BERGIN et al v. MENTOR WORLDWIDE LLC et al

Filing 44

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
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-135 (Bergin)
4:13-cv-144 (Fudge)
*

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 Ann

Marie Bergin and Wendy Fudge were implanted with ObTape and
assert that they suffered injuries caused by ObTape.

Plaintiffs

brought

contending

that

product

ObTape

had

liability
design

actions
and/or

proximately caused their injuries.

against

Mentor,

manufacturing

defects

that

Plaintiffs also assert that

Mentor did not adequately warn their physicians about the risks
associated

with

ObTape.

Mentor

seeks

summary

judgment

on

Plaintiffs’ claims, contending that they are time-barred under
Texas law.

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

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.

Ann Marie Bergin
Dr. Keith Grisham diagnosed Ann Marie Bergin with stress

urinary incontinence and other medical issues.
2005,

Dr.

Grisham

implanted

Bergin

with

On September 7,

ObTape.

In

late

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
procedure.
exposed

Dr. Grisham surgically removed a piece of Bergin’s

ObTape

on

March

22,

2006.

Bergin

continued

experience bloody discharge, as well as granulated tissue.

to
Dr.

Grisham surgically excised Bergin’s granulated tissue, as well
as some infected mesh, on September 13, 2006.

2

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
to ObTape.

At the time of her excision procedures, Bergin knew

that she had portions of her sling removed to treat her bleeding
and discharge symptoms.
40-4.

Bergin Dep. 57:13-22, 58:14-18, ECF No.

She believed that her body was rejecting the sling.
Bergin

treatment

is

took

negligence;

a

Texas

place

strict

in

resident,
Texas.

liability

and

Bergin

(design

her

ObTape-related

asserts

defect,

claims

for

manufacturing

defect, failure to warn); breach of express warranty; breach of
implied

warranty;

and

punitive

damages.

Bergin

argues

that

Mentor’s summary judgment motion should be denied as to her
negligence, strict liability, and punitive damages claims.
Court

therefore

finds

that

Bergin

implicitly

conceded

The
that

Mentor is entitled to summary judgment on her warranty claims,
and the Court grants Mentor’s summary judgment motion as to
those claims.1
II.

Wendy Fudge
On October 30, 2003, Dr. Brian Feagins implanted Fudge with

ObTape to treat her stress urinary incontinence.
1

Within six

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.

3

months, Fudge began to experience vaginal discharge and odor.
Fudge

went

symptoms

to

could

suggested

that

treatment.

see
be

her

gynecologist,

related

Fudge

to

return

her
to

and

she

sling.
Dr.

asked

The

Feagins

if

her

gynecologist

for

follow-up

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.

Later that
Her symptoms

continued, and Dr. Feagins performed three additional revision
surgeries.

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
had resolved.

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
took

place

in

Texas.

Fudge

asserts

claims

for

negligence;

strict liability (design defect, manufacturing defect, failure
to

warn);

breach

of

implied

warranty;

breach

of

express

warranty; fraudulent concealment; constructive fraud; negligent
misrepresentation; negligent infliction of emotional distress;

4

gross

negligence;

unjust

enrichment;

and

punitive

damages.

Fudge argues that Mentor’s summary judgment motion should be
denied

as

to

her

misrepresentation,

negligence,
and

gross

strict

liability,

negligence

claims.

negligent
The

Court

therefore finds that Fudge implicitly conceded that Mentor is
entitled to summary judgment on her remaining claims, including
her

warranty,

emotional

unjust

distress,

enrichment,

and

fraud

negligent

claims,

and

infliction

the

Court

of

grants

Mentor’s summary judgment motion as to those claims.2
DISCUSSION
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.”
§ II(E),

ECF

No.

446

in

Order Regarding Direct Filing

4:08-md-2004.

Bergin

is

a

Texas

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
2

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.

5

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
Texas.

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.
Plaintiffs

both

assert

personal

Mentor under a variety of theories.
their

claims

Plaintiffs’

are

claims

limitations.

claims

The

subject

against

Mentor contends that all of

time-barred.
are

injury

to

parties

a

two-year

agree

that

statute

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.”

Childs

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.
1994)).
accrue

Under the discovery rule, “a cause of action does not
until

reasonable

a

care

plaintiff
and

knows

or,

diligence,

‘should

wrongful act and resulting injury.’”
R.V., 933 S.W.2d 1, 4 (Tex. 1996)).

6

through

the

have

exercise

known

of

of
the

Id. at 37 (quoting S.V. v.

Mentor
Plaintiffs

argues
and

that

their

Plaintiffs’

doctors

linked

claims

at

least

accrued
some

of

symptoms to ObTape—2006 for Bergin and 2005 for Fudge.

when
their
Bergin

contends that her claims did not accrue until 2011, when she saw
an

advertisement

suggesting

that

ObTape

was

defective.

And

Fudge asserts that her claims did not accrue until 2012, when
she

learned

from

a

work

colleague

that

ObTape

might

be

defective.
The following cases are instructive.
Inc.,

157

Circuit

F.3d

found

plaintiff’s

903

claims

Cir.

the

Texas

based

that

(5th

on

1998)

In Pavich v. Zimmer,

(per

discovery
injuries

curiam),
rule

caused

the

applied
by

to

breaks

surgical rods that had been implanted in his spine.
1998 WL 612290, at *2.

Fifth
a
in

Pavich,

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
caused

by

accrued.
suit

breaks

in

the

Id. at *2 to *3.

until

more

than

two

rods,

and

that

is

when

his

claims

But the plaintiff did not file his
years

after

accrued, so his action was time-barred.

his

cause

of

action

Id.

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

7

began to conclude that her symptoms were related to her hernia
mesh.

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.

Id.

Because the

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.

Id.

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.

The plaintiff’s

action in Brandau was timely because the plaintiff filed her
action within two years of receiving that provisional diagnosis.
Id.
1984)

And in Woodruff v. A.H. Robins Co., 742 F.2d 228 (5th Cir.
(per

curiam),

Fifth

Circuit

determined

that

the

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.

In Woodruff,

there

her

was

no

evidence

that

the

plaintiff

or

doctors

connected the plaintiff’s injuries to her intrauterine device
before 1981.
Finally,
developed

in

Childs,

silicosis

after

a

case

inhaling

8

involving
silica

dust

plaintiffs
at

work,

who
the

Texas Supreme Court explained that “the discovery rule operates
to

defer

discovers

accrual
or,

of

a

through

cause

the

of

exercise

action
of

until

a

reasonable

diligence, should discover the ‘nature of his injury.’”
974 S.W.2d at 40.

plaintiff
care

and

Childs,

The Childs Court noted that “discovering the

‘nature of the injury’ requires knowledge of the wrongful act
and the resulting injury.”

Id.

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
endometriosis)).

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
at work.

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.”
(emphasis added).

Id.

That is because the discovery rule “expressly

requires a plaintiff to use reasonable diligence to investigate
his injury.”

Id. at 47.

9

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.

In

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.
have

several

And in 2005, Fudge understood that she had to
revision

surgeries

and,

ultimately,

removal of her mesh to treat her symptoms.

a

complete

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
surgery,

or

some

other

problem.

Neither

Bergin

nor

Fudge

pointed to evidence that they took any action to investigate
their

potential

claims

even

though

they

knew

connection between ObTape and their injuries.

there

was

a

Instead, they

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
later.

10

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).

Childs,

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”
caused

their

unpersuasive.
mere dicta.

injury.

The

Court

finds

this

argument

First, it is not the holding in Childs.

It is

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

plaintiff

Martinez’s

claims

because

of

a

fact

question on when he knew or should have known “that his injury
was likely work-related”).
connection

between

the

There is no discussion about the

plaintiffs’

“wrongful acts” by the defendants.

silica

exposure

and

any

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

11

in a surgical mesh case.
the

Fifth

Circuit

in

Porterfield, 183 F.3d at 467.

Porterfield

found

that

the

Rather,

plaintiff’s

claim accrued when she became aware that “her physical problems
were associated with the mesh.”

Id.

Here, Plaintiffs did not

point to any holding of a Texas court (and the Court has found
none)

supporting

limitations

does

Plaintiffs’

argument

not

in

accrue

a

that

the

personal

statute

injury

of

product

liability case until a plaintiff has knowledge that the product
manufacturer

committed

plaintiff’s

injury

discoverable.

and

a

“wrongful

act”—even

a

connection

to

the

though
product

the
were

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.

CONCLUSION
As discussed above, Mentor’s summary judgment motions (ECF
No.

40

in

4:13-cv-135

and

ECF

No.

45

in

4:13-cv-144)

are

granted.
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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