STANDRIDGE v. MENTOR WORLDWIDE LLC
Filing
39
ORDER granting 36 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-243 (Standridge)
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
Sandra Standridge was implanted with ObTape and asserts that she
suffered
injuries
caused
by
ObTape.
Standridge
brought
a
product liability action against Mentor, contending that ObTape
had design and/or manufacturing defects that proximately caused
her
injuries.
Standridge
also
asserts
that
Mentor
did
not
adequately warn her physicians about the risks associated with
ObTape.
Mentor seeks summary judgment on all of Standridge’s
claims, contending that they are time-barred under Alabama law.
For the reasons set forth below, the Court agrees, and Mentor’s
summary judgment motion (ECF No. 36 in 4:13-cv-243) 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.”
Fed. R.
Civ. P. 56(a).
In determining whether a
genuine
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
Standridge
developed
stress
urinary
incontinence.
She
consulted with Dr. Brian Wade and decided to undergo a sling
implant
to
treat
her
incontinence.
Dr.
Standridge with ObTape on April 28, 2005.
Wade
implanted
After the surgery,
Standridge developed pain and had difficulty urinating.
At her
follow-up appointment with Dr. Wade one month after the surgery,
Dr. Wade told Standridge that her symptoms would resolve in
time.
The symptoms did not resolve, but Standridge did not
return to Dr. Wade or see another doctor at the time because she
did not have health insurance.
In
September
2006,
Standridge
visited
Dr.
Leon
Hamrick.
Dr. Harmick examined Standridge and noted that the tissue over
Standridge’s
ObTape
was
thin.
Standridge
believes
that
Dr.
Hamrick told her that “there was a[n] incision that was not
2
healed.”
Standridge Dep. 62:23-25, ECF No. 37-3.
Dr. Hamrick
examined Standridge under anesthesia on October 13, 2006.
He
found that a portion of Standridge’s ObTape was exposed, and he
removed the exposed portion.
See id. at 69:20-23 (acknowledging
that a doctor told her that he had “snipped” her sling).
Standridge continued to experience pain, and she developed
infections.
In
2007
or
2008,
Standridge
did
some
internet
research on her symptoms, but she did not find a connection
between her symptoms and her sling.
In May 2008, Standridge
consulted with Dr. William Summers.
Summers removed another
portion
of
Standridge’s
ObTape
because
he
believed
that
the
presence of the foreign body could be worsening her infections.1
Summers
Dep.
247:8-17,
ECF
No.
37-6;
accord
Standridge
Dep.
84:6-85:9, 106:22-107:6 (stating that Dr. Summers talked with
her
about
“foreign
objects”
and
acknowledging
that
she
understood that removing the foreign object may help her body
heal).
Standridge 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 2012.
Standridge asserts claims for negligence, strict liability
(design
defect,
breach
of
manufacturing
express
defect,
and
failure
breach
of
implied
warranty,
1
to
warn),
warranty,
Standridge notes that Dr. Summers testified that he “never linked any
sling with any infection.” Summers Dep. 240:18-19. He went on to say
that he did not think the ObTape “was the cause of the infection other
than the presence of a foreign body.” Id. at 241:15-17.
3
fraudulent
misrepresentation,
fraudulent
concealment,
and
negligent misrepresentation.
DISCUSSION
Standridge filed her 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.
Standridge
lives
in
Alabama, and all of Standridge’s ObTape-related treatment took
place in Alabama.
The parties agree that Alabama law applies to
Plaintiffs’ claims.
Alabama has a two-year statute of limitations for personal
injury claims.
Ala. Code § 6-2-38(l).
Standridge does not
dispute that this statute of limitations applies to all of her
claims except her warranty claims.
Alabama has a four-year
statute of limitations for warranty claims. Ala. Code § 7-2725(1)-(2).
in
whose
thereon.”
1992).
“A cause of action ‘accrues’ as soon as the party
favor
it
arises
is
entitled
to
maintain
an
action
Smith v. Medtronic, Inc., 607 So. 2d 156, 159 (Ala.
“A party has a cause of action, and the statute of
limitations begins to run, on the date the first legal injury
occurs, but not necessarily from the date of the act causing the
injury.”
Id.
Thus, the statute of limitations begins to run
4
when a plaintiff first suffers damages as a result of the act
causing the injury.
Alabama
Alabama’s
does
Id.
not
discovery
have
rule
a
discovery
only
applies
rule
in
in
fraud
most
cases;
actions
and
“cases involving the fraudulent concealment of the existence of
a cause of action.”
Utilities Bd. of City of Opp v. Shuler
Bros., 138 So. 3d 287, 293-94 (Ala. 2013).
Under Alabama’s
discovery rule, a claim does not accrue “until the discovery by
the aggrieved party of the fact constituting the fraud.”
Code
§
6-2-3.
Under
this
statute,
“the
limitations
Ala.
period
begins to run when the plaintiff was privy to facts which would
‘provoke
prudence,
inquiry
and
in
which,
the
if
discovery of the fraud.’”
mind
of
followed
a
up,
[person]
would
of
have
reasonable
led
to
the
Auto-Owners Ins. Co. v. Abston, 822
So. 2d 1187, 1195 (Ala. 2001) (alteration in original) (quoting
Willcutt v. Union Oil Co., 432 So.2d 1217, 1219 (Ala. 1983)).
In other words, “the expiration of a limitation period is tolled
only until the plaintiff discovers, or should have discovered
through the exercise of due diligence, his cause of action.”
Sellers v. A.H. Robins Co., 715 F.2d 1559, 1561 (11th Cir. 1983)
(per curiam) (applying Alabama law).
As the Eleventh Circuit
explained, “[a] plaintiff using the tolling statute must allege,
or on summary judgment establish, prima facie facts which show
that
the
defendant
fraudulently
5
prevented
discovery
of
the
wrongful
act
on
which
the
action
is
based.”
Id.;
accord
Holdbrooks v. Cent. Bank of Ala., N.A., 435 So. 2d 1250, 1253
(Ala.
1983)
defendant
(affirming
where
there
that
was
summary
no
judgment
evidence
of
in
“an
favor
of
a
affirmative
inducement to [the plaintiff] to delay bringing action”).
In Sellers, the plaintiff suffered injuries caused by her
intrauterine device.
The plaintiff asserted that she did not
suspect a causal connection between the device and her injuries
until
years
after
she
suffered
the
injuries.
The
Eleventh
Circuit found that the plaintiff had not presented sufficient
evidence to show that the manufacturer fraudulently concealed
her cause of action.
provided
numerous
Sellers, 715 F.2d at 1561. “Instead, she
exhibits
relevant
to
whether
[the
manufacturer] fraudulently induced her to use the [product], an
issue not before the court.”
Id.
In Sellers, the “cause of
action was tolled until such time as she discovered, or should
have
discovered,
through
the
facts constituting the fraud.”
exercise
of
Id. at 1562.
due
diligence,
the
The court reasoned
that after the plaintiff, a young woman, began to experience
“gross gynecological abnormalities,” she had a duty “to inquire
about the cause of such grave ailments.”
Id.
Here, as in Sellers, Standridge argues that Mentor did not
adequately disclose the risks of ObTape prior to Standridge’s
implant
surgery
and
that
Mentor
6
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
affirmative
learning
act
that
its
of
she
warnings.
That
concealment
had
connected to ObTape.
been
that
injured
is
not
kept
or
a
subsequent
Standridge
that
her
from
injury
was
By 2008, Standridge had undergone at least
two excision procedures, and she had been told that the presence
of the sling, a foreign body, could be worsening her infections.
At that time, a person of common knowledge and experience in
Standridge’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,
implantation surgery, or another problem.
a
problem
with
the
Although Standridge
did point to evidence that she researched her symptoms on the
internet, she did not point to any evidence that she took any
further action to investigate after Dr. Summers performed an
excision procedure in May 2008, even though she understood from
Dr.
Summers
that
the
presence
making her infections worse.
of
the
foreign
body
could
be
The Court is thus not convinced
that Standridge exercised reasonable diligence to investigate
her potential claims.
And, Standridge did not point to any
evidence that Mentor took affirmative acts to prevent her from
7
knowing
injuries,
of
so
a
potential
Ala.
Code
connection
between
§
6-2-3
does
not
set
forth
above,
ObTape
apply
to
and
her
toll
the
statute of limitations.
For
the
reasons
Standridge’s
injury claims accrued in May 2008 at the latest.
personal
She did not
bring this action until more than five years later, so all of
her claims are time-barred.
CONCLUSION
As discussed above, Mentor’s summary judgment motion (ECF
No. 36 in 4:13-cv-243) is 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
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