BERGIN et al v. MENTOR WORLDWIDE LLC et al
ORDER granting (40) Motion for Summary Judgment in case 4:13-cv-00135-CDL; granting (45) Motion for Summary Judgment in case 4:13-cv-00144-CDL. Ordered by US DISTRICT JUDGE CLAY D LAND on 04/14/2016. (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
* 4:13-cv-135 (Bergin)
O R D E R
sling product called ObTape Transobturator Tape, which was used
to treat women with stress urinary incontinence.
Marie Bergin and Wendy Fudge were implanted with ObTape and
assert that they suffered injuries caused by ObTape.
proximately caused their injuries.
Plaintiffs also assert that
Mentor did not adequately warn their physicians about the risks
Plaintiffs’ claims, contending that they are time-barred under
For the reasons set forth below, Mentor’s summary
judgment motions (ECF No. 40 in 4:13-cv-135 and ECF No. 45 in
4:13-cv-144) 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
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.
Ann Marie Bergin
Dr. Keith Grisham diagnosed Ann Marie Bergin with stress
urinary incontinence and other medical issues.
On September 7,
December, Bergin noticed a vaginal opening with bleeding, and in
March 2006 Dr. Grisham found that Bergin’s sling was exposed.
Dr. Grisham told Bergin that her sling was exposed and that one
of her treatment options was to undergo a surgical excision
Dr. Grisham surgically removed a piece of Bergin’s
experience bloody discharge, as well as granulated tissue.
Grisham surgically excised Bergin’s granulated tissue, as well
as some infected mesh, on September 13, 2006.
Dr. Grisham told
Bergin that he found and removed infected mesh material during
the procedure and that he expected her symptoms to improve.
Bergin’s bleeding and discharge symptoms did improve, although
she continued to suffer other symptoms that she now attributes
At the time of her excision procedures, Bergin knew
that she had portions of her sling removed to treat her bleeding
and discharge symptoms.
Bergin Dep. 57:13-22, 58:14-18, ECF No.
She believed that her body was rejecting the sling.
defect, failure to warn); breach of express warranty; breach of
Mentor’s summary judgment motion should be denied as to her
negligence, strict liability, and punitive damages claims.
Mentor is entitled to summary judgment on her warranty claims,
and the Court grants Mentor’s summary judgment motion as to
On October 30, 2003, Dr. Brian Feagins implanted Fudge with
ObTape to treat her stress urinary incontinence.
Even if Bergin had not conceded these claims, Mentor would be
entitled to summary judgment for the same reasons it is entitled to
summary judgment on her other claims.
months, Fudge began to experience vaginal discharge and odor.
Fudge visited Dr. Feagins in February 2005 with
symptoms of vaginal bleeding and odor.
Dr. Feagins examined
Fudge and told her that her sling was causing her symptoms and
that all or part of the sling needed to be removed.
month, Dr. Feagins removed part of Fudge’s ObTape.
continued, and Dr. Feagins performed three additional revision
Fudge understood that the revision surgeries were
performed to remove portions of her mesh and treat her symptoms.
During the last revision surgery, in September 2005, Dr. Feagins
removed the remainder of Fudge’s ObTape.
After that, Fudge
reported to Dr. Feagins that her bleeding and discharge symptoms
Dr. Feagins later recommended a pubovaginal sling
for Fudge; he did not recommend another mesh product for Fudge
because of the problems she experienced with ObTape.
Fudge is a Texas resident, and her ObTape-related treatment
strict liability (design defect, manufacturing defect, failure
warranty; fraudulent concealment; constructive fraud; negligent
misrepresentation; negligent infliction of emotional distress;
Fudge argues that Mentor’s summary judgment motion should be
therefore finds that Fudge implicitly conceded that Mentor is
entitled to summary judgment on her remaining claims, including
Mentor’s summary judgment motion as to those claims.2
Bergin filed her action in this Court on May 14, 2013 under
the Court’s direct filing order.
The parties agreed that for
direct-filed cases, the “Court will apply the choice of law
rules of the state where the plaintiff resides at the time of
the filing of the complaint.”
Order Regarding Direct Filing
resident whose ObTape-related treatment took place in Texas, and
the parties agree that Texas law applies to her claims.
Fudge filed her action on April 29, 2013 by filing a short
form complaint in In Re: Coloplast Corp. Pelvic Support System
Products Liability Litigation, MDL No.2387.
The Judicial Panel
on Multidistrict Litigation transferred the action to this Court
Even if Fudge had not conceded these claims, Mentor would be entitled
to summary judgment for the same reasons it is entitled to summary
judgment on her other claims.
for pretrial proceedings.
Fudge did not state in her Complaint
which U.S. District Court is the proper venue for her action,
but she did state that she lives in Texas, and she does not
dispute that all of her ObTape-related treatment took place in
The parties agree that Texas law applies because it is
the law of the state where venue would be proper had the action
not been filed in a multidistrict litigation proceeding.
Mentor under a variety of theories.
Mentor contends that all of
Tex. Civ. Prac. & Rem. Code § 16.003(a) (requiring
that actions for personal injury be brought within two years
after the claim accrues).
Texas’s discovery rule applies if
“the nature of the injury incurred is inherently undiscoverable
and the evidence of injury is objectively verifiable.”
v. Haussecker, 974 S.W.2d 31, 36 (Tex. 1998) (quoting Computer
Assocs. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex.
Under the discovery rule, “a cause of action does not
wrongful act and resulting injury.’”
R.V., 933 S.W.2d 1, 4 (Tex. 1996)).
Id. at 37 (quoting S.V. v.
symptoms to ObTape—2006 for Bergin and 2005 for Fudge.
contends that her claims did not accrue until 2011, when she saw
Fudge asserts that her claims did not accrue until 2012, when
The following cases are instructive.
In Pavich v. Zimmer,
surgical rods that had been implanted in his spine.
1998 WL 612290, at *2.
According to the Fifth Circuit, the
plaintiff “acquired knowledge of facts which, in the exercise of
reasonable diligence, would lead to the discovery of his injury”
when the plaintiff’s doctor told him that his pain was likely
Id. at *2 to *3.
But the plaintiff did not file his
accrued, so his action was time-barred.
In Porterfield v. Ethicon, Inc., 183 F.3d 464, 467 (5th
Cir. 1999) (per curiam), the Fifth Circuit concluded that the
plaintiff’s cause of action accrued under Texas law when she
began to conclude that her symptoms were related to her hernia
The Fifth Circuit rejected the plaintiff’s argument that
her claims did not accrue until a revision surgery revealed that
the mesh had attached itself to her liver.
plaintiff did not file her action within two years after she
began to conclude that her symptoms were related to her hernia
mesh, her claims were time-barred.
In Brandau v. Howmedica Osteonics Corp., 439 F. App’x 317,
322 (5th Cir. 2011) (per curiam), the Fifth Circuit found that
the plaintiff’s cause of action accrued under Texas law when her
doctor reviewed an x-ray of the plaintiff’s knee prosthesis and
noticed possible problems with the prosthesis.
action in Brandau was timely because the plaintiff filed her
action within two years of receiving that provisional diagnosis.
And in Woodruff v. A.H. Robins Co., 742 F.2d 228 (5th Cir.
plaintiff’s cause of action did not accrue under Texas Law until
1981, when she learned of a possible connection between her
intrauterine device and her severe pelvic disease.
connected the plaintiff’s injuries to her intrauterine device
Texas Supreme Court explained that “the discovery rule operates
diligence, should discover the ‘nature of his injury.’”
974 S.W.2d at 40.
The Childs Court noted that “discovering the
‘nature of the injury’ requires knowledge of the wrongful act
and the resulting injury.”
The Childs Court noted that a
plaintiff is aware of a “wrongful act” when he discovers “that
his injuries resulted from exposure to asbestos,” “has knowledge
of the cause in fact of her illness,” or discovers “an injury
and its general cause.”
Id. (citing, for example, Mann v. A.H.
Robins Co., 741 F.2d 79 (5th Cir. 1984) (stating that cause of
action accrued when plaintiff knew or reasonably should have
known of a connection between her intrauterine device and her
In Childs, the plaintiffs’ causes of action
accrued when they discovered (or should have discovered) that
their respiratory symptoms were related to their silica exposure
Id. at 47.
The Childs Court emphasized that accrual
is only tolled “until a claimant discovers or in the exercise of
reasonable diligence should have discovered the injury and that
it was likely caused by the wrongful acts of another.”
That is because the discovery rule “expressly
requires a plaintiff to use reasonable diligence to investigate
Id. at 47.
Here, both Plaintiffs knew or should have known that they
suffered some injuries related to ObTape by the time of their
revision surgeries, and that is when their claims accrued.
2006, Bergin’s doctor told Bergin that portions of her sling had
to be removed to treat her symptoms.
Bergin cannot seriously
dispute that she connected her symptoms to ObTape in 2006; she
believed that her symptoms were caused by her body’s rejection
of the sling.
And in 2005, Fudge understood that she had to
removal of her mesh to treat her symptoms.
Fudge’s doctor later
declined to recommend another mesh product for Fudge because of
the problems she experienced with ObTape.
A reasonable person
in either 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
pointed to evidence that they took any action to investigate
connection between ObTape and their injuries.
argue that even if they should have been aware of a causal
connection between their injuries and ObTape in 2005 or 2006,
they did not know of any wrongful conduct by Mentor until much
Plaintiffs latch on to dicta in Childs that states that
accrual is tolled until the plaintiff discovers that her injury
“was likely caused by the wrongful acts of another.”
974 S.W.2d at 40 (emphasis added).
Plaintiffs interpret this
language to mean that their claims did not accrue when they
learned of a causal connection between the product and their
injuries, but when they learned that Mentor’s “wrongful act”
First, it is not the holding in Childs.
In its holdings, the Texas court clearly indicated
that the claims accrued when the plaintiffs learned, or should
have learned, that their respiratory symptoms were caused by
silica exposure at work.
Childs, 974 S.W.2d at 46 (finding jury
question on when plaintiff Haussecker’s claims accrued because
of a genuine fact dispute regarding when he knew or should have
known of “a likely causal connection between his symptoms and
his occupational exposure” to silica); id. at 47 (finding jury
question on when he knew or should have known “that his injury
was likely work-related”).
There is no discussion about the
“wrongful acts” by the defendants.
It is also noteworthy that
the Fifth Circuit in a case decided after Childs arising under
Texas law makes no mention of a “wrongful act” accrual trigger
in a surgical mesh case.
Porterfield, 183 F.3d at 467.
claim accrued when she became aware that “her physical problems
were associated with the mesh.”
Here, Plaintiffs did not
point to any holding of a Texas court (and the Court has found
liability case until a plaintiff has knowledge that the product
The Court refuses to extend the dicta in Childs
to transform Texas’s discovery rule.
For all of these reasons, Bergin’s claims accrued in 2006,
and Fudge’s claims accrued in 2005.
within two years of the accrual.
Neither filed her action
Their claims are time-barred.
As discussed above, Mentor’s summary judgment motions (ECF
IT IS SO ORDERED, this 14th day of April, 2016.
s/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
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