Roy et al v. Mentor Worldwide LLC et al
Filing
51
ORDER granting 44 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE CLAY D LAND on 04/13/2016. (CCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
* MDL Docket No. 2004
4:08-MD-2004 (CDL)
*
Case Nos.
* 4:13-cv-125 (Roy)
IN RE MENTOR CORP. OBTAPE
TRANSOBTURATOR SLING PRODUCTS
LIABILITY LITIGATION
O R D E R
Defendant
Mentor
Worldwide
LLC
developed
a
suburethral
sling product called ObTape Transobturator Tape, which was used
to
treat
Lynne
women
Roy
was
with
stress
implanted
urinary
with
ObTape
suffered injuries caused by ObTape.
liability
action
against
incontinence.
Mentor,
and
Plaintiff
asserts
that
she
Mrs. Roy brought a product
contending
that
ObTape
had
design and/or manufacturing defects that proximately caused her
injuries.
Mrs. Roy also asserts that Mentor did not adequately
warn her physicians about the risks associated with ObTape.
husband Eugene brought a loss of consortium claim.
Her
Mentor seeks
summary judgment on the Roys’ claims, contending that they are
time-barred.
For the reasons set forth below, Mentor’s summary
judgment motion (ECF No. 44 in 4:13-cv-125) is granted.
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed. R.
Civ. P. 56(a).
In determining whether a
genuine
dispute of
material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party’s favor.
477 U.S. 242, 255 (1986).
Anderson v. Liberty Lobby, Inc.,
A fact is material if it is relevant
or necessary to the outcome of the suit.
Id. at 248.
A factual
dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.
Id.
FACTUAL BACKGROUND
Lynne Roy suffered from stress urinary incontinence, and
she sought treatment from Dr. Ramesh Unni.
Mrs. Roy with ObTape on November 22, 2004.
Dr. Unni implanted
Less than a year
later, Mrs. Roy developed malodorous vaginal discharge.
After
seeing at least two doctors about her symptoms, Mrs. Roy visited
Dr. Sandra Culbertson in July 2007.
Dr. Culbertson examined
Mrs. Roy and told Mrs. Roy that her ObTape had rubbed a hole in
her vaginal wall, was causing the discharge, and needed to be
removed.
Dr. Culbertson removed Mrs. Roy’s ObTape on September
10, 2007 and told Mrs. Roy that she had removed infected mesh.
Mrs.
Roy’s
vaginal
discharge
symptoms
cleared
up
after
the
excision surgery.
The
related
Roys
are
treatment
Indiana
took
residents,
place
in
2
and
Indiana.
Mrs.
Roy’s
Mrs.
Roy
ObTapeasserts
claims for negligence, strict liability – manufacturing defect;
strict liability – failure to warn; strict liability – defective
product; breach of implied warranty; breach of express warranty;
fraudulent
concealment;
tolling,
and
constructive
fraudulent
fraud;
discovery
concealment;
rule,
negligent
misrepresentation; negligent infliction of emotional distress;
violation of consumer protection laws; gross negligence; unjust
enrichment; and punitive damages.
consortium claim.
Mr. Roy asserts a loss of
Mrs. Roy does not dispute that Mentor is
entitled to summary judgment on her unjust enrichment claim, so
summary judgment is granted as to that claim.
DISCUSSION
The Roys filed their action on April 4, 2013 by filing a
short form complaint in In Re: Coloplast Corp. Pelvic Support
System Products Liability Litigation, MDL No.2387.
The Roys
stated
the
that
the
proper
venue
for
their
action
is
District Court for the Northern District of Indiana.
¶ 5,
ECF
No.
1
in
4:13-cv-125.
The
Judicial
U.S.
Compl.
Panel
on
Multidistrict Litigation transferred the action to this Court
for pretrial proceedings.
The parties agree that Indiana law
applies because it is the law of the state where venue would be
proper
had
the
action
not
been
litigation proceeding.
3
filed
in
a
multidistrict
Indiana has a two-year statute of limitations for product
liability claims.
Ind. Code § 34-20-3-1(b)(1).
This statute of
limitations applies to all of the Roys’ claims except Mrs. Roy’s
warranty claims because Indiana’s Product Liability Act governs
all actions brought by a consumer against a manufacturer “for
physical
harm
caused
by
a
product[,]
regardless
of
the
substantive legal theory or theories upon which the action is
brought.”
statute
Ind.
of
§
limitations
negligence,
liability
Code
strict
–
34–20–1–1.
Therefore,
applies
the
liability
failure
to
–
to
Roys’
manufacturing
warn;
strict
the
two-year
claims
defect;
liability
–
for
strict
defective
product; fraudulent concealment; constructive fraud; negligent
misrepresentation; negligent infliction of emotional distress;
violation
of
consumer
protection
laws;
gross
negligence;
and
loss of consortium.
Under
Indiana’s
discovery
rule,
the
Indiana
statute
of
limitations “begins to run from the date that the plaintiff knew
or
should
have
discovered
that
she
suffered
an
injury
or
impingement, and that it was caused by the product or act of
another.”
Cir.
2002)
Nelson v. Sandoz Pharm. Corp., 288 F.3d 954, 966 (7th
(applying
Indiana
law)
(quoting
Degussa
Corp.
v.
Mullens, 744 N.E.2d 407, 410 (Ind. 2001)); accord Evenson v.
Osmose Wood Preserving Co. of Am., 899 F.2d 701, 703 (7th Cir.
1990) (applying Indiana law).
In
4
Mullens, for example, the
Indiana Supreme Court concluded that the statute of limitations
did not begin to run until the plaintiff knew there was “a
‘reasonable possibility, if not a probability’ that an injury
was caused by an act or product.”
Mullens, 744 N.E.2d at 411
(quoting Van Dusen v. Stotts, 712 N.E.2d 491, 499 (Ind. 1999)).
The Mullens Court noted that once the plaintiff suspected that
her symptoms were connected to the defendant’s chemicals that
she
was
exposed
to
at
work,
she
undertook
a
investigation to determine the cause of her symptoms.
diligent
Id.
That
diligent investigation led the plaintiff to a doctor who found
that the plaintiff’s symptoms were caused by the defendant’s
chemicals, and the statute of limitations began running when the
doctor connected the symptoms to the chemicals.
Here,
Mrs.
Roy
contends
that
she
did
Id.
not
learn
of
a
connection between ObTape and her injuries until 2011 when she
saw a television commercial regarding mesh complications.
Mrs.
Roy
knew
or
should
have
known
that
injuries caused by ObTape well before then.
she
suffered
But
some
In July 2007, Mrs.
Roy’s doctor told Mrs. Roy that the ObTape had rubbed a hole in
her vaginal wall, was causing the discharge, and needed to be
removed.
And in September 2007, Mrs. Roy’s doctor removed the
ObTape and told Mrs. Roy that she had removed infected mesh from
Mrs.
Roy’s
body.
Therefore,
Mrs.
Roy
knew
of,
strongly
suspected, or had enough information to know of a connection
5
between ObTape and at least some of her injuries by September
2007.
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.
The
statute of limitations for the Roys’ product liability claims
therefore accrued in September 2007.
action
until
more
than
five
years
They did not file their
later,
so
their
product
liability claims, including Mr. Roy’s loss of consortium claim,
are barred.
The Roys contend that it is not enough that they made a
connection
between
ObTape
and
some
of
Mrs.
Roy’s
injuries.
Rather, they appear to argue that they must have been on notice
that a defect in ObTape caused Mrs. Roy’s injuries.
The Roys
did not point to any Indiana authority holding that a plaintiff
must be on notice that her injuries were caused by a product
defect.
when
Rather, the precedent establishes that a claim accrues
the
plaintiff
becomes
aware
of
an
injury
and
a
causal
connection between the injury and the defendant’s product.
See
Mullens, 744 N.E.2d at 411 (finding that statute of limitations
did not begin to run until the plaintiff knew that there was a
reasonable
probability
that
her
defendant’s product).
6
injuries
were
caused
by
the
The
Roys
nonetheless
contend
that
Evenson,
a
Seventh
Circuit case applying Indiana law, supports denial of summary
judgment on their negligence and strict liability claims.
The
Court
was
disagrees.
exposed
to
a
In
chemical
Evenson,
at
his
a
wood
job,
treatment
and
he
conditions that required medical treatment.
worker
developed
several
In 1985, the worker
became concerned that the chemical caused his symptoms, but at
the time, his doctors were unable to identify the cause of the
worker’s
problems.
Therefore,
the
Seventh
Circuit
concluded
that there was not sufficient evidence that the worker “had or
should have discovered some evidence” by 1985 “that there was a
reasonable
possibility
that
cause of his injuries.”
his
[chemical]
exposure
Evenson, 899 F.2d 701 at 705.
was
the
Rather,
the statute of limitations did not begin to run until 1987, when
a
doctor
connected
the
worker’s
symptoms
to
the
chemical.
Nothing in Evenson required the worker to be on notice of a
defect in the chemical.
Rather, the worker’s cause of action
accrued when his doctor told him that there was a connection
between the chemical and his injuries.
Id.
Here, the Roys knew or should have known of a connection
between ObTape and Mrs. Roy’s symptoms by September 2007, when
Mrs. Roy’s doctor removed the ObTape after discovering that the
ObTape had rubbed a hole in Mrs. Roy’s vaginal wall.
The Roys’
product liability claims accrued in 2007, and they did not file
7
their action within two years.
are
therefore
time-barred.
Their product liability claims
Mrs.
Roy’s
warranty
claims
are
likewise time-barred.1
The Roys contend that even if the discovery rule does not
save their claims, the statute of limitations should be tolled
due to fraudulent concealment.
“If a person liable to an action
conceals the fact from the knowledge of the person entitled to
bring the action, the action may be brought at any time within
the period of limitation after the discovery of the cause of
action.”
Ind.
Code
§
34–11–5–1.
“The
law
narrowly
defines
concealment, and generally the concealment must be active and
intentional.” Olcott Int’l & Co. v. Micro Data Base Sys., Inc.,
793 N.E.2d 1063, 1072 (Ind. Ct. App. 2003).
“[A] plaintiff must
show that the wrongdoer was not simply silent but committed
affirmative acts designed to conceal the cause of action.”
Horn
v. A.O. Smith Corp., 50 F.3d 1365, 1372 (7th Cir.1995) (applying
1
Indiana has a four-year statute of limitations for breach of contract
claims.
Ind. Code § 26–1–2–725(1).
A breach of warranty claim
“accrues when the breach occurs, regardless of the aggrieved party’s
lack of knowledge of the breach.” Ind. Code § 26–1–2–725(2).
“A
breach of warranty occurs when tender of delivery is made.”
Id.
Therefore, Mrs. Roy’s warranty claims accrued when her ObTape was
implanted in November 2004, and she did not bring her warranty claims
within four years of that date.
As the Court previously explained, the discovery rule does not apply
to contract-based claims under Indiana’s Uniform Commercial Code.
Riley v. Mentor Corp., No. 4:11-CV-5075, 2013 WL 592409, at *3 (M.D.
Ga. Feb. 14, 2013). Moreover, even if the product liability discovery
rule did apply, Mrs. Roy’s warranty claims would still be time-barred
because she did not bring them within four years after learning of a
connection between ObTape and her injuries.
8
Indiana law).
calculated
“The affirmative acts of concealment must be
to
mislead
and
hinder
a
plaintiff
from
obtaining
information by the use of ordinary diligence, or to prevent
inquiry or elude investigation.”
Olcott Int’l, 793 N.E .2d at
1072 (quoting Ludwig v. Ford Motor Co., 510 N.E.2d 691, 697
(Ind. Ct. App. 1987)).
intended
by
inquiry.”
knowledge
the
“There must be some trick or contrivance
defrauder
to
exclude
suspicion
prevent
Id. (quoting Ludwig, 510 N.E. at 697). “Mere lack of
of
a
cause
of
action
is
not
enough
to
concealment and toll the running of the statute.”
Ludwig,
and
510
N.E.
at
697).
“A
plaintiff
bears
constitute
Id. (quoting
the
burden
of
proving that a statute of limitations should be tolled, which
includes demonstrating the use of reasonable care and diligence
to detect the alleged cause of action.”
Id.; accord Horn, 50
F.3d at 1372 (noting that a plaintiff “must demonstrate that he
exercised
reasonable
care
and
due
diligence
to
discover
the
fraud”).
Here, the Roys essentially argue that because Mentor sold
ObTape to Mrs. Roy’s doctor and continued selling it until 2006
without disclosing certain complication rates that Mentor had
allegedly
tolled
discovered,
due
to
the
fraudulent
statute
of
limitations
concealment.
The
Roys
should
did
be
not,
however, point to any evidence that Mentor took affirmative acts
to
prevent
the
Roys
from
knowing
9
of
a
potential
connection
between
ObTape
and
evidence
that
the
Mrs.
Roys
Roy’s
injuries.
exercised
And,
reasonable
there
is
no
diligence
to
investigate their potential claims even though they knew (or had
enough information to know) there was a connection between Mrs.
Roy’s injuries and the ObTape.
Under these circumstances, the
Court concludes that fraudulent concealment does not toll the
statute of limitations.
CONCLUSION
As discussed above, Mentor’s summary judgment motion (ECF
No. 44 in 4:13-cv-125) is granted.
IT IS SO ORDERED, this 13th day of April, 2016.
s/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?