Robinson Watson v. Mentor Corporation et al

Filing 51

ORDER granting 47 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE CLAY D LAND on 04/19/2016. (CCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
* MDL Docket No. 2004
4:08-MD-2004 (CDL)
*
Case Nos.
* 4:13-cv-27 (Watson)

IN RE MENTOR CORP. OBTAPE
TRANSOBTURATOR SLING PRODUCTS
LIABILITY LITIGATION

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

Melissa Robinson Watson was implanted with ObTape and asserts
that she suffered injuries caused by ObTape.

Watson brought a

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

injuries.

Watson

also

asserts

that

Mentor

did

not

adequately warn her physicians about the risks associated with
ObTape.

Mentor

seeks

summary

judgment

contending that they are time-barred.

on

Watson’s

claims,

For the reasons set forth

below, Mentor’s summary judgment motion (ECF No. 47 in 4:13-cv27) 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
Plaintiff

Melissa

Robinson

Watson

sought

treatment

stress urinary incontinence from Dr. Bruce Green.
implanted Watson with ObTape on May 17, 2004.

for

Dr. Green

In late June

2004, Watson returned to see Dr. Green, complaining of vaginal
discharge.
ObTape,

and

Dr. Green examined Watson, found an erosion of the
told

“sticking out.”
27.

Watson

that

a

small

piece

of

ObTape

was

Watson Dep. 96:8-14, ECF No. 47-4 in 4:13-cv-

Dr. Green recommended surgery to remove the eroded portion

of Watson’s ObTape.

Watson understood that the erosion likely

caused her discharge symptoms, and she understood that Dr. Green
planned to “clip” the exposed piece of mesh.

Id. at 97:7-24.

Dr. Green did note that Watson’s diabetes was a factor that may
have slowed her healing process.

2

Dr. Green removed the eroded

portion of Watson’s ObTape in July 2004.

Her wound healed, and

her bleeding and discharge stopped.
In January 2005, Watson returned to Dr. Green complaining
of

recurrent

suggested

incontinence

another

sling

and

vaginal

procedure.

discharge.
At

that

Dr.
time,

Green
Watson

understood that her sling had “come apart” and come through her
vaginal wall, and she understood that it was not working.
at 178:22-179:23.

Id.

On January 17, 2005, Dr. Green removed some

of Watson’s remaining ObTape and implanted her with a different
sling.

Dr. Green told Watson that he had to take out some of

the ObTape.
Watson is Georgia resident whose ObTape-related treatment
took place in Georgia.
with

a

copy

of

her

On January 9, 2013, Watson served Mentor
Complaint

captioned

in

District Court of the State of Minnesota.

Hennepin

County

She brought claims

for strict liability and negligence.
DISCUSSION
Watson

filed

her

action

in

Minnesota

state

court,

and

Mentor removed the action to the United States District Court
for the District of Minnesota.

The case was later transferred

to this Court as part of a multidistrict litigation proceeding
regarding ObTape.

The parties agree for purposes of summary

judgment that Minnesota law applies to Plaintiffs’ claims.
In

re

Mentor

Corp.

ObTape

Transobturator

3

Sling

Prods.

See
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).
Mentor

contends

under Minnesota law.

that

Plaintiffs’

claims

are

time-barred

The statute of limitations for a strict

liability claim is four years.

Minn. Stat. § 541.05 subd. 2

(“[A]ny action based on the strict liability of the defendant
and arising from the manufacture, sale, use or consumption of a
product shall be commenced within four years.”).

The statute of

limitations for a negligence claim is six years.

Minn. Stat.

§ 541.05 subd. 1(5) (establishing six-year limitation period for
personal

injury

liability).

claims

not

arising

in

contract

or

strict

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

defendant’s product, act, or omission.’”

or

disease

and

the

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

4

from

the

same

plaintiff

cause.”

suffered

Id.

injuries

For
and

example,

was

in

diagnosed

Klempka,
with

the

chronic

pelvic inflammatory disease, which her doctor said was caused by
the plaintiff’s intrauterine device. Id. at 169. Several years
later, the plaintiff was told that she was infertile and that
the intrauterine device caused her infertility.

Id.

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.
Here,
connection

Id. at 170.

Watson

contends

between

ObTape

that

and

she

her

did

not

injuries

learn

until

she

of

a

saw

a

television commercial regarding mesh complications during 2012.
But Watson knew that she suffered some injuries caused by ObTape
well before then.

By July 2004, Watson knew that her ObTape had

eroded and was causing vaginal discharge.

Although Watson may

have believed that her diabetes hindered the healing process
following her implant surgery, she cannot seriously dispute that
she knew there was a complication with her ObTape.
January

2005—after

her

problems with ObTape.

wound

healed—Watson

continued

And by
to

have

She believed that her ObTape was not

working, and she knew that her doctor recommended removing it
and replacing it with a different sling.
by

January

2005

that

there

was

5

a

Therefore, Watson knew

likely

connection

between

ObTape and some of her injuries.

She did not file her complaint

until approximately eight years later, in January 2013.
Watson

contends

that

it

is

not

enough

that

she

connection between ObTape and some of their injuries.

made

a

Rather,

she appears to argue that she must have been on notice that a
defect in ObTape caused her injuries.

Watson did not point to

any Minnesota authority holding that a plaintiff must be on
actual

notice

that

product defect.

her

specific

injuries

were

caused

by

a

Rather, the precedent establishes that a claim

accrues when the plaintiff becomes aware of an injury and a
causal

connection

product.

between

the

injury

and

the

defendant’s

Klempka, 963 F.2d at 170.

Watson nonetheless contends that two Eighth Circuit cases
and one Minnesota District Court case support denial of summary
judgment.

The

Court

disagrees.

First,

Watson

points

to

Hildebrandt v. Allied Corp., 839 F.2d 396 (8th Cir. 1987), where
the plaintiffs alleged that they suffered lung damage due to
their exposure to a toxic chemical at their workplace.

But

there, unlike here, the plaintiffs’ doctors initially told the
plaintiffs that there was no correlation between their symptoms
and

the

chemical.

Id.

at

399.

The

Eighth

Circuit

thus

concluded that the plaintiffs’ claims did not accrue until the
cause

of

the

plaintiffs’

injuries

was

rationally

identified.

Second, Watson points to Tuttle v. Lorillard Tobacco Co., 377

6

F.3d 917 (8th Cir. 2004). In Tuttle, the district court found
that the decedent’s smokeless tobacco product liability action
accrued when the decedent discovered a lump in his cheek.

The

Eighth 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 that it was oral cancer
caused by the tobacco. Id. at 922.

Third, Watson points 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

connection.

or

tell

the

plaintiff

that

there

was

such

a

The district court noted that the “first article

recognizing a potential causal link between pain pumps” and the
plaintiff’s condition was not published until 2007.
Hildebrandt, Tuttle,
from Watson’s case.

and

Huggins

Id.

are all distinguishable

In Hildebrandt, Tuttle, and Huggins, the

plaintiffs suffered injuries that could have been caused by the
defendant’s product OR could have been caused by something else,
and the courts concluded that the cause of action did not accrue
until the plaintiffs had some objective information suggesting a
causal link between the product and the injury.

In contrast,

here, Watson suffered injuries that were connected to an erosion

7

of the ObTape, and Watson knew of, strongly suspected, or had
enough information to know of a connection between ObTape and at
least some of her injuries by the time her doctor excised the
ObTape and replaced it with another product.
Watson appears to argue that even if Minnesota’s discovery
rule does not save her 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
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 913, 918 (Minn. 1990). “The party claiming
fraudulent

concealment

has

the

burden

of

showing

that

the

concealment could not have been discovered sooner by reasonable
diligence

on

negligence.”

his

part

and

was

not

the

result

of

his

own

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

As discussed above, Watson knew of, strongly suspected, or
had enough information to know of a connection between ObTape
and at least some of her injuries by the time of her excision
procedure.

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

8

surgery,

or

some

other

problem. But Watson pointed to no evidence that she took any
action to investigate her potential claims even though she knew
(or

had

enough

information

to

know)

between her injuries and the ObTape.

there

was

a

connection

Under these circumstances,

the Court concludes that fraudulent concealment does not toll
the statute of limitations.
In summary, Watson did not file her complaint within six
years after her claims accrued.

Her claims are therefore time-

barred.
CONCLUSION
As discussed above, Mentor’s summary judgment motion (ECF
No. 47 in 4:13-cv-27) is granted.

IT IS SO ORDERED, this 19th day of April, 2016.
s/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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