PIERCE et al v. MENTOR WORLDWIDE LLC et al

Filing 43

ORDER granting 39 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE CLAY D LAND on 08/19/2016. (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-239 (Pierce)

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

women

with

stress

urinary

incontinence.

Plaintiff

Tracie Pierce was implanted with ObTape and asserts that she
suffered

injuries

caused

by

ObTape.

Mrs.

Pierce

brought

a

product liability action against Mentor, contending that ObTape
had design and/or manufacturing defects that proximately caused
her injuries.

Mrs. Pierce also asserts that Mentor did not

adequately warn her physicians about the risks associated with
ObTape.
Mentor

Her husband Ronald asserts a loss of consortium claim.
seeks

summary

judgment

on

all

of

Plaintiffs’

claims,

contending that they are time-barred under Mississippi law.

For

the reasons set forth below, the Court agrees, and Mentor’s
summary judgment motion (ECF No. 39 in 4:13-cv-239) 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.”
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
Mrs. Pierce was diagnosed with stress urinary incontinence.
Her doctor, Dr. Charles Secrest, recommended that Mrs. Pierce
undergo a sling implantation procedure.

On December 17, 2003,

Dr. Secrest implanted Mrs. Pierce with ObTape.

In early 2004,

Mrs. Pierce developed fatigue, flu-like symptoms, and fever; a
physical exam revealed vaginal and rectal bleeding.

Mrs. Pierce

visited Dr. Secrest on March 19, 2004 complaining of fever,
malaise,

and

vaginal

discharge.

Dr.

Secrest

examined

Mrs.

Pierce and found that her ObTape had eroded; he also observed
pus and drainage.
4:13-cv-239.

Secrest Dep. 78:14-79:1, ECF No. 39-5 in

Dr. Secrest told Mrs. Pierce that her ObTape had

eroded and that she “had to go straight to the hospital” because
Dr. Secrest “said he had to remove the sling.”

2

Pierce Dep.

62:7-63:2, ECF No. 39-4 in 4:13-cv-239.
Mrs. Pierce’s ObTape that day.
fever symptoms resolved.

Dr. Secrest removed

Mrs. Pierce’s discharge and

Id. at 37:2-17.

On one occasion, Mrs.

Pierce asked Dr. Secrest if there had been “a problem with the
sling, and he said no.”
4:13-cv-239.

Pierce Dep. 52:19-22, ECF No. 40-3 in

On another occasion, she asked Dr. Secrest “if

there had been any reports of any problems, and he told [her]
no.”

Id. at 52:23-25.
Mrs. Pierce asserts that at some point after the excision

surgery, she developed urinary tract infections and had fevers
associated with those infections; Mrs. Pierce attributes these
symptoms to ObTape.

Mrs. Pierce pointed to evidence that she

was implanted with a native tissue graft in October 2004.
in

2007,

she

was

implanted

with

a

medical

InterStim to treat her pelvic symptoms.

device

And

called

Mrs. Pierce did not

have a foreign body reaction to either the graft or InterStim,
and she pointed to evidence that Dr. Secrest decided not to
implant Mrs. Pierce with another mesh product “[b]ecause of the
way [her] body reacted to the mesh.”

Id. at 125:14-126:3.

Mrs.

Pierce asserts that she did not suspect that her problems might
be

related

to

ObTape

until

she

saw

a

television

commercial

regarding mesh implant complications in 2013.
Mrs. Pierce asserts claims for negligence, strict liability
(design

defect,

manufacturing

defect,

3

and

failure

to

warn),

breach of express warranty, and breach of implied warranty.

Mr.

Pierce asserts a loss of consortium claim.
DISCUSSION
Plaintiffs filed their action in this Court on July 9, 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.

Plaintiffs

live

in

Mississippi, and all of Mrs. Pierce’s ObTape-related treatment
took place in Mississippi.

The parties agree that Mississippi

law applies to Plaintiffs’ claims.
I.

Negligence and Strict Liability Claims
Mississippi

has

a

three-year

statute

product liability and negligence claims.
1-49(1).

In

cases

that

involve

of

limitations

for

Miss. Code Ann. § 15-

“involve

latent

injury

or

disease, the cause of action does not accrue until the plaintiff
has

discovered,

or

by

discovered, the injury.”

reasonable

Mississippi

Supreme

diligence

should

have

Court

Miss. Code Ann. § 15-1-49(2).
has

determined

that

“the

The
plain

language of Section 15–1–49 supports an interpretation ‘that the
cause

of

action

accrued

upon

discovery

discovery of the injury and its cause.’”

4

of

the

injury,

not

Lincoln Elec. Co. v.

McLemore, 54 So. 3d 833, 836 (Miss. 2010) (quoting Angle v.
Koppers, Inc., 42 So. 3d 1, 5 (Miss. 2010)).
In McLemore, the plaintiff’s cause of action accrued when
his

doctor

diagnosed

him

with

Parkinsonism

and

told

the

plaintiff “that it might have been related to his welding work.”
Id. at 838.

In Angle, the plaintiff’s cause of action accrued

when she was diagnosed with various illnesses, even if she did
not know at the time that the illnesses might have been caused
by the defendant’s toxic chemicals.

Angle, 42 So. 3d at 3, 7;

see also Phillips 66 Co. v. Lofton, 94 So. 3d 1051, 1059 (Miss.
2012) (finding that the plaintiff “could not reasonably have
known about his injury” until he was diagnosed with pulmonary
fibrosis

and

experiencing

possible
symptoms

asbestosis
suggestive

even
of

though

these

he

started

diagnoses

years

before); Owens-Illinois, Inc. v. Edwards, 573 So. 2d 704, 709
(Miss. 1990) (finding that the plaintiff’s cause of action did
not accrue until he was diagnosed with asbestosis).
Under this precedent, Mrs. Pierce’s cause of action accrued
in March 2004, when Dr. Secrest diagnosed her with an erosion of
her ObTape and told her to go straight to the hospital so he
could remove the sling.

At that point, Mrs. Pierce knew or

certainly should have known that she had an injury.

And even

though Mississippi does not require that a plaintiff know the
cause of an injury for the statute of limitations to accrue,

5

Mrs.

Pierce

knew

or

should

have

known

that

her

injury

was

related to ObTape.
Mrs. Pierce emphasizes that she did not know (1) what kind
of

sling

she

had

been

implanted

with

until

years

after

the

implant surgery, (2) what an erosion is, or (3) why she had to
go straight to the hospital to have the sling removed.

Mrs.

Pierce thus appears to argue that she could not have been on
notice of her injury until she knew the name of the product that
was

connected

to

her

injuries

explanation of her diagnosis.

and

received

a

more

thorough

Presumably, Dr. Secrest would

have told Mrs. Pierce what type of sling had been implanted in
her body if she had asked.

And the Court presumes that if Mrs.

Pierce had told Dr. Secrest that she did not understand the
meaning of the word “erosion” or why it was important for her to
have the sling removed immediately, he would have told her.

The

bottom line is that Mrs. Pierce had adverse symptoms related to
her sling in March 2004 and she knew it.

That is enough to

trigger the statute of limitations under Mississippi law.
Mrs. Pierce also argues that the statute of limitations
should be tolled under Miss. Code Ann. § 15-1-67.
provides:

“If

a

person

liable

to

any

personal

That statute
action

shall

fraudulently conceal the cause of action from the knowledge of
the person entitled thereto, the cause of action shall be deemed
to have first accrued at, and not before, the time at which such

6

fraud shall be, or with reasonable diligence might have been,
first known or discovered.”
“[A]

plaintiff,

fraudulent

who

concealment

seeks

to

avail
must

doctrine,

[herself]
plead

of

the

fraudulent

concealment, and then prove that some affirmative act or conduct
was done by the defendant which prevented discovery of a claim
and that due diligence was performed on his part to discover
it.”

Carder v. BASF Corp., 919 So. 2d 258, 261 (Miss. Ct. App.

2005); accord Trustmark Nat. Bank v. Meador, 81 So. 3d 1112,
1119 (Miss. 2012) (“The party [asserting fraudulent concealment]
is required to show that (1) some affirmative act of conduct was
done and prevented discovery of the claim; and (2) due diligence
was

performed

on

its

part

to

discover

the

claim.”).

“The

requirement of proof of an affirmative act refers not to proof
of

the

act

that

gives

rise

to

the

claim

subsequent affirmative act of concealment.”

but

rather

to

a

Bryant v. Wyeth,

Inc., 816 F. Supp. 2d 329, 335 (S.D. Miss. 2011) (finding no
fraudulent concealment where a plaintiff claimed that a product
label did not adequately disclose the product’s risks and there
was no evidence of subsequent affirmative acts of concealment).
Based on the Court’s review of Mrs. Pierce’s Complaint,
Mrs. Pierce did not plead fraudulent concealment or otherwise
suggest

in

undertook

her
some

Complaint

that

affirmative

she

act

7

was
that

alleging
prevented

that
her

Mentor
from

discovering her claims.

Even if she had made such allegations,

Mrs. Pierce did not point to any evidence that Mentor undertook
an affirmative act to hinder her investigation of her potential
claims.

Mrs. Pierce’s fraudulent concealment argument is based

on her assertion that Mentor continued to market ObTape without
disclosing certain complication rates that Mentor had allegedly
discovered.

In other words, she contends that Mentor initially

provided inadequate warnings regarding ObTape and then did not
supplement its warnings.

That is not a subsequent affirmative

act of concealment that kept Mrs. Pierce from learning that she
had been injured or that her injury was connected to ObTape.
Mrs. Pierce knew or should have known in 2004, when she
experienced

complications

that

required

the

removal

of

her

ObTape, that she had suffered an injury and that the injury was
related to ObTape.

At that time, a person of common knowledge

and experience in Mrs. Pierce’s position would have been on
notice that her injuries may be related to ObTape, and she would
have been able to begin an investigation to determine whether
those injuries were caused by a problem with ObTape, a problem
with the implantation surgery, or another problem.
Mrs.

Pierce

did

not

point

to

evidence

that

she

But here,
exercised

reasonable diligence to investigate her injury after she learned
of it.

She asserts that she asked her implanting physician once

if there was a problem with the sling and once if there had been

8

any

problems

reported

with

the

sling.

The

Court

is

not

convinced that asking these two questions of one doctor amounts
to reasonable diligence, particularly given that the same doctor
told

Mrs.

another

Pierce

mesh

ObTape.

that

sling

he

did

because

not

of

want

to

way

her

the

implant
body

her

with

reacted

to

In sum, Mrs. Pierce did not point to any evidence that

Mentor took affirmative acts to prevent her from knowing of a
potential connection between ObTape and her injuries, so Miss.
Code

Ann.

§

15-1-67

does

not

apply

to

toll

the

statute

of

limitations.
For the reasons set forth above, the statute of limitations
for

Mrs.

Pierce’s

product

liability

and

negligence

claims

accrued in March 2004, when Mrs. Pierce knew or should have
known that she suffered an injury related to ObTape.

She did

not

product

file

this

action

within

three

years,

so

her

liability and negligence claims are time-barred.
II.

Breach of Warranty Claims
Mississippi

has

a

six-year

breach of warranty actions.
breach

of

warranty

except

that

where

occurs
a

statute

of

limitations

Miss. Code Ann. § 75-2-725(1).
when

warranty

tender

of

explicitly

delivery
extends

is
to

for
“A

made,
future

performance of the goods and discovery of the breach must await
the time of such performance the cause of action accrues when
the breach is or should have been discovered.”

9

Miss. Code Ann.

§ 75-2-725(2).

“The statute in unmistakable language states

that in order for a warranty of this type to extend beyond six
years after the date of tender of delivery, such warranty must
explicitly relate to future performance of the goods.”

Rutland

v. Swift Chem. Co., 351 So. 2d 324, 325 (Miss. 1977) Plaintiffs
did not point to any evidence that any warranty made by Mentor
explicitly extended to future performance.
Mrs. Pierce notes that § 75-2-725(1) “does not alter the
law on tolling of the statute of limitations.”
§ 75-2-725(4).
establish

Miss. Code Ann.

But as discussed above, Mrs. Pierce did not

fraudulent

concealment.

Mrs.

Pierce’s

breach

of

warranty claims thus accrued on December 17, 2003, when Mrs.
Pierce was implanted with ObTape.
until

more

than

nine

years

She did not file this action

later.

Her

warranty

claims

are

therefore time-barred.
CONCLUSION
As discussed above, all of Mrs. Pierce’s claims are timebarred.

Mr. Pierce’s loss of consortium claim fails because

Mrs. Pierce’s claims fail.

See Owens Corning v. R.J. Reynolds

Tobacco Co., 868 So. 2d 331, 341-42 (Miss. 2004) (noting that
loss

of

consortium

claims

are

derivative

and

that

“the

plaintiffs in these actions stand in the shoes of the injured
. . .

party,

available

subject

against

the

to

all

defenses

injured

10

that

person”).

would

have

Mentor’s

been

summary

judgment

motion

(ECF

No.

39

in

4:13-cv-239)

is

therefore

granted.

IT IS SO ORDERED, this 19th day of August, 2016.
s/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

11