Jackson v. Mentor Corporation et al

Filing 43

ORDER granting (37) Motion for Summary Judgment in case 4:13-cv-00093-CDL; granting (41) Motion for Summary Judgment in case 4:13-cv-00101-CDL; granting (34) Motion for Summary Judgment in case 4:13-cv-00151-C DL; granting (34) Motion for Summary Judgment in case 4:13-cv-00153-CDL; granting (40) Motion for Summary Judgment in case 4:13-cv-00241-CDL; granting (31) Motion for Summary Judgment in case 4:13-cv-00346-CDL; granting (31) Motion for Summary Ju dgment in case 4:13-cv-00377-CDL; granting (32) Motion for Summary Judgment in case 4:13-cv-00426-CDL; granting (29) Motion for Summary Judgment in case 4:13-cv-00483-CDL; granting (30) Motion for Summary Judgment in case 4:13-cv-00503-CDL; granting (25) Motion for Summary Judgment in case 4:14-cv-00061-CDL; granting (26) Motion for Summary Judgment in case 4:14-cv-00063-CDL. Ordered by US DISTRICT JUDGE CLAY D LAND on 12/21/2015. (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-93 (Jackson)
4:13-cv-101 (Rupert)
4:13-cv-151 (Charles)
4:13-cv-153 (Klum)
4:13-cv-241 (Leon)
4:13-cv-346 (Urbieta)
4:13-cv-377 (Lovell)
4:13-cv-426 (Suen)
4:13-cv-483 (Uriegas)
4:13-cv-503 (Degroot)
4:14-cv-61 (Hall)
4:14-cv-63 (Chambers)

*
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

Michele Jackson, Andrea Rupert, Wendy Charles, Carrie Klum, Olga
Leon,

Graciela

Urbieta,

Sharon

Lovell,

Arleen

Suen,

Sylvia

Uriegas, Debra Degroot, Libby Hall, and Sherry Lynn Chambers
were

implanted

with

ObTape

injuries caused by ObTape.
liability

action

against

and

assert

that

they

suffered

Each Plaintiff brought a product

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.

Plaintiffs brought their claims under several theories.
seeks summary judgment on all of their claims.
set

forth

below,

the

Mentor’s

summary

Mentor

For the reasons

judgment

motions

are

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.”
Civ. P. 56(a).

In determining whether a

genuine

Fed. R.

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
I.

Plaintiff Michele Jackson (ECF No. 37 in 4:13-cv-93)
Michele

incontinence

Jackson
from

Dr.

sought
Glen

treatment
Diacon.

for

Dr.

stress

Diacon

urinary

recommended

ObTape, and he implanted Jackson with ObTape on March 26, 2004.
In

October

2004,

Jackson

visited

Dr.

Diacon’s

assistant

and

complained of pain near the ObTape incision site, as well as

2

suprapubic discomfort and dyspareunia.
exposed graft material.
Dr. Daniel Barnes.
of the ObTape.

The assistant felt some

Jackson sought a second opinion from

Dr. Barnes diagnosed Jackson with an erosion

He recommended that Jackson have the exposed

portion of the ObTape removed, and he told Jackson that the
revision surgery “would most likely take away her pain.”
Dep. 16:6-13, ECF No. 37-7 in 4:13-cv-93.

Barnes

Dr. Barnes removed

portions of Jackson’s ObTape in November 2004.
Jackson

is

an

Oklahoma

resident

treatment took place in Oklahoma.

whose

ObTape-related

On March 27, 2013, Jackson

served Mentor with a copy of her Complaint captioned in Hennepin
County

District

brought

claims

Court
for

of

the

strict

State

liability,

of

Minnesota.

negligence,

Jackson
breach

of

express warranty, breach of implied warranty, common law fraud,
constructive

fraud,

and

negligent

and

intentional

misrepresentation.
II.

Plaintiff Andrea Rupert (ECF No. 41 in 4:13-cv-101)
Dr.

Murphy

Townsend

diagnosed

Andrea

Rupert

with

incontinence, and he implanted Rupert with ObTape on May 3,
2004.

After the surgery, Rupert’s incontinence improved.

In

June 2005, Rupert went to the emergency room with extreme pain
in her right groin, vaginal discharge and bleeding, and a foul
odor.

The emergency room doctor attributed Rupert’s symptoms to

a urinary tract infection.

3

Rupert went to Dr. Townsend for follow-up on her emergency
room visit.

According to Rupert, Dr. Townsend told her that she

had an infection and that “perhaps [her] body was not adapting
well to the” ObTape.
cv-101.

Dr.

removed.

On

Rupert Dep. 47:8-15, ECF No. 43-3 in 4:13-

Townsend
June

recommended

22,

2005,

Dr.

that

Rupert’s

Townsend

ObTape

removed

part

be
of

Rupert’s ObTape and drained an abscess he discovered during the
explant surgery.

At some point, Dr. Townsend came to believe

that ObTape was defective.
in 4:13-cv-101.

Townsend Dep. 19:15-18, ECF No. 43-3

He encouraged Rupert to contact Mentor to tell

Mentor about her complications with ObTape, and Rupert did so.
Id. at 18:18-19:10.

In August 2005, Rupert visited Dr. Thomas

Fassuliotis with recurrent incontinence.

Dr. Fassuliotis noted

that Rupert was concerned that half of her ObTape was still in
her body and that it may become infected.

Def.’s Mot. for Summ.

J. Ex. E, History & Physical Examination (Aug. 2, 2005), ECF No.
41-8 in 4:13-cv-101.

Dr. Fassuliotis also noted that Rupert

stated that “this may be a litigious issue with the manufacturer
of the Mentor Ob Tape.”

Id.1

1

Rupert objects to the medical record because it has not been
authenticated since scheduling conflicts prevented the parties from
taking Dr. Fassuliotis’s deposition before the dispositive motion
deadline. Rupert does not appear to dispute that the document is her
medical record from Dr. Fassuliotis’s office, which she produced to
Mentor during discovery.
The Court thus finds that this document
could be reduced to admissible evidence at trial and thus may be
considered at summary judgment.

4

Rupert is a Georgia resident whose ObTape-related treatment
took place in Georgia.
with

a

copy

of

her

On April 1, 2013, Rupert served Mentor
Complaint

captioned

District Court of the State of Minnesota.

in

Hennepin

County

Rupert brought claims

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

of

implied

warranty,

common

law

fraud,

constructive

fraud, and negligent and intentional misrepresentation.
III. Plaintiff Wendy Charles (ECF No. 34 in 4:13-cv-151)2
Wendy Charles sought treatment from Dr. Mitesh Parekh for
stress urinary incontinence.
implanted

Charles

with

On February 9, 2004, Dr. Parekh

ObTape.

In

April

2004

and

again

in

January 2005, Charles reported to Dr. Parekh with groin pain.
And

in

May

2005,

Charles

sent

Dr.

Parekh

a

medical

journal

article entitled “Groin Pain After a Tension-Free Vaginal Tape
or

Similar

Suburethral

Sling:

Management

Strategies”

expressed concern that ObTape was causing her groin pain.

and
After

Charles and Dr. Parekh discussed the pros and cons of removing
Charles’s ObTape, Charles decided to have the ObTape removed
because she believed it was causing her groin pain.
removed Charles’s ObTape on March 27, 2006.

2

Dr. Parekh

At her follow-up

Charles did not respond to Mentor’s summary judgment motion or
statement of material facts.
Therefore, under the Court’s local
rules, Mentor’s material facts are deemed admitted.
M.D. Ga. R. 56.
The Court has reviewed Mentor’s citations to the record and determined
that no genuine fact dispute exists.

5

visit, Charles reported that she was happy with the revision
surgery and that her groin pain symptoms were gone.
Charles

is

a

Pennsylvania

resident

treatment took place in Pennsylvania.

whose

ObTape-related

On May 7, 2013, Charles

served Mentor with a copy of her Complaint captioned in Hennepin
County

District

brought

claims

Court
for

of

the

strict

State

liability,

of

Minnesota.

negligence,

Charles
breach

of

express warranty, breach of implied warranty, common law fraud,
constructive

fraud,

and

negligent

and

intentional

misrepresentation.
IV.

Plaintiff Carrie Klum (ECF No. 34 in 4:13-cv-153)
Carrie Klum visited Dr. Sakina Khalidi for treatment of

stress urinary incontinence.
ObTape on June 3, 2004.

Dr. Khalidi implanted Klum with

In February 2005, Klum visited Dr.

Khalidi because she had been experiencing pressure in the lower
abdomen and an occasional bleed for about three weeks.
Khalidi examined Klum and saw some exposed ObTape.

Dr.

Dr. Khalidi

told Klum that the ObTape was infected and that the bleeding was
caused by the ObTape.
advised
removed.

that

the

Dr. Khalidi prescribed an antibiotic and

exposed

portion

of

ObTape

may

need

to

be

The next week, Dr. Khalidi removed a small segment of

Klum’s ObTape.

In February 2006, Klum returned to Dr. Khalidi

complaining of blood in her urine and vaginal bleeding.

Klum

understood from Dr. Khalidi that her body was rejecting the

6

ObTape

and

that

is

why

she

had

an

infection.

Dr.

Khalidi

advised Klum that the entire ObTape needed to be removed, but
when

Dr.

Khalidi

performed

the

revision

surgery

the

entire

ObTape could not be removed.
Klum is a Florida resident whose ObTape-related treatment
took place in Florida.
with

a

copy

of

her

On April 29, 2013, Klum served Mentor
Complaint

captioned

District Court of the State of Minnesota.

in

Hennepin

County

Klum brought claims

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

of

implied

warranty,

fraud,

and

negligent

and

common

intentional

law

fraud,

constructive

misrepresentation.

Her

husband Anthony brought a loss of consortium claim.
V.

Plaintiff Olga Leon (ECF No. 40 in 4:13-cv-241)
Dr.

Bernard

August 19, 2004.

Morris

implanted

Olga

Leon

with

ObTape

on

In January 2005, Leon returned to Dr. Morris

with complaints of pain and irritation.

Dr. Morris examined

Leon, diagnosed an erosion of the ObTape, and told Leon that
there was a problem with her ObTape and he would have to perform
a revision surgery.
cv-241.
2005.

Leon Dep. 162:7-15, ECF No. 42-3 in 4:13-

Dr. Morris removed Leon’s eroded ObTape on January 11,
Leon testified that she started thinking about bringing a

lawsuit regarding ObTape “after the second surgery.”
197:2-199:25.

Id. at

It is not clear from the present record whether

7

Leon meant the revision surgery she had in January 2005 or a
later surgery performed by a different doctor in 2006.
Leon

is

a

California

resident

treatment took place in California.

whose

ObTape-related

On June 10, 2013, Leon

served Mentor with a copy of her Complaint captioned in Hennepin
County District Court of the State of Minnesota.
claims

for

warranty,

strict
breach

constructive

liability,
of

fraud,

negligence,

breach

implied

warranty,

common

and

negligent

and

Leon brought
of

express

law

fraud,

intentional

misrepresentation.
VI.

Plaintiff Graciela Urbieta (ECF No. 31 in 4:13-cv-346)
Graciela Urbieta visited Dr. Charles Feinstein complaining

of urinary incontinence, and Dr. Feinstein recommended ObTape.
Dr. Feinstein implanted Urbieta with ObTape on March 8, 2005.
In January 2006, Urbieta went to the emergency room complaining
of a painful rash, leg pain, and vaginal odor.

She was admitted

to the hospital and treated for necrotizing fasciitis.

Later

that year, she was treated for abscesses by Dr. Marie Crandall.
Dr.

Crandall

became

concerned

that

Urbieta’s

ObTape

was

chronically infected; Dr. Crandall told Urbieta of this concern
and referred her to Dr. Stephanie Kielb for further evaluation.
Crandall

Dep.

54:8-21,

ECF

No.

31-8

in

4:13-cv-346.

Dr.

Crandall also told Urbieta that her ObTape might need to be
removed.

Urbieta Dep. 6:1-2, 59:3-13, ECF No. 31-5 in 4:13-cv-

8

346.

Dr.

ObTape,

and

Kielb

examined

told

Urbieta,

Urbieta

that

found

the

an

ObTape

erosion

would

of

have

to

the
be

removed because it was causing discharge and other problems.
Id. at 59:24-60:4; Kielb Dep. 42:13-44:4, ECF No. 31-9 in 4:13cv-346.

After

Dr.

Kielb

performed

the

excision

surgery

in

December 2006, Urbieta’s symptoms improved, and she no longer
had pus.

Urbieta Dep. 60:6-13.

Urbieta

is

an

Illinois

resident

treatment took place in Illinois.

whose

ObTape-related

On July 11, 2013, Urbieta

served Mentor with a copy of her Complaint captioned in Hennepin
County

District

brought

Court

claims

for

of

the

strict

State

of

liability,

Minnesota.

negligence,

Urbieta
breach

of

express warranty, breach of implied warranty, common law fraud,
constructive

fraud,

misrepresentation.

and
Her

negligent

husband

Mateo

and
brought

intentional
a

loss

of

consortium claim.
VII. Plaintiff Sharon Lovell (ECF No. 31 in 4:13-cv-377)
Sharon

Lovell

sought

treatment

for

stress

urinary

incontinence from Dr. Bechara Tabet.

Dr. Tabet implanted Lovell

with ObTape on December 27, 2004.

In May 2006, Lovell was

hospitalized with a left thigh abscess and vaginal discharge,
and her doctors suspected that the infection was related to
Lovell’s ObTape.

Dr. Tabet examined Lovell, discovered that the

ObTape had eroded, and removed the entire sling.

9

After the

excision

procedure,

Dr.

Tabet

explained

to

Lovell

that

the

ObTape “had eroded and snapped and embedded in [her] leg and
caused the abscess.”

Lovell Dep. 130:5-14, ECF No. 31-5 in

4:13-cv-377.
Lovell is an Ohio resident whose ObTape-related treatment
took place in Ohio.

On July 16, 2013, Lovell served Mentor with

a copy of her Complaint captioned in Hennepin County District
Court of the State of Minnesota.

Lovell brought claims for

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

Plaintiff Arleen Suen (ECF No. 32 in 4:13-cv-426)
Arleen Suen visited Dr. Laurence Orbuch for treatment of

incontinence.

Dr. Orbuch diagnosed Suen with stress urinary

incontinence and recommended that she undergo an ObTape implant.
Dr.

Orbuch

After

the

implanted
surgery,

Suen
Suen

with
had

ObTape

abnormal

on

December

vaginal

2,

2004.

discharge

and

several follow-up operative procedures and sought treatment from
Dr. William McCormack, who referred Suen to Dr. Victor Nitti.
Suen visited Dr. Nitti in December 2005, and he told her that
the ObTape was infected and that it would be best to remove it.
At the time, Dr. Nitti understood that it was “well-established
that ObTapes had a higher rate of infection than other tapes.”
Nitti Dep. 45:17-46:10, ECF No. 32-6 in 4:13-cv-426.

10

Dr. Nitti

removed Suen’s ObTape in December 2005.

When Dr. McCormack

followed up with Suen in May of 2006, Suen reported that her
“ongoing problems with bleeding, yeast and vaginal infections
and numbness in [her] left leg [had] all disappeared.”

Suen

Dep.

also

103:5-8,

ECF

No.

32-4

in

in

4:13-cv-426.

Suen

reported that Dr. Nitti had told her that “the mesh used to act
as a sling has had a history of creating infections therefore he
removed all traces of the mesh.”

Id. at 103:8-11.

Suen is a New York resident whose ObTape-related treatment
took place in New York.
with

a

copy

of

her

On August 8, 2013, Suen served Mentor

Complaint

captioned

District Court of the State of Minnesota.

in

Hennepin

County

Suen brought claims

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

of

implied

warranty,

common

law

fraud,

constructive

fraud, and negligent and intentional misrepresentation.
IX.

Plaintiff Sylvia Uriegas (ECF No. 29 in 4:13-cv-483)
Sylvia Uriegas visited Dr. Leopoldo Tecuanhuey complaining

of incontinence and other symptoms.
Uriegas
implant,

with

ObTape

Uriegas

on

October

experienced

25,

Dr. Tecuanhuey implanted
2004.

vaginal

After

infections,

her

ObTape

bleeding,

malodorous discharge, incontinence, painful urination, urinary
tract infections, and pain during intercourse.

In October and

November of 2006, Dr. Tecuanhuey removed portions of Uriegas’s
ObTape.

And in December of 2006, Dr. Tecuanhuey told Uriegas

11

that he had removed her ObTape and that he suspected that the
ObTape had caused her problems.

Tecuanhuey Dep. 197:4-198:12,

ECF No. 29-5 in 4:13-cv-483.
Uriegas is a Texas resident whose ObTape-related treatment
took place in Texas.

On September 27, 2013, Uriegas served

Mentor with a copy of her Complaint captioned in Hennepin County
District
claims

Court
for

warranty,

of

the

strict

of

liability,

breach

constructive

State

of

Minnesota.

negligence,

Uriegas
breach

implied

warranty,

common

and

negligent

and

fraud,

of
law

brought
express
fraud,

intentional

misrepresentation.
X.

Plaintiff Debra Degroot (ECF No. 30 in 4:13-cv-503)
Dr. David Grapey implanted Debra Degroot with ObTape on

September 29, 2004.

In November 2005, Degroot returned to Dr.

Grapey complaining of chronic malodorous vaginal discharge, and
she

reported

that

she

had

seen

protruding from her vagina.

portion

of

her

ObTape

Dr. Grapey examined Degroot and

found an erosion of the ObTape.
of ObTape.

a

He removed the eroded portion

Degroot returned to Dr. Grapey again in April 2007

complaining of chronic malodorous vaginal discharge.

Dr. Grapey

became concerned that Degroot’s ObTape was chronically infected,
and

he

referred

treatment.

her

to

Dr.

Scott

MacDiarmid

for

further

Dr. MacDiarmid told Degroot that at least some of

her remaining ObTape was infected, and he recommended surgery to

12

remove

more

performed

of

an

her

ObTape.

excision

Dr.

surgery

in

Grapey
May

and
of

Dr.
2007

MacDiarmid
to

remove

additional ObTape.
When she filed her Complaint, Degroot was a North Carolina
resident, and all of her ObTape-related treatment took place in
North Carolina.

On October 11, 2013, Degroot served Mentor with

a copy of her Complaint captioned in Hennepin County District
Court of the State of Minnesota.

Degroot brought claims for

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

Plaintiff Libby Hall (ECF No. 25 in 4:14-cv-61)
Libby

Hall

sought

Stephen Farmer.

treatment

for

incontinence

from

Dr.

Dr. Farmer diagnosed Hall with stress urinary

incontinence and recommended that Hall undergo an ObTape implant
procedure.
2005.

Dr. Farmer implanted Hall with ObTape on January 10,

Hall returned to Dr. Farmer in July 2005 with complaints

of continued incontinence and dyspareunia.

Dr. Farmer examined

Hall and told her that the ObTape, which was just under the
vaginal mucosa, was likely the source of her pain.
also

told

Hall

that

removing

the

ObTape

should

Dr. Farmer
improve

her

symptoms, and he removed Hall’s ObTape on July 11, 2005.
Hall

is

a

Mississippi

resident

treatment took place in Mississippi.

13

whose

ObTape-related

On January 23, 2014, Hall

served Mentor with a copy of her Complaint captioned in Hennepin
County District Court of the State of Minnesota.
claims

for

warranty,

strict
breach

constructive

liability,
of

negligence,

Hall brought

breach

implied

warranty,

common

and

negligent

and

fraud,

of
law

express
fraud,

intentional

misrepresentation.
XII. Plaintiff Sherry Lynn Chambers (ECF No. 26 in 4:14-cv-63)
Dr. Luis Sanz diagnosed Sherry Lynn Chambers with stress
urinary

incontinence

and

recommended

transobturator tape procedure.
ObTape on April 1, 2004.

that

she

undergo

a

Dr. Sanz implanted Chambers with

In September 2004, Chambers complained

to Dr. Sanz of some vaginal bleeding, and Dr. Sanz recommended a
revision surgery to try and stop the bleeding.
91:1-92:10, ECF No. 26-4 in 4:14-cv-63.

Chambers Dep.

After the September

2004 revision surgery, Chambers continued to experience problems
with bleeding, and she had two additional revision surgeries
during
October

June
2005

and

October

surgery,

of

the

2005.

sling

At

some

scratched

point

after

Chambers’s

the

husband

during intercourse.
In 2006, Chambers was still experiencing bleeding, so she
consulted with Dr. Briana Walton in August or September of 2006.
Dr. Walton observed an erosion of the ObTape, and she showed the
erosion to Chambers’s husband.

Dr. Walton told the Chamberses,

“This is what scratched you. This is the erosion of the sling.

14

This is what’s making you bleed.”

Id. at 138:9-15.

After that,

Chambers was referred to Dr. George Webster, who recommended a
complete removal of the ObTape.
Chambers

is

a

Maryland

resident

whose

ObTape-related

treatment took place in Washington, D.C., Virginia, and North
Carolina.
copy

of

On February 7, 2014, Chambers served Mentor with a
her

Complaint

captioned

in

Court of the State of Minnesota.

Hennepin

County

District

Chambers brought claims for

strict liability, negligence, breach of express warranty, breach
of implied warranty, common law fraud, constructive fraud, and
negligent and intentional misrepresentation.
DISCUSSION
Each Plaintiff filed her action in Minnesota state court,
and Mentor removed each Plaintiff’s action to the United States
District Court for the District of Minnesota.
later

transferred

to

this

Court

as

part

litigation proceeding regarding ObTape.
purposes

of

Plaintiffs’

summary

judgment

claims.

See

that
In

of

a

multidistrict

The parties agree for

Minnesota
re

The cases were

law

Mentor

applies

Corp.

to

ObTape

Transobturator Sling Prods. Liab. Litig., No. 4:08-md-2004, 2013
WL

286276,

claims

of

at

*7

(concluding

non-Minnesota

that

ObTape

actions in Minnesota).

15

Minnesota

plaintiffs

who

law

applied

brought

to

their

I.

Strict Liability and Negligence Claims
Mentor

contends

that

Plaintiffs’

strict

liability

negligence claims are time-barred under Minnesota law.3

and
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.
1(5)

(establishing

six-year

Minn. Stat. § 541.05 subd.

limitation

period

for

personal

injury claims not arising in contract or strict liability).
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

3

(2)

evidence

of

a

causal

Mentor also argues that Plaintiffs’ warranty claims are time-barred.
Jackson, Rupert, Klum, Leon, Urbieta, Lovell, Suen, Degroot, Hall, and
Chambers do not contest summary judgment as to their warranty claims,
so Mentor is entitled to summary judgment on those claims.
Charles
did not respond to Mentor’s summary judgment motion on this point and
does not dispute that her warranty claims accrued when she was
implanted with ObTape on February 9, 2004.
See Minn. Stat. § 336.2725(2) (“A breach of warranty occurs when tender of delivery is
made[.]”). She also does not dispute that she did not file her action
within four years after her warranty claims accrued. See Minn. Stat.
§ 336.2-725(1) (establishing four-year limitations period for warranty
claims).
Accordingly, Mentor is entitled to summary judgment on
Charles’s warranty claims.
Uriegas also did not file her complaint
within four years after her ObTape implant. Uriegas contends that the
statute of limitations for her warranty claims is tolled due to
fraudulent concealment. As discussed in more detail below, fraudulent
concealment does not apply to Uriegas’s claims, and Mentor is entitled
to summary judgment on her warranty claims.

16

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.”

Id.

plaintiff

and

suffered

injuries

For example, in Klempka, the
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 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.

Id. at 170.

Here, each Plaintiff contends that she did not learn of a
connection between ObTape and her injuries until 2011 or later –
either

based

on

a

television

commercial

regarding

complications or a consultation with a new doctor.

mesh

But each

Plaintiff knew that she suffered some injuries caused by ObTape
well before then.

17

Michele

Jackson.

In

October

2004,

Jackson

visited

her

doctor because she was experiencing pain, and her doctor found
an erosion of the ObTape.

Her doctor recommended removal of the

exposed portion of the ObTape, and he told Jackson that the
revision surgery “would most likely take away her pain.”
Dep. 16:6-13.

Barnes

Therefore, Jackson knew by October 2004 that

there was a likely connection between ObTape and some of her
injuries.

She did not file her complaint until more than eight

years later, in March 2013.
Andrea Rupert.

After Rupert reported to the emergency room

complaining of extreme pain and vaginal bleeding in June 2005,
Rupert

was

diagnosed

with

an

infection

recommended that her ObTape be removed.

and

ObTape,

Rupert

which

to

she

contact

did.

And

Mentor
in

about

August

doctor

When Rupert’s doctor

removed the ObTape, he discovered an abscess.
encouraged

her

Rupert’s doctor

her

2005,

problems
Rupert

with

visited

another doctor, who noted that Rupert was concerned that half of
her

ObTape

infected.
to ObTape.

was

still

in

her

body

and

that

it

may

become

Thus, by August 2005, Rupert connected her injuries
She did not file her complaint until nearly eight

years later, on April 1, 2013.
Wendy

Charles.

Charles

began

experiencing

pain several months after her ObTape implant.

severe

groin

Based on her

independent research, Charles became convinced by May 2005 that

18

there was a connection between her pain and the ObTape.

Charles

persuaded her doctor to remove her ObTape in March 2006; after
the ObTape removal, Charles did not experience more groin pain
symptoms.

Therefore, Charles was aware of a connection between

ObTape and her injuries by March 2006 at the latest.

She did

not file her complaint until more than seven years later, on May
7, 2013.
Carrie

Klum.

Klum

visited

her

doctor

pressure in the lower abdomen and bleeding.

complaining

of

She was diagnosed

with an infection and erosion of her ObTape in 2005.

At the

time, Klum’s doctor told her that her pain and bleeding were
caused

by

the

experienced

ObTape.

similar

And

symptoms,

in

February

her

doctor

entire ObTape needed to be removed.
the

latest,

ObTape.

Klum

knew

that

her

2006,

told

her

when

Klum

that

the

Thus, by February 2006 at

injuries

were

connected

to

She did not file her complaint until more than seven

years later, on April 29, 2013.
Olga

Leon.

Leon

was

diagnosed

with

an

erosion

of

her

ObTape in January 2005 after she complained to her doctor of
pain and irritation.

The doctor told Leon that there was a

problem with her ObTape and he would have to perform a revision
surgery.

Therefore, Leon knew by January 2005 that some of her

injuries were connected to ObTape.

19

Furthermore, in 2005 or

2006, Leon started thinking about bringing a lawsuit regarding
ObTape.

But Leon did not bring her lawsuit until June 10, 2013.

Graciela

Urbieta.

After

her

ObTape

implant,

Urbieta

experienced a variety of problems; her doctor became concerned
that Urbieta’s ObTape was chronically infected, and she referred
Urbieta to a specialist.

The specialist diagnosed Urbieta with

an erosion of ObTape in late 2006 and told Urbieta that the
ObTape would have to be removed because it was causing discharge
and

other

problems.

After

Urbieta’s

excision

December 2006, Urbieta’s symptoms improved.

surgery

in

Therefore, Urbieta

knew by December 2006 that there was likely a connection between
ObTape and at least some of her injuries.

She did not file her

complaint until more than six years later, on July 11, 2013.
Sharon Lovell.
left

thigh

abscess

In May 2006, Lovell was hospitalized with a
and

vaginal

discharge,

and

her

doctors

suspected that the infection was related to Lovell’s ObTape.
After an examination, Lovell’s doctor confirmed that the ObTape
had eroded, and he removed the entire sling.

At the time,

Lovell’s doctor explained to her that the ObTape had eroded and
caused the abscess.

Therefore, Lovell knew by May 2006 that

there was a connection between her ObTape and her injuries.

She

did not file her complaint until more than seven years later, on
July 16, 2013.

20

Arleen Suen.

Suen experienced abnormal vaginal discharge

and had to have several follow-up operative procedures after her
ObTape implant.

When she was referred to another doctor for

treatment, that doctor told Suen that the ObTape was infected
and that it would be best to remove it.

Suen’s doctor told her

that ObTape had a history of creating infections.

After her

ObTape was explanted in December 2005, Suen’s adverse symptoms
disappeared.

Thus, Suen knew by December 2005 that there was a

connection between ObTape and her injuries.

She did not file

her complaint until more than seven years later, on August 8,
2013.
Sylvia

Uriegas.

Uriegas

had

multiple

adverse

symptoms

after her ObTape implant and sought additional treatment from
her doctor.

The doctor removed portions of Uriegas’s ObTape and

told her in December of 2006 that he suspected that the ObTape
had caused her problems.

Therefore, Uriegas knew by December

2006 that there was a possible connection between ObTape and her
adverse symptoms.

She did not file her complaint until nearly

seven years later, on September 27, 2013.
Debra
experienced

Degroot.
chronic

After

her

malodorous

ObTape

vaginal

implant,

discharge

portion of her ObTape protruding from her vagina.

and

Degroot
saw

a

In November

2005, Degroot’s doctor diagnosed Degroot with an erosion of the
ObTape and removed the eroded portion.

21

Degroot continued to

experience
doctor

malodorous

told

her

that

discharge.
her

In

remaining

April

ObTape

2007,
was

Degroot’s

infected

and

needed to be removed, so Degroot had another excision procedure
in May 2007.

Therefore, Degroot knew by April 2007 at the

latest that there was a connection between ObTape and at least
some of her injuries.

She did not file her complaint until more

than six years later, on October 11, 2013.
Libby Hall.
ObTape implant.

Hall had problems with dyspareunia after her
In July 2005, Hall’s doctor told her that the

ObTape was likely the source of her pain.

The doctor also told

Hall that her symptoms should improve if the ObTape was removed.
Therefore,

Hall

knew

in

July

2005

that

there

was

connection between ObTape and some of her injuries.

a

likely

She did not

file her complaint until more than eight years later, on January
23, 2014.
Sherry Lynn Chambers.

After her ObTape implant, Chambers

experienced vaginal bleeding and had at least three revision
surgeries

by

experiencing

October
vaginal

2005.

In

bleeding,

2006,

so

she

Chambers
visited

was
a

still

different

doctor, who found an erosion of the ObTape and told Chambers
that the erosion was causing her bleeding and had scratched
Chambers’s husband during intercourse.
by

2006

at

the

latest

that

her

22

Therefore, Chambers knew

symptoms

were

connected

to

ObTape.

She did not file her complaint until more than seven

years later, on February 7, 2014.
In summary, each Plaintiff connected at least some of her
injuries to ObTape more than six years before she filed suit.
Accordingly, their strict liability and negligence claims are
time-barred under Minnesota law.

Plaintiffs contend that it is

not enough that they made a connection between ObTape and some
of their injuries.
have

been

injuries.
holding

on

Rather, they appear to argue that they must

notice

that

a

defect

in

ObTape

caused

their

Plaintiffs did not point to any Minnesota authority

that

a

plaintiff

must

be

on

actual

notice

specific injuries were caused by a product defect.

that

her

Rather, the

precedent establishes that a claim accrues when the plaintiff
becomes aware of an injury and a causal connection between the
injury and the defendant’s product.
Plaintiffs

nonetheless

Klempka, 963 F.2d at 170.

contend

that

two

Eighth

Circuit

cases and one Minnesota District Court case support denial of
summary

judgment

claims.

The Court disagrees.

v.

Allied

Corp.,

on

their

839

F.2d

negligence

and

strict

liability

First, they point to Hildebrandt
396

(8th

Cir.

1987),

where

the

plaintiffs alleged that they suffered lung damage due to their
exposure to a toxic chemical at their workplace.
unlike

here,

the

plaintiffs’

doctors

initially

But there,
told

the

plaintiffs that there was no correlation between their symptoms

23

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, Plaintiffs 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 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, Plaintiffs 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

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 Plaintiffs’ cases.

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

24

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.
contrast,

here,

each

Plaintiff

suffered

injuries

that

In
were

connected to an erosion or infection of the ObTape, and each
Plaintiff 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, if not before.
Plaintiffs argue that even if Minnesota’s discovery rule
does not save their strict liability and negligence 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 his part and was not the result of his
own negligence.”

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

1975).
As

discussed

above,

each

Plaintiff

knew

of,

strongly

suspected, or had enough information to know of a connection

25

between ObTape and at least some of her injuries by the time of
her excision procedure, if not before.

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 Plaintiffs pointed to no
evidence

that

potential

they

claims

information

to

took

even

know)

any

action

to

they

knew

though

there

injuries and the ObTape.4

was

a

investigate
(or

connection

had

between

their
enough
their

Under these circumstances, the Court

concludes that fraudulent concealment does not toll the statute
of limitations.
None of the Plaintiffs filed their complaints within six
years after their claims accrued.

Their strict liability and

negligence claims (including their negligent misrepresentation
claims)

are

therefore

time-barred.

The

loss

of

consortium

claims of Anthony Klum and Mateo Urbieta fail because their

4

There is evidence that two plaintiffs attempted an investigation
regarding their problems with ObTape.
First, Charles researched the
issue and even had her doctor remove the ObTape because she was
convinced it was causing her pain, but she did nothing to pursue her
claims until years later.
Second, Urbieta suspected that her
implanting doctor had placed the sling incorrectly.
About a year
after her excision procedure, Urbieta asked the physician who excised
her ObTape to make a statement to that effect.
Urbieta Dep. 65:2066:1. The physician refused and also told Urbieta that leg infections
had been reported with mesh slings.
Kielb Dep. 31:23-32:1.
Urbieta
offered no explanation for why she waited a year before asking
questions of her physicians; such a delay does not demonstrate
reasonable diligence.

26

wives’ claims fail.

Kohler v. Fletcher, 442 N.W.2d 169, 173

(Minn. Ct. App. 1989).

(“As a husband’s claim for loss of

consortium is derivative only, if his wife’s underlying tort
claim fails, his claim for loss of consortium also fails.”).
II.

Fraud and Intentional Misrepresentation Claims
Mentor also seeks summary judgment on Plaintiffs’ fraud and

intentional

claims.5

misrepresentation

limitations for fraud claims is six years.
subd. 1(6).

The

statute

of

Minn. Stat. § 541.05

A fraud cause of action “shall not be deemed to

have accrued until the discovery by the aggrieved party of the
facts constituting the fraud.”

Id.

But “the facts constituting

fraud are deemed to have been discovered when, with reasonable
diligence,

they

could

and

ought

to

have

been

discovered.”

Veldhuizen v. A.O. Smith Corp., 839 F. Supp. 669, 674 (D. Minn.
1993) (quoting
1962)).
toll

the

Bustad v. Bustad, 116 N.W.2d 552, 555 (Minn.

“The failure to actually discover the fraud does not
statute

of

reasonable diligence.”

limitations

if

it

is

inconsistent

with

Id.; accord Blegen v. Monarch Life Ins.

5

In
addition
to
their
common
law
fraud
and
intentional
misrepresentation claims, Plaintiffs assert “constructive fraud”
claims.
The Court construes those claims as claims for fraudulent
misrepresentation based on the concealment of a material fact.
See
Flynn v. Am. Home Prods. Corp., 627 N.W.2d 342, 350 (Minn. Ct. App.
2001) (“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)).

27

Co., 365 N.W.2d 356, 357-58 (Minn. Ct. App. 1985).

Plaintiffs

“carry the burden of proving that they did not discover the
facts constituting fraud within six years before commencement of
the action.”

Veldhuizen, 839 F. Supp. 674.

“They must also

show that they could not have discovered the fraud through the
exercise of reasonable diligence.”

Id.

Again, each Plaintiff knew of, strongly suspected, or had
enough information to know of a connection between ObTape and at
least

some

of

her

injuries

procedure, if not before.

by

the

time

of

her

excision

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 Plaintiffs pointed to no evidence that they

exercised reasonable diligence to investigate their potential
claims even though they knew (or had enough information to know)
there was a connection between their injuries and the ObTape.
They also did not point to evidence that they could not have
discovered enough facts to support their fraud and intentional
misrepresentation

claims

had

they

started

investigating

the

connection they made (or had enough information to make) between
ObTape and their injuries within a reasonable time after they
discovered the connection.

For these reasons, the Court finds

28

that Plaintiffs’ fraud and intentional misrepresentation claims
are time-barred.
CONCLUSION
For the reasons set forth above, Mentor’s summary judgment
motions are granted as to Jackson (ECF No. 37 in 4:13-cv-93),
Rupert (ECF No. 41 in 4:13-cv-101), Charles (ECF No. 34 in 4:13cv-151), Klum (ECF No. 34 in 4:13-cv-153), Leon (ECF No. 40 in
4:13-cv-241), Urbieta (ECF No. 31 in 4:13-cv-346), Lovell (ECF
No.

31

in

4:13-cv-377),

Suen

(ECF

No.

32

in

4:13-cv-426),

Uriegas (ECF No. 29 in 4:13-cv-483), Degroot (ECF No. 30 in
4:13-cv-503), Hall (ECF No. 25 in 4:14-cv-61), and Chambers (ECF
No. 26 in 4:14-cv-63).

IT IS SO ORDERED, this 21st day of December, 2015.
s/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

29