Rector v. Mentor Corporation et al

Filing 45

ORDER granting 42 Motion for Partial Summary Judgment. Ordered by US DISTRICT JUDGE CLAY D LAND on 02/26/2016. (CCL)

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-100 (Rector)

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

Beverly Ann Rector was implanted with ObTape and asserts that
she

suffered

injuries

caused

by

ObTape.

Rector

brought

a

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

injuries.

Rector

also

asserts

that

Mentor

did

not

adequately warn her physicians about the risks associated with
ObTape.

Mentor seeks summary judgment as to Rector’s breach of

warranty and strict liability claims because they are barred by
the statute of limitations.

For the reasons set forth below,

Mentor’s partial summary judgment motion (ECF No. 42 in 4:13-cv100) 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.”
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
On

July

19,

2005,

Dr.

John

Saba

implanted

Beverly

Rector with ObTape to treat her stress urinary incontinence.

Ann
On

July 28, 2008, Rector visited Dr. Kevin Enger with complaints of
abnormal vaginal discharge.

Dr. Enger discovered an erosion of

the sling and told Rector that it would have to be surgically
removed.

During the exam, Dr. Enger held up a mirror so that

Rector could see the extruded portion of the sling.

Dr. Enger

removed Rector’s ObTape on September 11, 2008.
Rector
treatment

is

took

negligence,

an

Missouri

place

strict

in

resident

Missouri.

liability,

breach

She
of

whose

ObTape-related

asserts
express

claims
and

for

implied

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

2

DISCUSSION
Rector filed her action in Minnesota state court on April
1, 2013, and Mentor removed it 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 Rector’s claims.
See In re Mentor Corp. ObTape Transobturator Sling Prods. Liab.
Litig., No. 4:08-md-2004, 2013 WL 286276, at *7 (concluding that
Minnesota

law

applied

to

claims

of

non-Minnesota

ObTape

plaintiffs who brought their actions in Minnesota).
Mentor seeks summary judgment on Rector’s strict liability
claim and her breach of warranty claims, contending that these
claims are all time-barred.

Rector does not contest Mentor’s

summary judgment motion as to her warranty claims.

Summary

judgment is therefore granted as to those claims.
The

next

question

claim is time-barred.

is

whether

Rector’s

strict

liability

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.”).

Under

Minnesota law, “a claim involving personal injuries allegedly
caused by a defective product accrues when two elements are

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present: ‘(1) a cognizable physical manifestation of the disease
or injury, and (2) evidence of a causal connection between the
injury

or

disease

omission.’”

and

the

defendant’s

product,

act,

or

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

(8th Cir. 1992) (quoting Hildebrandt v. Allied Corp., 839 F.2d
396,

398

(8th

Cir.

1987))

(applying

Minnesota

law).

“A

plaintiff who is aware of both her injury and the likely cause
of her injury is not permitted to circumvent the statute of
limitations by waiting for a more serious injury to develop from
the same cause.”
suffered

injuries

Id.
and

For example, in Klempka, the plaintiff
was

diagnosed

with

chronic

pelvic

inflammatory disease, which her doctor said was caused by the
plaintiff’s

intrauterine

device.

Id.

at

169.

Several

years

later, the plaintiff 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,

Rector

Id. at 170.

contends

that

she

did

not

learn

of

a

connection between ObTape and her injuries until 2012, when she
saw a television commercial regarding mesh complications.

But

Rector knew that she suffered some injuries caused by ObTape
well

before

then.

In

2008,

Rector

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visited

her

doctor

with

symptoms of abnormal vaginal discharge.

The doctor discovered

an erosion of the sling, showed it to Rector, and told Rector
that the sling would have to be surgically removed.

Therefore,

Rector knew by September 2008 that there was a likely connection
between ObTape and some of her injuries.

She did not file her

complaint until more than four years later, in April 2013.
Rector

argues

that

it

is

not

enough

that

she

connection between ObTape and some of her injuries.

made

a

Rather, she

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

Rector did not point to any

Minnesota authority holding that a plaintiff must be on actual
notice

that

defect.
when

her

specific

injuries

were

caused

by

a

product

Rather, the precedent establishes that a claim accrues

the

connection

plaintiff
between

becomes
the

aware

injury

of

and

an
the

injury

and

defendant’s

a

causal

product.

Klempka, 963 F.2d at 170.
Rector nonetheless contends that one Eighth Circuit case
and one Minnesota District Court case support denial of summary
judgment on her strict liability claim.

The Court disagrees.

First, Rector points 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

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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.

Second, Rector 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

or

connection.

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.

Id.

Tuttle and Huggins are distinguishable from Rector’s case.
In 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

product and the injury.

a

causal

link

between

the

In contrast, here, Rector suffered

injuries that were connected to an erosion of the ObTape, and
she

had

enough

information

to

know

of

a

connection

between

ObTape and at least some of her injuries by the time of her
excision procedure in September 2008.

A reasonable person in

that situation would take some action to follow up on the cause

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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

Rector

pointed

to

no

evidence that she took any action to investigate her potential
claims even though she knew (or had enough information to know)
there was a connection between her injuries and the ObTape.
Rector did not file her complaint within four years after
her strict liability claim accrued.

That claim is therefore

time-barred, and Mentor is entitled to summary judgment on that
claim.
CONCLUSION
Mentor’s motion for partial summary judgment (ECF No. 42 in
4:13-cv-100)

is

granted,

and

Rector’s

liability claims are dismissed.
common

law

fraud,

warranty

and

strict

Rector’s claims for negligence,

constructive

fraud,

and

negligent

and

intentional misrepresentation remain pending for trial.
Within seven days of the date of this Order, the parties
shall notify the Court whether the parties agree to a Lexecon
waiver.

IT IS SO ORDERED, this 26th day of February, 2016.
s/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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