BERGIN et al v. MENTOR WORLDWIDE LLC et al

Filing 50

ORDER denying 46 Motion for Reconsideration; denying 47 Motion for Reconsideration. Ordered by US DISTRICT JUDGE CLAY D LAND on 05/27/2016. (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 No.
* 4:13-cv-135 (Bergin)

IN RE MENTOR CORP. OBTAPE
TRANSOBTURATOR SLING PRODUCTS
LIABILITY LITIGATION

O R D E R
The

Court

previously

granted

Defendant

Mentor

Worldwide

LLC’s motion for summary judgment against Plaintiffs Ann Marie
and Timothy Bergin because the Bergins’ claims were time-barred
under Texas law.

In re Mentor Corp. Obtape Transobturator Sling

Prods. Liab. Litig., 4:08-md-2004, 2016 WL 1493534, at *4 (M.D.
Ga. Apr. 14, 2016) [hereinafter Bergin].

The evidence viewed in

the light most favorable to the Bergins established that Mrs.
Bergin knew or should have known of a causal connection between
Mentor’s ObTape product and some of her injuries by 2006, when
Mrs. Bergin’s doctors told her that portions of her sling had to
be removed to treat her symptoms and when Mrs. Bergin came to
believe

that

her

body

was

rejecting

the

ObTape.

Id.

The

Bergins did not file their action until 2013, so their claims
were barred under Texas’s two-year statute of limitations for
personal injury claims.
The
assert

Bergins

that

the

filed
Court

Id.
a

motion

should

for

have

reconsideration.

concluded

that

the

They
Texas

statute of limitations was tolled until the Bergins knew or
should have known that Mrs. Bergin’s injuries may have been
caused by a defect in ObTape.

The Bergins made this exact

argument in opposition to summary judgment.

The Court rejected

it then, concluding that Texas law only requires a discoverable
connection between the plaintiff’s injury and the defendant’s
product and does not require knowledge that the manufacturer
committed a wrongful act.
The Bergins argue that this Court’s rationale in
Mentor

Corp.

ObTape

Transobturator

Sling

Products

In re

Liability

Litigation, 711 F. Supp. 2d 1348, 1379-80 (M.D. Ga. 2010), a
case

decided

under

Georgia

law,

applies

here.

But

the

timeliness of the Bergins’ action must be decided under Texas
law, not under Georgia law.

The Court acknowledges that the

facts in the Georgia case are difficult to distinguish from
those presented here.
case,

this

Court

But the law is different.

was

duty-bound

to

follow

In the Georgia

Eleventh

Circuit

precedent, including Welch v. Celotex Corp., 951 F.2d 1235, 1236
(11th Cir. 1992).

In Welch, the Eleventh Circuit explained that

“the Georgia courts have held that limitations begin to run only
when

the

plaintiff

diligence

should

knows,

have

or

through

discovered,

two

the

use

distinct

of

reasonable

facts:

‘the

nature of his injury . . . [and] the causal connection between
the

injury

and

the

alleged

negligent

2

conduct

of

appellee.”

Welch,

951

F.2d

at

1236

(emphasis

added)

(alteration

in

original) (quoting King v. Seitzingers, Inc., 160 Ga. App. 318,
319 287 S.E.2d 252, 255 (1981)).
Georgia

law,

the

Eleventh

Based on this principle of

Circuit

in

Welch

reversed

summary

judgment that had been rendered by the district court in favor
of

the

defendant

Eleventh

on

Circuit

statute

concluded

of

limitations

that

a

grounds.

genuine

factual

The

dispute

existed as to whether the plaintiff knew or should have known
that “his alleged injury was the product of the wrongful conduct
of any [defendant].”

Id. at 1238 (emphasis added).

Throughout

its analysis, the Eleventh Circuit tied the accrual of the claim
and

thus

the

running

of

plaintiff’s

knowledge

defendant,

emphasizing

conclude

that

the

the

of

statute

the

that

plaintiff

a

of

limitations

“wrongful

conduct”

reasonable

“did

not

to

know

of

factfinder
of

any

the
the

could

wrongful

conduct of any [defendant] before consulting with his present
attorney.”

Id.

Applying the Eleventh Circuit’s interpretation

of Georgia statute of limitations principles from Welch, this
Court has held in previous cases, including the one now relied
on

by

begins

the
to

diligence

Bergins,
run

when

should

that
the

have

the

Georgia

plaintiff

known,

of

statute

knew,
facts

or

of
with

giving

limitations
reasonable

notice

of

an

actionable claim, i.e., a causal connection between plaintiff’s
injuries and wrongful or actionable conduct.

3

In summary, Welch

required knowledge of some connection between the plaintiff’s
injuries and some type of wrongful or actionable conduct by the
defendant.

That connection distinguishes Georgia’s statute of

limitations, as interpreted by the Eleventh Circuit in Welch,
from many around the country, including Texas’s, which tie the
statute

of

knowledge

limitations
of

a

in

causal

the

products

connection

liability

between

the

context

to

plaintiff’s

injuries and the allegedly defective product—not the plaintiff’s
injuries and the defendant’s wrongful or actionable conduct.1
In contrast, as this Court explained in its original order
granting summary judgment against the Bergins, the Texas courts
do not tie the accrual of a product liability action under the
Texas statute of limitations to “wrongful acts” of a product
liability

defendant.

Admittedly,

language

Bergin,
in

some

2016
Texas

WL
cases

1493534,
coupled

at
with

*4.
a

superficial analysis of that language could lead to confusion.
Some Texas courts have stated generally that “discovering the
‘nature of the injury’ requires knowledge of the wrongful act
and the resulting injury.”

Childs v. Haussecker, 974 S.W.2d 31,

40 (Tex. 1998) (quoting S.V. v. R.V., 933 S.W.2d 1, 5 (Tex.
1996)).

A zealous advocate cannot be faulted for latching on to

the phrase “wrongful act” in crafting an argument that Texas law
1

An argument could be made that the Eleventh Circuit got it wrong in
Welch, but this Court does not have the constitutional authority to go
down that road.

4

is the same as Georgia law on this issue.

But a more thorough

analysis of Texas law, including a closely analogous decision by
the Fifth Circuit Court of Appeals, requires rejection of this
argument.
The Texas “wrongful act” language appears to have evolved
at

least

in

part

from

medical

malpractice

cases,

doctor must commit a “wrongful act” to be liable.

where

the

Id. at 36

(citing sexual abuse case S.V., 933 S.W.2d at 1 for “wrongful
act”

language,

which

in

turn

cites

medical

malpractice

Gaddis v. Smith, 417 S.W.2d 577 (Tex. 1967)).
liability

cases,

including

Childs

and

the

case

But in product

product

liability

cases cited in Childs, the holdings of the cases establish that
the

cause

connection

of

action

between

accrues

her

when

injuries

the

and

the

plaintiff

knows

defendant’s

of

a

product.

See id., 974 S.W.2d at 46 (finding a 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 a 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 workrelated”); Glasscock v. Armstrong Cork Co., 946 F.2d 1085, 1092
(5th Cir. 1991) (cited with approval in Childs) (applying Texas
law and finding jury question on when the plaintiff’s claims

5

accrued because of a genuine fact dispute on when he knew he had
asbestosis caused by asbestos exposure); Mann v. A.H. Robins
Co., 741 F.2d 79, 81 (5th Cir. 1984) (cited with approval in
Childs) (applying Texas law and remanding for determination of
when the plaintiff knew or reasonably should have known that her
medical

condition

was

causally

related

to

the

defendant’s

product).
In

the

Texas

product

liability

cases,

there

is

no

suggestion that the cause of action does not accrue until the
plaintiff knows or should have known of a connection between the
plaintiffs’ product and any “wrongful acts” by the defendants.
Rather, the cause of action accrues when the plaintiff knows of
a connection between her injuries and the defendant’s product.
The Fifth Circuit made this clear in a case closely analogous to
the present one.

See Porterfield v. Ethicon, Inc., 183 F.3d

464, 467 (5th Cir. 1999) (per curiam) (applying Texas law and
concluding that the plaintiff’s product liability claim accrued
when the plaintiff “had knowledge that her physical problems
were associated with” her surgical mesh).

Under Texas law, when

a plaintiff learns of that connection, the plaintiff has until
the statute of limitations expires to connect her injury to
conduct of a defendant that gives rise to an actionable claim.
Id.

6

The Bergins remain unable to point the Court to any holding
of a Texas court supporting their argument that the statute of
limitations

does

not

accrue

in

a

personal

injury

product

liability action under Texas law until a plaintiff has knowledge
that the product is defective or the manufacturer committed a
wrongful act.

As this Court correctly found in its previous

order that the Bergins urge it to reconsider, Texas law provides
that the statute of limitations for the Bergins’ claims began to
run when they knew, or should have known, of a causal connection
between

Mrs.

Bergins

filed

appropriate.

Bergin’s
their

injuries
action

and

too

Accordingly,

the

late,
the

product.
summary

Bergins’

Since

the

judgment

was

motion

for

reconsideration (ECF Nos. 46 & 47 in 4:13-cv-135) is denied.

IT IS SO ORDERED, this 27th day of May, 2016.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

7