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
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