Cole v. Mentor Corporation et al
Filing
41
ORDER granting 30 Motion for Partial Summary Judgment. Ordered by US DISTRICT JUDGE CLAY D LAND on 10/16/2015. (CGC)
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 No.
4:13-cv-195 (M. COLE)
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.
Plaintiff
Melanie Grubbs Cole was implanted with ObTape and asserts that
she
suffered
injuries
caused
by
ObTape.
Cole
brought
this
product liability action against Mentor, contending that ObTape
had design defects that proximately caused her injuries.1
Cole
also asserts that Mentor did not adequately warn her physicians
about the risks associated with ObTape.
Mentor contends that
several of Cole’s claims are barred by the applicable statute of
limitations.
For the reasons set forth below, the Court agrees,
and Mentor’s Motion for Partial Summary Judgment (ECF No. 30 in
4:13-cv-195) is granted.
1
Mentor argues that to the extent Cole pursues a claim under a
manufacturing defect theory, summary judgment is warranted on that
claim. Cole did not respond to Mentor’s motion on this issue, so the
Court finds that she abandoned any manufacturing defect claim she
previously asserted.
See Trnka v. Biotel, Inc., Civ. No. 07-1206
(RHK/JSM), 2008 WL 108995, at *3 n.4 (D. Minn. Jan. 9, 2008) (finding
that plaintiff abandoned claims she did not address in her opposition
to summary judgment).
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
Viewed in the light most favorable to Cole, the record
reveals the following.
She
sought
treatment
urinary incontinence.
Cole is a resident of North Carolina.
from
Dr.
C.
Frederic
Reid
for
stress
After several years of treatment, Cole
decided to undergo a mesh sling implant, and Dr. Reid implanted
Cole with ObTape on October 14, 2004.
Three weeks later, Cole
visited Dr. Reid complaining that the sling was not working
properly and that her incontinence was worse than it was before
the surgery.
Cole Dep. 120:2-121:11, ECF 30-5.
her problems to the mesh surgery.
2
Id.
She attributed
Cole continued to have problems with incontinence, and she
also
experienced
urinary
tract
associated with ObTape.
infections
and
pain
that
she
Cole visited Dr. Bradley Jacobs in
2007, and he diagnosed an erosion of the ObTape.
removed the eroded ObTape.
Dr. Jacobs
In 2008, Cole visited Dr. John Smith
because she believed that Dr. Jacobs had not removed all of the
ObTape and she wanted it removed.
Dr. Smith spoke with Cole
about her scar tissue and the mesh, and he believes he told her
that
some
of
her
pain
came
from
inflammation
caused
by
the
ObTape and if the ObTape could be removed, then most of the pain
should go away.
Dr. Smith removed more ObTape in January 2009.
Cole filed her Complaint on June 5, 2013.
claims
under
defect,
the
following
negligence,
breach
theories:
of
strict
warranty,
and
She brought
liability
strict
design
liability
failure to warn.
DISCUSSION
Cole filed this action in the United States District Court
for the District of Minnesota.
in 4:13–cv–195.
as
part
of
a
See generally Compl., ECF No. 1
The action was later transferred to this Court
multidistrict
litigation
proceeding
regarding
ObTape.
The parties agree that Minnesota law applies to Cole’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
Minnesota
law
3
applied
to
claims
of
non-
Minnesota
ObTape
Minnesota).
plaintiffs
who
brought
their
actions
in
Mentor argues that all of Cole’s claims except her
negligence claim are time-barred.
I.
Breach of Warranty Claim
The statute of limitations for Cole’s breach of warranty
claim is four years.
Minn. Stat. § 336.2-725(1).
action
the
accrues
when
breach
occurs,
“A cause of
regardless
aggrieved party’s lack of knowledge of the breach.”
§ 336.2-725(2).
delivery
is
of
the
Minn. Stat.
“A breach of warranty occurs when tender of
made,
except
that
where
a
warranty
explicitly
extends to future performance of the goods and discovery of the
breach must await the time of such performance the cause of
action
accrues
discovered.”
any
evidence
when
the
breach
is
Minn. Stat. § 336.2-725(1).
that
any
warranty
made
or
should
have
been
Cole did not point to
by
Mentor
explicitly
extended to future performance, so her breach of warranty claim
accrued in 2004, when her ObTape was implanted.
Cole did not
bring her claim within four years, so her breach of warranty
claim is time-barred.
II.
Design Defect and Failure to Warn Claims
Cole brought design defect and failure to warn claims under
a strict liability theory.
Under Minnesota law, “any action
based on the strict liability of the defendant and arising from
the manufacture, sale, use or consumption of a product shall be
4
commenced within four years.”
Under
Minnesota
allegedly
law,
caused
“a
by
Minn. Stat. § 541.05 subd. 2.
claim
a
involving
defective
product
personal
accrues
injuries
when
two
elements are present: ‘(1) a cognizable physical manifestation
of
the
disease
or
injury,
and
(2)
evidence
of
a
causal
connection between the injury or disease and the defendant’s
product, act, or omission.’”
Klempka v. G.D. Searle & Co., 963
F.2d 168, 170 (8th Cir. 1992) (quoting Hildebrandt v. Allied
Corp., 839 F.2d 396, 398 (8th Cir. 1987)) (applying Minnesota
law).
“A 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.”
Id.
For example, in Klempka, the plaintiff suffered injuries
and
was
diagnosed
with
chronic
pelvic
inflammatory
disease,
which her doctor said was caused by the plaintiff’s intrauterine
device.
Id. at 169.
Several years later, the plaintiff was
told that she was infertile and that the intrauterine device
caused her infertility.
Id.
Applying 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.
Here, Cole does not deny that she knew by
2008
the
that
at
latest
her
injuries—worsened
5
incontinence,
pain,
and
infections—were
caused
by
ObTape.
Cole
argues,
however, that her claims did not accrue until she knew that her
injuries were caused by a defect in ObTape.
Cole did not point
to any Minnesota authority holding that a plaintiff must be on
notice that her injuries were caused by a defect.
Rather, the
precedent states that the plaintiff must be aware of an injury
and a causal connection between the injury and the defendant’s
product.
Id.
Cole
nonetheless
contends
that
two
Eighth
Circuit
support denial of summary judgment in this case.
disagrees.
cases
The Court
First, Cole points to Hildebrandt v. Allied Corp.,
839 F.2d 396 (8th Cir. 1987), where the plaintiffs alleged that
they
suffered
chemical
at
lung
their
damage
due
to
workplace.
their
But
exposure
there,
to
unlike
a
toxic
here,
the
plaintiffs’ doctors initially told the plaintiffs that there was
no correlation between their symptoms and the chemical.
399.
Id. at
The Eighth Circuit thus concluded that the plaintiffs’
claims
did
injuries
was
not
accrue
rationally
until
the
cause
identified.
of
the
Second,
plaintiffs’
Cole
points
to
Tuttle v. Lorillard Tobacco Co., 377 F.3d 917 (8th Cir. 2004).
In
Tuttle,
smokeless
the
tobacco
district
product
court
found
liability
that
action
decedent discovered a lump in his cheek.
the
accrued
decedent’s
when
the
377 F.3d at 922.
The
Eighth Circuit reversed because the decedent’s doctor initially
6
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.
Hildebrandt and Tuttle are both
distinguishable from Cole’s case.
Here, unlike Hildebrandt and
Tuttle, there is no question that Cole and her doctors connected
her injuries to ObTape as early as 2004 and by 2008 at the
latest.
Cole argues that even if Minnesota’s discovery rule does
not save her strict liability claims, the statute of limitations
should
be
tolled
by
fraudulent
concealment.
“Fraudulent
concealment, if it occurs, will toll the running of the statute
of
limitations
discovery
diligence.”
of
until
the
discovery
cause
of
or
action
reasonable
by
the
opportunity
exercise
of
for
due
Holstad v. Sw. Porcelain, Inc., 421 N.W.2d 371, 374
(Minn. Ct. App. 1988); accord Hydra-Mac, Inc. v. Onan Corp., 450
N.W.2d 913, 918 (Minn. 1990).
“The party claiming fraudulent
concealment has the burden of showing that the concealment could
not have been discovered sooner by reasonable diligence on his
part and was not the result of his own negligence.”
Rarig, 234 N.W.2d 775, 795 (Minn. 1975).
Wild v.
As discussed above,
Cole suspected in 2004 that she had injuries caused by ObTape.
She knew by 2007 that portions of the ObTape had to be removed
because of an erosion.
And by 2008, Cole wanted all of the
ObTape removed because of her problems with it.
7
A reasonable
person in those circumstances would take some action to follow
up
on
the
cause
of
her
injuries.
But
Cole
pointed
to
no
evidence that she took any action to investigate her potential
claims even though she knew there was a connection between her
injuries and the ObTape.
Under these circumstances, the Court
concludes that fraudulent concealment does not toll the statute
of limitations.
Cole’s strict liability claims are therefore
barred.
CONCLUSION
As
discussed
above,
Mentor’s
Motion
for
Partial
Judgment (ECF No. 30 in 4:13-cv-195) is granted.
Summary
Only Cole’s
negligence claim remains 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
waiver.
IT IS SO ORDERED, this 16th day of October, 2015.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
8
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