LITTLE et al v. MENTOR WORLDWIDE LLC

Filing 39

ORDER granting (36) Motion for Summary Judgment in case 4:13-cv-00244-CDL; granting (36) Motion for Summary Judgment in case 4:13-cv-00245-CDL. Ordered by US DISTRICT JUDGE CLAY D LAND on 08/15/2016. (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 No.
* 4:13-cv-244 (Little)
* 4:13-cv-245 (Winchester)

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

Janice Little and Julie Winchester were implanted with ObTape.
Each

Plaintiff

ObTape.

asserts

that

she

suffered

injuries

caused

by

Plaintiffs brought product liability actions against

Mentor, contending that ObTape had design and/or manufacturing
defects that proximately caused their injuries.
assert

that

Mentor

did

not

adequately

warn

about the risks associated with ObTape.

Plaintiffs also
their

physicians

Mrs. Little’s husband

James asserts a loss of consortium claim.

Mentor seeks summary

judgment

contending

on

all

of

Plaintiffs’

claims,

claims are time-barred under Oklahoma law.

that

the

For the reasons set

forth below, the Court agrees, and Mentor’s summary judgment

motions (ECF No. 36 in 4:13-cv-244 and ECF No. 36 in 4:13-cv245) are granted.1
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.

Factual Background – Mr. and Mrs. Little
On April 24, 2006, Dr. Clifton Whitesell implanted Mrs.

Little with ObTape to treat her stress urinary incontinence.

At

the time, Dr. Whitesell was not aware that Mentor had stopped
selling

ObTape

in

March

2006.

Mrs.

Little’s

incontinence

symptoms improved, and her incision was healing nicely.
1

But in

Winchester and the Littles assert their claims separately in two
independent civil actions.
Because the resolution of the summary
judgment motions in both actions involves similar issues of Oklahoma
law, the Court decides both motions in this single order.

2

late 2006, Mrs. Little experienced painful intercourse with her
husband, and Mr. Little was cut by the sling.

At that point,

Mrs. Little realized that something had gone wrong.
Mrs. Little returned to Dr. Whitesell in December 2006 and
reported recurrent stress urinary incontinence, abdominal pain,
and

painful

intercourse.

Dr.

Whitesell

suspected

that

Mrs.

Little’s sling was causing her problems and that he might need
to remove it.
Little,

and

removed.

Dr. Whitesell discussed his suspicion with Mrs.
she

decided

that

she

wished

to

have

the

sling

Dr. Whitesell examined Mrs. Little under anesthesia,

determined that the sling had failed, and removed the sling.
Dr. Whitesell told Mrs. Little that he had removed the sling
because he believed it was causing her pain symptoms.
Little

acknowledges

that

she

understood

that

the

sling

Mrs.
had

failed and was causing problems; she hoped that removing the
sling would cure her symptoms.

After the December 2006 removal

of Mrs. Little’s ObTape, Mrs. Little’s abdominal pain resolved,
and she was able to resume normal sexual relations with her
husband.

Her stress urinary incontinence worsened, however.

In

2007, Dr. Whitesell implanted Mrs. Little with a different kind
of sling.

See Little Dep. 189:11-16, ECF No. 36-5 (stating that

Dr. Whitesell “certainly wasn’t going to use the one he had
previously used [ObTape] because that one had failed and was -something was wrong”).

Mrs. Little asserts that she did not

3

suspect that her problems might be related to a defect in ObTape
until she saw a television commercial regarding mesh implant
complications in 2013.
Mrs. Little asserts claims for negligence, strict liability
(design

defect,

breach

of

manufacturing

express

fraudulent

and

failure

breach

of

implied

warranty,

misrepresentation,

negligent

fraudulent

misrepresentation.

consortium claim.
to

defect,

summary

Mr.

Little

to

warn),

warranty,

concealment,
asserts

a

loss

and
of

Mrs. Little concedes that Mentor is entitled

judgment

on

her

breach

of

warranty

claims,

and

summary judgment is thus granted as to those claims.
II.

Factual Background – Winchester
On September 1, 2004, Dr. Gregory Jia implanted Winchester

with ObTape to treat her stress urinary incontinence.

Several

months after her implant surgery, Winchester began to experience
pelvic

cramps

examined

and

Winchester
Dr.

malodorous

vaginal

and

could

feel

Jia

believed

discharge.

the

that

Dr.

sling.

her

sling

Jia

Winchester

understood

that

had

become

infected.

Winchester Dep. 184:6-11, ECF No. 37-5 (“[Dr. Jia]

believed that the infection got onto the sling, so he took that
sling out and put a new sling in.”).

In November 2005, Dr. Jia

removed Winchester’s ObTape and implanted a new ObTape.
A

couple

Winchester

began

months
to

after

the

experience

4

second

vaginal

implant

drainage

surgery,

again.

She

visited Dr. Sherry Thomas, who diagnosed Winchester with a sling
erosion and infection in July 2006.
that

the

sling

removed.

was

infected

Dep.

Thomas

an

129:5-7,

Dr. Thomas told Winchester

foreign
ECF

body

No.

and

36-7.

had

to

be

Winchester

understood that Dr. Thomas was planning to remove her ObTape.
Dr. Thomas removed Winchester’s second ObTape on July 19, 2006.
At some point, Winchester asked Dr. Thomas if the sling could be
causing her infections.

According to Winchester, Dr. Thomas

said “she didn’t believe so because she had put several in and
had nothing like this happen to them . . . so she believed that,
she took the foreign body out . . . and was going to let my
vagina wall heal.”

Winchester Dep. at 261:10-16.

Winchester

acknowledges that she never asked Dr. Thomas why her ObTape
implants

had

not

been

a

success

even

though

success with the product in other patients.

Dr.

Thomas

had

Id. at 205:5-12.

Winchester asserts that she did not suspect that her problems
might

be

related

to

a

defect

in

ObTape

until

she

saw

a

television commercial on mesh implant complications in 2012.
Winchester asserts claims for negligence, strict liability
(design

defect,

breach

of

fraudulent

manufacturing

express

defect,

and

failure

breach

of

implied

warranty,

misrepresentation,

negligent misrepresentation.

fraudulent

to

warn),

warranty,

concealment,

and

Winchester concedes that Mentor is

5

entitled to summary judgment on her breach of warranty claims,
and summary judgment is thus granted as to those claims.
DISCUSSION
The

Littles

and

Winchester

filed

their

actions

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.”

Order

Regarding Direct Filing § II(E), ECF No. 446 in 4:08-md-2004.
Plaintiffs lived in Oklahoma when they filed their actions, and
all

of

Plaintiffs’

ObTape-related

The

agree

Oklahoma.

parties

that

treatment
Oklahoma

took
law

place

in

applies

to

Plaintiffs’ claims.
Oklahoma has a two-year statute of limitations for product
liability claims.

Okla. Stat. tit. 12, § 95(3); Kirkland v.

Gen. Motors Corp., 521 P.2d 1353, 1361 (Okla. 1974); Fuchs v.
Fleetwood Homes of Texas, 149 P.3d 1099, 1101–02 (Okla. Civ.
App.

2006).

statute

of

Plaintiffs
limitations

do

not

applies

dispute
to

their

that

this

two-year

negligence,

strict

liability, fraud, and misrepresentation claims. They contend,
however,

that

their

claims

did

not

accrue

under

Oklahoma’s

discovery rule until they saw a television advertisement about
mesh complications shortly before they filed their actions.

6

Under Oklahoma’s discovery rule, the statute of limitations
for a product liability action begins to run when “the plaintiff
knows, or as a reasonably prudent person should know, that he
has

the

condition

for

which

his

action

is

brought

and

that

defendant has caused it.” Williams v. Borden, Inc., 637 F.2d
731,

734

(10th

Cir.

1980)

(applying

Oklahoma

law);

accord

Daugherty v. Farmers Co-op. Ass’n, 689 P.2d 947, 950–51 (Okla.
1984) (confirming that Oklahoma applies the discovery rule in
product liability actions).

The discovery rule applies when a

plaintiff, “despite the exercise of due diligence, [is unable]
to know of the injury or its cause.”

Resolution Trust Corp. v.

Grant, 901 P.2d 807, 813 (Okla. 1995).

“The purpose of the rule

is to exclude the period of time during which the injured party
is reasonably unaware that an injury has been sustained so that
people in that class have the same rights as those who suffer an
immediately ascertainable injury.”

Id.

Once a plaintiff knows

or should know of a connection between the defendant’s product
and her injuries, she “is required to pursue [her] claim with
diligence.”
limitation

Daugherty,
were

not

689

designed

P.2d
to

at

help

inquiries

951.
those

plainly

“Statutes
who

of

negligently

refrain

from

prosecuting

suggested

by

the

facts.”

Id.

“A plaintiff is chargeable with knowledge of facts

which he ought to have discovered in the exercise of reasonable
diligence.”

Id.

7

In Borden, the Tenth Circuit predicted that the Oklahoma
Supreme

Court

would

liability actions.

apply

the

discovery

rule

in

product

The plaintiff in Borden developed asthma and

believed that her condition was caused by polyvinyl chloride
fumes she inhaled at her workplace.

At the time, the medical

community had not yet discovered that the fumes could cause
asthma.
not

The Tenth Circuit found that the plaintiff’s claim did

accrue

causation.

until

she

Borden,

could

637

F.2d

obtain
at

some

733–34.

medical
In

proof

Daugherty,

on
the

Oklahoma Supreme Court stated that the Tenth Circuit in Borden
“correctly predicted [the Oklahoma Supreme Court’s] approval of
the

discovery

rule

in

those

cases

applying

limitations to products liability actions.”
at 950.

the

statute

of

Daugherty, 689 P.2d

The Daugherty court warned, however, that the discovery

rule “must not be interpreted as broadly as could be inferred
from

Borden.”

Id.

The

Daugherty

court

emphasized

that

in

Borden, “a reasonably prudent person could not have discovered
the cause of the” asthma because the medical community had not
yet determined that PVC fumes could cause asthma.
words,

the

Borden

plaintiff

“had

no

way

of

Id.

In other

attributing

symptoms to an injury which defendant’s product caused.”
The

Daugherty

court

further

stated:

“Properly

limited,

his
Id.
a

discovery rule should encompass the precept that acquisition of
sufficient information which, if pursued, would lead to the true

8

condition of things will be held as sufficient knowledge to
start the running of the statute of limitations.”

Id. at 950-

951.
In

Daugherty,

injuries

caused

plaintiff’s

the

by

doctor

plaintiff

exposure
diagnosed

asserted

to

toxic

the

that

he

suffered

pesticides.

plaintiff

with

The

pesticide

toxicity, and that is when “the connection between the product
and the injury was discoverable.”

Id. at 950.

At that point,

“the circumstances were such as to put a reasonable man upon
inquiry,” and the plaintiff was “chargeable with the knowledge
such

inquiry

plaintiff

did

would
not

have

produced.”

pursue

a

claim

Id.

at

951.

against

the

But

the

insecticide

manufacturer until nearly three years after his diagnosis, and
the Oklahoma Supreme Court concluded that his claims were barred
because the record showed that he had enough facts “to put a
reasonable man upon inquiry” years before he filed his action.
Id.
Here,
connection

Plaintiffs
between

advertisements

argue

ObTape

regarding

that

and

mesh

they

their

did

not

injuries

complications

in

learn

until
2012

of

they
or

a

saw

2013.

But each Plaintiff knew that she suffered some injuries related
to ObTape well before then.
By late 2006, Mrs. Little understood that her ObTape had
failed and was causing problems, and she hoped that removing the

9

sling would cure her symptoms.

After Mrs. Little’s ObTape was

removed in December 2006, her abdominal pain and dyspareunia
symptoms resolved.

And when Mrs. Little underwent another sling

implant surgery in 2007, she received a different type of sling
because her doctor “certainly wasn’t going to use the one he had
previously used [ObTape] because that one had failed and was -something was wrong.”

Little Dep. 189:11-16.

In sum, Mrs.

Little should have been on notice of a connection between at
least some of her symptoms and ObTape by December 2006.
By July 2006, Winchester had suffered an ObTape erosion.
She knew that her sling was infected and needed to be removed
from her body.
the

sling

Winchester asserts that she asked Dr. Thomas if

could

be

causing

some

of

her

infections,

and

Dr.

Thomas said “she didn’t believe so because she had put several
in

and

had

nothing

like

this

happen

to

them

. . .

so

she

believed that, she took the foreign body out . . . and was going
to let my vagina wall heal.”

Winchester Dep. at 261:10-16.

Although Dr. Thomas did not tie some of Winchester’s infections
to

ObTape,

including
ObTape.

she
the

For

did

attribute

erosion
these

some

through

reasons,

of

Winchester’s

Winchester’s

Winchester

vaginal

should

have

injuries—
wall—to
been

on

notice of a connection between at least some of her symptoms and
ObTape by July 2006.

10

In

summary,

Mrs.

Little

and

Winchester

knew

of

or

had

enough information to know of a connection between ObTape and at
least some of their injuries by 2006.

A reasonable person in

that 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.
any

evidence

that

she

Mrs. Little did not point to

exercised

investigate her potential claims.

reasonable

diligence

Nor did Winchester.

to

Although

Winchester asked one doctor if her infection symptoms might be
caused by ObTape and was told that the doctor did not think so
because she had a good record of success with ObTape, Winchester
knew that the ObTape had eroded through her vaginal wall and had
to

be

removed

so

she

could

heal.

In

other

words,

while

Winchester pointed to evidence that she attempted to follow up
on

a

suspected

connection

between

ObTape

and

some

of

her

symptoms, she did not point to evidence that she attempted to
follow up on the erosion injuries, which she knew or should have
known were related to ObTape.

Plaintiffs also did not point to

evidence that they could not have discovered enough facts to
support their product liability and misrepresentation claims had
they

started

investigating

the

connection

they

made

(or

had

enough information to make) between ObTape and their injuries
within a reasonable time after they discovered the connection.

11

Plaintiffs filed their actions more than six years after
they knew or should have known that at least some of their
symptoms were connected to ObTape.
statute

of

limitations

fraudulently

concealed

should
from

Plaintiffs argue that the
be

tolled

Plaintiffs

because

that

Mentor

ObTape

was

defective, so Plaintiffs could not have been on notice in 2006
that a defect in ObTape caused their injuries.

Plaintiffs did

not point to any Oklahoma authority holding that a plaintiff
must be on actual notice that her injuries were caused by a
product defect.2

Rather, the precedent establishes that a claim

accrues when the plaintiff becomes aware of an injury and a
causal

connection

between

the

injury

and

the

defendant’s

product. See Daugherty, 689 P.2d at 950 (finding that statute of
limitations
product

began

and

fraudulent

the

to

run

injury

concealment

when
was

only

“the

connection

discoverable”).

applies

when

a

between

the

Furthermore,

party

wrongfully

conceals material facts to prevent discovery of the cause of
action.

Masquat v. DaimlerChrysler Corp., 195 P.3d 48, 54–55

(Okla. 2008).

“The ‘mere failure to disclose such material

2

Winchester cites the Court’s Order in Dover v. Mentor Corp., 711 F.
Supp. 2d 1348, 1379-80 (M.D. Ga. 2010), to support her argument that
the statute of limitations did not accrue until she had notice of a
defect in ObTape. But Dover was decided under Georgia law, and as the
Court has explained since it decided Dover, the Georgia notice
principle regarding the statute of limitations is distinguishable from
the law of other states, including Oklahoma.
See Bergin v. Mentor
Worldwide, LLC, No. 4:13-cv-135, 2016 WL 3049491, at *1 (M.D. Ga. May
27, 2016).

12

facts is not sufficient to prevent the running of the statute;
but when there is something more than mere failure to disclose,
when there is some actual artifice or some affirmative act of
concealment, or some misrepresentation which induces the other
party to inaction, or to forgo inquiry, the guilty party may not
cover up the harm he has thus wrought by aid of the statute of
limitations.’”
Shoemaker,

Id.

63

P.2d

(quoting
960,

961

Loyal
(Okla.

Protective
1936).

Ins.

“One

Co.

v.

relying

on

fraudulent concealment to toll the statute of limitations must
not only show that he did not know the facts constituting a
cause of action, but that he exercised reasonable diligence to
ascertain said facts.”

Id. (quoting Kansas City Life Ins. v.

Nipper, 51 P.2d 741, 742 (Okla. 1935)).

“‘[I]f the means of

knowledge exist and the circumstances are such as to put a man
of ordinary prudence on inquiry, it will be held that there was
knowledge of what could have been readily ascertained by such
inquiry’ and a plaintiff cannot successfully assert fraudulent
concealment
limitations.”

in

answer

to

the

defense

of

the

statute

of

Id. (quoting Nipper, 51 P.2d at 747).

Here, Plaintiffs contend that Mentor failed to disclose the
true risks of ObTape prior to their implant surgeries.

And Mrs.

Little asserts that Mentor failed to disclose that ObTape had
been withdrawn from the market by the time she was implanted
with it.

But Plaintiffs did not point to any affirmative act of

13

concealment or any misrepresentation by Mentor that induced them
not

to

investigate

injuries.

the

connection

between

ObTape

and

their

Again, by 2006, both Mrs. Little and Winchester knew

or should have known that at least some of their symptoms were
connected to ObTape.

At that point, they had a duty to exercise

reasonable diligence to investigate their potential claims.
they did not.

But

For all of these reasons, Plaintiffs’ claims are

time-barred.
Mr. Little’s loss of consortium claim is derivative of Mrs.
Little’s claims; because her underlying claims fail, his loss of
consortium claim also fails. Laws v. Fisher, 513 P.2d 876, 878
(Okla. 1973).
CONCLUSION
As discussed above, Mentor’s summary judgment motions (ECF
No.

36

in

4:13-cv-244

and

ECF

No.

36

in

4:13-cv-245)

are

granted.

IT IS SO ORDERED, this 15th day of August, 2016.
s/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

14