Rector v. Mentor Corporation et al
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
IN RE MENTOR CORP. OBTAPE
TRANSOBTURATOR SLING PRODUCTS
MDL Docket No. 2004
O R D E R
sling product called ObTape Transobturator Tape, which was used
Beverly Ann Rector was implanted with ObTape and asserts that
product liability action against Mentor, contending that ObTape
had design and/or manufacturing defects that proximately caused
adequately warn her physicians about the risks associated with
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
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.
dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.
Rector with ObTape to treat her stress urinary incontinence.
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
During the exam, Dr. Enger held up a mirror so that
Rector could see the extruded portion of the sling.
removed Rector’s ObTape on September 11, 2008.
warranties, common law fraud, constructive fraud, and negligent
and intentional misrepresentation.
Rector filed her action in Minnesota state court on April
1, 2013, and Mentor removed it to the United States District
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
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.
judgment is therefore granted as to those claims.
claim is time-barred.
The statute of limitations for a strict
liability claim is four years.
Minn. Stat. § 541.05 subd. 2
(“[A]ny action based on the strict liability of the defendant
and arising from the manufacture, sale, use or consumption of a
Minnesota law, “a claim involving personal injuries allegedly
caused by a defective product accrues when two elements are
present: ‘(1) a cognizable physical manifestation of the disease
or injury, and (2) evidence of a causal connection between the
Klempka v. G.D. Searle & Co., 963 F.2d 168, 170
(8th Cir. 1992) (quoting Hildebrandt v. Allied Corp., 839 F.2d
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.”
For example, in Klempka, the plaintiff
inflammatory disease, which her doctor said was caused by the
later, the plaintiff was told that she was infertile and that
the intrauterine device caused her infertility.
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.
connection between ObTape and her injuries until 2012, when she
saw a television commercial regarding mesh complications.
Rector knew that she suffered some injuries caused by ObTape
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.
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.
connection between ObTape and some of her injuries.
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
Rather, the precedent establishes that a claim accrues
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.
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.
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 in 2002, but he did not connect the condition to the
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.
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
product and the injury.
In contrast, here, Rector suffered
injuries that were connected to an erosion of the ObTape, and
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
of her injuries and try to find out whether the injuries were
caused by a problem with ObTape, a problem with the implant
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
Mentor’s motion for partial summary judgment (ECF No. 42 in
liability claims are dismissed.
Rector’s claims for negligence,
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
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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