromley with

ObTape

to

treat

her

stress

urinary

incontinence.

In

2007,

Bromley’s husband began to experience comfort during sex, “like he
was hitting some type of plastic or something that was hard.”
Bromley Dep. 93:10-21, ECF No. 45-5.

The problem worsened, and

Bromley’s husband “said he could actually, you know, see [the
ObTape], that it was actually -- that it looked like it was not
supposed to be coming out, but it looked like it was -- you know,
it was falling apart.”

Id. at 96:20-97:7.

2

In September 2008, Bromley went to Dr. Priscilla Ruhe with
complaints of burning with urination.

At the time, according to

Bromley, “you could see the actual mesh falling out.”
106:14-18.

Id. at

Dr. Ruhe saw an exposed piece of ObTape in Bromley’s

vagina, and she told Bromley that “it looked like it was part of
the bladder sling” and “that it shouldn’t have been falling out.”
Id.

at

105:18-106:4.

material”

was

irritation.”

Dr.

“causing
Id.

portion of ObTape.

at

Ruhe

[Bromley]

told

Bromley

pain

107:15-23.

Dr.

in

that

the

Ruhe

the

vagina

removed

“excess

from

the

the

eroded

Bromley contends that she did not connect her

complications to ObTape until she consulted another doctor in 2011
and learned that the remainder of the ObTape would have to be
removed.
Bromley is an Iowa resident whose ObTape-related treatment
took place in Iowa.

She filed her action in Hennepin County

District Court of the State of Minnesota and served Mentor with
the Complaint on December 21, 2012.

Bromley brought claims for

strict liability and negligence.
II.

Maria Larranaga (ECF No. 29 in 4:13-cv-339)
Larranaga

saw

her

gynecologist,

Dr.

Steve

Vouis,

for

treatment of stress urinary incontinence.

Dr. Vouis implanted

Larranaga with ObTape on December 29, 2005.

Larranaga did not see

any materials from Mentor regarding ObTape, and she did not speak
with any representatives of Mentor about the product.

3

Larranaga

asserts that Mentor misrepresented to Dr. Vouis (or concealed from
him) an accurate complication rate for ObTape, the severity of
known ObTape complications, and true information about ObTape’s
physical characteristics.

She also contends that if Dr. Vouis had

known the true risks of ObTape, he would not have implanted it in
Larranaga.

But Larranaga did not point the Court to any evidence

on this point.1
Larranaga returned to Dr. Vouis in October 2008 complaining
of recurrent incontinence and dyspareunia.
connect

Larranaga’s

attributes

symptoms

several

with

Dr. Vouis did not

ObTape.

symptoms—including

Larranaga

dyspareunia,

currently
pain,

and

incontinence—to ObTape.
Larranaga
treatment

is

took

a

place

California
in

resident

California.

She

whose

ObTape-related

filed

her

action

in

Hennepin County District Court of the State of Minnesota on July
3,

2013.

negligence,

Larranaga
breach

of

brought

claims

express

for

warranty,

strict
breach

liability,
of

implied

warranty, common law fraud, constructive fraud, and negligent and
intentional misrepresentation.

1

Larranaga asserts that Dr. Vouis testified that he would not have used
ObTape if he had known of its true risks. Larranaga cites several pages
of Dr. Vouis’s deposition in support of these assertions (108, 119-121),
but she did not include those pages in the deposition excerpt of Dr.
Vouis that she submitted to the Court, so the present record does not
support her assertions.
“Material facts not supported by specific
citation to particular parts of materials in the record . . . will not be
considered by the court.” M.D. Ga. L.R. 56.

4

III. Marian Kaiser (ECF No. 29 in 4:13-cv-464)
Kaiser sought treatment for stress urinary incontinence from
Dr. David Guthman.
May

16,

2005.

Dr. Guthman implanted Kaiser with ObTape on

Kaiser

did

not

see

any

materials

from

Mentor

regarding ObTape, and she did not speak with any representatives
of Mentor about the product.

Kaiser asserts that she suffered

various injuries caused by ObTape.
Kaiser asserts that Mentor misrepresented to Dr. Guthman (or
concealed from him) an accurate complication rate for ObTape, the
severity of known ObTape complications, and true information about
ObTape’s physical characteristics.
ECF No. 31-3.

E.g., Guthman Dep. 42:8-43:22,

She also pointed to evidence that if Dr. Guthman

had known the true risks of ObTape, he would not have implanted it
in Kaiser.
patient,

Id. at 38:19-21 (“[I]n pursuit of the health of our

we

possible.”);

always
id.

at

try

to

use

78:14-19

the

safest,

(stating

lowest-risk

that

Dr.

Guthman

device
would

always choose the safer alternative product); id. at 85:17-86:2
(stating

that

if

Mentor

had

provided

him

with

additional

information suggesting that ObTape had a higher risk than other
products, he “would probably have searched out an alternative”).
Kaiser is an Illinois resident whose ObTape-related treatment
took place in Illinois.

She filed her action in Hennepin County

District Court of the State of Minnesota and served Mentor with
the Complaint on September 10, 2013.

5

Kaiser brought claims for

strict liability, negligence, breach of express warranty, breach
of implied warranty, common law fraud, constructive fraud, and
negligent and intentional misrepresentation.
IV.

Sandy Anne Hill (ECF No. 29 in 4:13-cv-485)
Hill

saw

Dr.

Clifford

urinary incontinence.

Sarnacki

for

treatment

of

stress

Dr. Sarnacki diagnosed Hill with bladder

prolapse and recommended surgery.

On July 30, 2004, Dr. Sarnacki

implanted Hill with ObTape, although Hill claims that she did not
learn about the implanted device until sometime later.

Hill did

not see any materials from Mentor regarding ObTape, and she did
not speak with any representatives of Mentor about the product.
Hill asserts that the ObTape did not cure her incontinence and
that it caused her abdominal pain.
Hill

appears

to

assert

that

Mentor

misrepresented

to

Dr.

Sarnacki (or concealed from him) an accurate complication rate for
ObTape,

the

information

severity
about

of

ObTape’s

known

ObTape

physical

complications,

characteristics.

and

true

She

also

appears to assert that if Dr. Sarnacki had known the true risks of
ObTape, he would not have implanted it in Hill.

But Hill did not

point the Court to any evidence on this point.2

2

Dr. Sarnacki passed away before his deposition could be taken. Hill did
not point to any evidence that Dr. Sarnacki relied on information from
Mentor in deciding to implant Hill with ObTape or that he would have made
a different decision if he had been given different information.
The
Court cannot speculate as to what Dr. Sarnacki might have said had he
been able to testify.

6

Hill is a Texas resident whose ObTape-related treatment took
place in Texas.
Court

of

the

She filed her action in Hennepin County District
State

of

Minnesota

Complaint on September 27, 2013.
liability,
implied

negligence,

warranty,

breach

common

served

Mentor

with

the

Hill brought claims for strict

of

law

and

express

fraud,

warranty,

constructive

breach
fraud,

of
and

negligent and intentional misrepresentation.
V.

Barbara Burt (ECF No. 27 in 4:14-cv-60)
Burt sought treatment for stress urinary incontinence from

Dr. Thomas Truluck.
April

24,

2006.

Dr. Truluck implanted Burt with ObTape on

Burt

did

not

see

any

materials

from

Mentor

regarding ObTape, and she did not speak with any representatives
of

Mentor

about

the

product.

Burt

asserts

that

she

suffered

various injuries caused by ObTape.
Before he implanted Burt with ObTape, Dr. Truluck received
training from Mentor and reviewed the ObTape product information
data

sheet.

Truluck

Dep.

26:6-17,

ECF

No.

29-3.

A

Mentor

representative told Dr. Truluck that the approach for implanting
ObTape was a new and safer approach.

Dr. Truluck testified that

if he had known that ObTape had a higher rate of extrusion than
other slings, he would not have implanted Burt with it.

Id. at

42:3-9.
Burt

is

a

North

Carolina

resident

treatment took place in North Carolina.

7

whose

ObTape-related

She filed her action in

Hennepin
served

County

Mentor

District

with

the

Court

of

Complaint

the
on

State

of

February

3,

Minnesota
2014.

and
Burt

brought claims for strict liability, negligence, breach of express
warranty,

breach

constructive

of

implied

warranty,

common

and

negligent

and

fraud,

law

fraud,

intentional

misrepresentation.
VI.

Leslie Alexander (ECF No. 27 in 4:14-cv-62)
Dr.

Thomas

Phillips

September 27, 2004.
Mentor

regarding

representatives

of

implanted

Alexander

with

ObTape

on

Alexander did not see any materials from

ObTape,
Mentor

and

she

about

did

the

not

speak

product.

Dr.

with

any

Phillips

testified that if he had known that ObTape had a higher rate of
infection than other slings, he would not have implanted ObTape in
his patients.

Phillips Dep. 20:9-19, ECF No. 29-3.

Alexander suffered recurrent incontinence in 2007 and sought
treatment from Dr. Roberto Ferraro in 2008.

Dr. Ferraro conducted

exploratory surgery in June 2008 and discovered that Alexander’s
ObTape had eroded through her vaginal wall.
the

portion

of

ObTape

that

he

could

Dr. Ferraro removed
remove.

Alexander

acknowledges that Dr. Ferraro told her in 2008 that she suffered a
vaginal erosion of the ObTape. Alexander Dep. 21:21-22:9, ECF 275.

Alexander contends that she did not connect her complications

to ObTape until she saw a television commercial regarding mesh
injuries in 2013.

8

Alexander is a North Carolina resident whose ObTape-related
treatment took place in North Carolina.

She filed her action in

Hennepin

State

County

District

Court

of

the

of

Minnesota

served Mentor with the Complaint on February 3, 2014.

and

Alexander

brought claims for strict liability, negligence, breach of express
warranty,

breach

constructive

of

implied

warranty,

common

and

negligent

and

fraud,

law

fraud,

intentional

misrepresentation.
DISCUSSION
Each Plaintiff filed her action in Minnesota state court, and
Mentor

removed

each

Plaintiff’s

action

to

the

District Court for the District of Minnesota.
later

transferred

to

this

Court

as

part

litigation proceeding regarding ObTape.
purposes

of

summary

Plaintiffs’ claims.

judgment

that

of

United

States

The cases were
a

multidistrict

The parties agree for

Minnesota

law

applies

to

See In re Mentor Corp. ObTape Transobturator

Sling Prods. Liab. Litig., No. 4:08-md-2004, 2013 WL 286276, at *7
(concluding that Minnesota law applied to claims of non-Minnesota
ObTape plaintiffs who brought their actions in Minnesota).
I.

Strict Liability Claims
Mentor contends that Bromley and Alexander’s strict liability

claims

are

time-barred

under

Minnesota

law.

The

statute

limitations for a strict liability claim is four years.
Stat.

§ 541.05

subd.

2

(“[A]ny

9

action

based

on

the

of

Minn.
strict

liability of the defendant and arising from the manufacture, sale,
use or consumption of a product shall be commenced within four
years.”).

Under

Minnesota

law,

“a

claim

involving

personal

injuries allegedly caused by a defective product accrues when two
elements are present: ‘(1) a cognizable physical manifestation of
the disease or injury, and (2) evidence of a causal connection
between the injury or disease and the defendant’s product, act, or
omission.’”

Klempka v. G.D. Searle & Co., 963 F.2d 168, 170 (8th

Cir. 1992) (quoting Hildebrandt v. Allied Corp., 839 F.2d 396, 398
(8th Cir. 1987)) (applying Minnesota law).
“A plaintiff who is aware of both her injury and the likely
cause of her injury is not permitted to circumvent the statute of
limitations by waiting for a more serious injury to develop from
the same cause.”
suffered

injuries

Id.
and

For example, in Klempka, the plaintiff
was

diagnosed

with

chronic

pelvic

inflammatory disease, which her doctor said was caused by the
plaintiff’s intrauterine device. Id. at 169. Several years later,
the

plaintiff

intrauterine

was
device

told

that

caused

she

her

was

infertile

infertility.

and
Id.

that

the

Applying

Minnesota law, the Eighth Circuit concluded that the plaintiff’s
cause of action accrued when she first learned that she had an
injury (chronic pelvic inflammatory disease) that was caused by
the intrauterine device.

Id. at 170.

10

Bromley cannot seriously deny that she knew she suffered some
injuries caused by ObTape in September 2008 when Dr. Ruhe told
Bromley that her pain was caused by the exposed ObTape.

And

Alexander cannot seriously dispute that she knew she suffered some
injuries caused by ObTape in June 2008 when Dr. Ferraro told her
that her ObTape had eroded through her vaginal wall.
argues,
consulted

however,
a

that

different

her

claims

doctor

not

accrue

until

she

2011

in

did

and

learned

that

the

remainder of her ObTape would have to be removed.
asserts

that

her

claims

did

Bromley

not

accrue

And Alexander

until

she

saw

an

advertisement regarding mesh injuries in 2013.
Bromley

and

Alexander

did

not

point

to

any

Minnesota

authority holding that a plaintiff must be on actual notice that
her

specific

precedent

injuries

establishes

were
that

caused
a

by

claim

a

defect.

accrues

when

Rather,
the

the

plaintiff

becomes aware of an injury and a causal connection between the
injury and the defendant’s product.
Bromley

and

Alexander

Klempka, 963 F.2d at 170.

nonetheless

contend

that

one

Eighth

Circuit case and one Minnesota District Court case support denial
of summary judgment in this case. The Court disagrees. First, they
point to Tuttle v. Lorillard Tobacco Co., 377 F.3d 917 (8th Cir.
2004). In Tuttle, the district court found that the decedent’s
smokeless

tobacco

decedent

discovered

product
a

lump

liability
in

his

11

action

cheek.

accrued
The

when

Eighth

the

Circuit

reversed because the decedent’s doctor initially told the decedent
that the lump was caused by an oral infection and was treatable
with

antibiotics—not

tobacco.

Id.

at

that

922.

it

was

Second,

oral

Bromley

cancer
and

caused

Alexander

by

the

point

to

Huggins v. Stryker Corp., 932 F. Supp. 2d 972 (D. Minn. 2013).

In

Huggins, the plaintiff asserted that the defendant’s pain pump
caused a condition that resulted in degeneration of his cartilage.
The plaintiff’s doctor discovered the loss of cartilage in 2002,
but he did not connect the condition to the pain pump or tell the
plaintiff that there was such a connection.

The district court

noted that the “first article recognizing a potential causal link
between

pain

published

pumps”

until

and

2007.

the

plaintiff’s

Id.

Tuttle

and

condition
Huggins

distinguishable from Bromley and Alexander’s cases.
Tuttle

and

Huggins,

there

is

no

dispute

was

that

are

not
both

Unlike in

Bromley

and

her

doctor connected Bromley’s injuries to ObTape in September 2008,
and there is no dispute that Alexander and her doctor connected
Alexander’s injuries to ObTape in June 2008.
Bromley

and

Alexander

argue

that

even

if

Minnesota’s

discovery rule does not save their strict liability claims, the
statute of limitations should be tolled by fraudulent concealment.
“Fraudulent concealment, if it occurs, will toll the running of
the

statute

of

limitations

until

discovery

or

reasonable

opportunity for discovery of the cause of action by the exercise

12

of due diligence.”

Holstad v. Sw. Porcelain, Inc., 421 N.W.2d

371, 374 (Minn. Ct. App. 1988); accord Hydra-Mac, Inc. v. Onan
Corp.,

450

N.W.2d

fraudulent

913,

concealment

918

(Minn.

has

the

1990).

burden

“The

of

party

showing

claiming
that

the

concealment could not have been discovered sooner by reasonable
diligence

on

negligence.”

his

part

and

was

not

the

result

of

his

Wild v. Rarig, 234 N.W.2d 775, 795 (Minn. 1975).

own
As

discussed above, Dr. Ruhe told Bromley in September 2008 that her
pain was caused by ObTape and that the mesh “shouldn’t have been
falling out.”

Bromley Dep. 105:18-106:4.

And Dr. Ferraro told

Alexander in June 2008 that her ObTape had eroded through her
vaginal wall.

A reasonable person in that situation would take

some action to follow up on the cause of her injuries and try to
find

out

whether

the

injuries

were

caused

by

a

problem

with

ObTape, a problem with the implant surgery, or some other problem.
But Bromley and Alexander pointed to no evidence that they took
any action to investigate their potential claims even though they
knew there was a connection between their injuries and the ObTape.
Under

these

circumstances,

the

Court

concludes

that

fraudulent

concealment does not toll the statute of limitations.

Bromley’s

strict liability claim accrued in September 2008, and Alexander’s
accrued in June 2008.
years of the accrual.

Neither filed her Complaint within four
The strict liability claims of Bromley and

Alexander are therefore time-barred.

13

II.

Misrepresentation and Common Law Fraud Claims
Larranaga, Kaiser, Hill, Burt, and Alexander assert claims

for common law fraud, negligent misrepresentation, and intentional
misrepresentation.

Mentor seeks summary judgment on these claims,

contending that Minnesota law requires each Plaintiff to prove
that she was injured because she relied on a misrepresentation
from Mentor.

But under Minnesota law, a misrepresentation claim

in a medical device case can be premised on the manufacturer’s
alleged

misrepresentations

misrepresentations

directly

to
to

the

a

physician—not

patient.

Kociemba

just
v.

G.D.

Searle & Co., 707 F. Supp. 1517, 1525 (D. Minn. 1989); accord In
re Minnesota Breast Implant Litig., 36 F. Supp. 2d 863, 879 (D.
Minn. 1998) (“Statements made by a pharmaceutical representative
directly to a physician should be expected to be relied upon[.]”).
Thus, if a plaintiff can establish that the manufacturer made
misrepresentations

to

her

physician

regarding

the

risks

of

a

product and that the physician would not have recommended the
product for the plaintiff had he known the product’s true risks,
then the reliance and causation elements are satisfied.3

3

Mentor
seeks
summary
judgment
on
Plaintiffs’
“negligent
misrepresentation” claims because Minnesota has not expressly recognized
the tort of negligent misrepresentation involving the risk of physical
harm.
See Smith v. Brutger Cos., 569 N.W.2d 408, 413 (Minn. 1997)
(declining to recognize the tort of negligent misrepresentation with
physical harm but stating that the decision did “not foreclose the
possibility of recognizing
in
Minnesota
the tort of negligent
misrepresentation involving the risk of physical harm” under a different
factual
scenario—with
an
actionable
misrepresentation,
reasonable
reliance, and a causal connection).
In support of their “negligent

14

Here,
them

and

Plaintiffs
induce

assert

them

to

that

Mentor,

undergo

the

intending

ObTape

to

defraud

procedure,

made

misrepresentations to their physicians that induced the physicians
to recommend ObTape to Plaintiffs.

Plaintiffs further contend

that they relied on their doctors in deciding to proceed with the
ObTape

procedure.

Kaiser,

Burt,

and

Alexander

each

produced

evidence that their physicians would not have implanted them with
ObTape had they known its true risks.

Thus, for Kaiser, Burt, and

Alexander, the Court is satisfied that a genuine fact dispute
exists on the justifiable reliance and causation elements, and
Mentor is not entitled to summary judgment on their fraud and
misrepresentation claims.
Larranaga and Hill, however, did not point the Court to any
evidence that their physicians relied on a misrepresentation from
Mentor in selecting ObTape or that the physicians would not have
recommended ObTape had they known its true risks.

They contend

that the Court should apply a “heeding presumption”—a “rebuttable
presumption that the injured person would have heeded an adequate
warning, had one been provided,” which Minnesota has recognized in
certain product cases.

Prairie v. Mio Mech. Corp., No. 27-CV-12-

14077, 2013 WL 3869264, at *6 (Minn. Dist. Ct. June 25, 2013).

misrepresentation” claims, Plaintiffs allege that
reasonable care in providing warnings to their
See, e.g., Burt Compl. ¶¶ 100-104, ECF No. 1-1
Plaintiff’s “negligent misrepresentation” claims
warn claims, which Minnesota does recognize, so
grant summary judgment on this basis.

15

Mentor did not exercise
doctors about ObTape.
in 4:14-cv-60.
Thus,
are simply failure to
the Court declines to

For example, in Prairie, the Minnesota trial court presumed that a
window washer who died after falling from the defendant’s roof
rigger platform product would have heeded an adequate instruction
regarding
given.

the

Id.

proper

way

to

secure

the

platform

had

one

been

But all Prairie allows the Court to presume is that

Plaintiffs’ physicians would have paid attention to an additional
warning about the risks of ObTape.

In other words, Prairie allows

the Court to presume that the physicians would have considered the
infection

and

erosion

rates—among

other

considerations—in

determining which product to select for their patients.
do

not,

however,

permit

the

Court

to

speculate

The cases

about

physicians would have weighed the additional warnings.
reason, the heeding presumption does not apply.

how

the

For this

Larranaga and

Hill did not point to sufficient evidence to create a fact dispute
on

reliance

and

causation,

so

Mentor

is

entitled

to

summary

judgment on their misrepresentation and fraud claims.
III. Constructive Fraud Claims
Larranaga,
“constructive
constructive

Kaiser,

fraud”
fraud

Hill,

Burt,

claims.
claims

Mentor

fail

and

Alexander

contends

because

Mentor

that
did

brought

Plaintiffs’
not

owe

a

fiduciary duty to Plaintiffs; under Minnesota law, “[c]onstructive
fraud reposes exclusively in the context of fiduciary obligations
and is simply a characterization of a breach of such a duty.”

16

Perl v. St. Paul Fire & Marine Ins. Co., 345 N.W.2d 209, 213
(Minn. 1984).
The crux of Plaintiffs’ “constructive fraud” claims is that
Mentor

had

certain

intentionally

information

concealed

it

about

from

the

risks

Plaintiffs’

of

ObTape

physicians.

e.g., Burt Compl. ¶¶ 92-98, ECF No. 1-1 in 4:14-cv-60.

but
See,

In other

words, Plaintiffs are asserting a classic fraudulent concealment
claim, which is recognized under Minnesota law.
N.W.2d at 350

See Flynn, 627

(“Under Minnesota law, fraudulent misrepresentation

based on the concealment of a material fact occurs when one party
knowingly conceals a material fact that is ‘peculiarly within his
own knowledge,’ and the other party relies on the presumption that
the fact does not exist.”) (quoting Richfield Bank & Trust Co. v.
Sjogren, 309 Minn. 362, 364, 244 N.W.2d 648, 650 (1976)).
As discussed above, Kaiser, Burt, and Alexander each produced
evidence that their physicians would not have implanted them with
ObTape had they known its true risks, which Mentor concealed from
them.

Therefore, the Court denies summary judgment as to their

fraudulent concealment claims.

But Larranaga and Hill did not

point to sufficient evidence of causation and reliance, so Mentor
is entitled to summary judgment on their fraudulent concealment
claims.

17

IV.

Breach of Warranty Claims
Larranaga, Kaiser, Hill, Burt, and Alexander brought breach

of warranty claims.
time-barred.

Mentor contends that the warranty claims are

Larranaga,

Kaiser,

Burt,

and

Alexander

do

not

contest summary judgment as to their breach of warranty claims, so
Mentor’s motion as to those claims is granted.
Hill
claims.

contests

summary

judgment

on

her

breach

of

Mentor argues that her claims are time-barred.

warranty
But even

if Hill’s breach of warranty claims are not time-barred, Hill’s
breach of warranty claims fail for the same reasons her fraud and
misrepresentation claims fail: Hill did not point to any evidence
that any breach of warranty by Mentor caused her injuries.

“To

establish a warranty claim the plaintiff must basically prove: the
existence of a warranty, a breach, and a causal link between the
breach and the alleged harm.”

Daigle v. Ford Motor Co., 713 F.

Supp. 2d 822, 825 (D. Minn. 2010) (quoting Peterson v. Bendix Home
Sys., Inc., 318 N.W.2d 50, 52–3 (Minn. 1982)).

Hill did not point

to any evidence that Mentor made warranties directly to her.

She

also did not point to any evidence of a causal link between any
representation Mentor made to Dr. Sarnacki and the alleged harm to
Hill.

The Court thus concludes that Mentor is entitled to summary

judgment on Hill’s breach of warranty claims.

18

CONCLUSION
As discussed above, the Court makes the following rulings on
Mentor’s partial summary judgment motions:
Lisa Bromley.

Mentor’s motion for summary judgment (ECF No.

45 in 4:13-cv-17) is granted.

Only Bromley’s negligence claim

remains pending for trial.
Maria

Larranaga.

Mentor’s

motion

for

judgment (ECF No. 29 in 4:13-cv-339) is granted.

partial

summary

Only Larranaga’s

negligence and strict liability claims remain pending for trial.
Marian Kaiser.

Mentor’s motion for summary judgment (ECF No.

29 in 4:13-cv-464) is granted as to Kaiser’s breach of warranty
claims.

Mentor’s motion is denied as to Kaiser’s intentional

misrepresentation,
fraudulent

negligent

concealment

misrepresentation,

claims.

Those

claims,

fraud,

along

with

and
her

strict liability and negligence claims, remain pending for trial.
Sandy Anne Hill.

Mentor’s motion for summary judgment (ECF

No. 29 in 4:13-cv-485) is granted.

Only Hill’s negligence and

strict liability claims remain pending for trial.
Barbara Burt.
27

in

4:14-cv-60)

claims.

Mentor’s

misrepresentation,
fraudulent

Mentor’s motion for summary judgment (ECF No.
is

granted

motion

is

negligent

concealment

as

to

denied

Burt’s
as

to

breach
Burt’s

misrepresentation,

claims.

Those

claims,

of

warranty

intentional
fraud,

along

with

and
her

strict liability and negligence claims, remain pending for trial.

19

Leslie Alexander.
No.

27

in

Mentor’s motion for summary judgment (ECF

4:14-cv-62)

is

granted

as

to

liability claim and breach of warranty claims.

Alexander’s

strict

Mentor’s motion is

denied as to Alexander’s intentional misrepresentation, negligent
misrepresentation,

fraud,

and

fraudulent

concealment

claims.

Those claims, along with her negligence claim, remain pending for
trial.
Within seven days of the date of this Order, the parties
shall notify the Court whether the parties agree to a Lexecon
waiver.
IT IS SO ORDERED, this 19th day of November, 2015.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

20