JESTER 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
IN RE MENTOR CORP. OBTAPE
TRANSOBTURATOR SLING PRODUCTS
LIABILITY LITIGATION

* MDL Docket No. 2004
4:08-MD-2004 (CDL)
*
Case No.
* 4:13-cv-246 (Jester)

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 Mary

Jester was implanted with ObTape and asserts that she suffered
injuries caused by ObTape.

Jester brought a product liability

action against Mentor, contending that ObTape had design and/or
manufacturing

defects

that

proximately

caused

her

injuries.

Jester also asserts that Mentor did not adequately warn her
physicians about the risks associated with ObTape.

Mentor seeks

summary judgment on all of Jester’s claims, contending that they
are time-barred under Illinois law.

For the reasons set forth

below, the Court agrees, and Mentor’s summary judgment motion
(ECF No. 36 in 4:13-cv-246) 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
Jester
symptoms

visited

of

Dr.

stress

Jerrold

urinary

Seckler

in

2004

incontinence.

reporting

Dr.

Seckler

recommended a sling implant procedure, and he implanted Jester
with ObTape on November 10, 2004.

In December 2005, Jester

returned to Dr. Seckler complaining of vaginal discharge and
irritation.

Dr. Seckler diagnosed Jester with an erosion of her

ObTape, and he recommended removal of the exposed ObTape.

Dr.

Seckler excised a portion of Jester’s ObTape on December 8,
2005, but Jester’s symptoms persisted.

Dr. Seckler performed

two additional revision surgeries—one in March 2006 and one in
January
surgeries

2007.
was

Jester
to

irritation symptoms.
bleeding

and

understood

attempt

to

that

the

alleviate

purpose

her

of

the

discharge

and

After the third revision surgery, Jester’s

discharge

symptoms

2

gradually

went

away.

When

Jester’s

doctor

recommended

a

replacement

sling,

Jester

said

“not on your life” and that she “would never go down that road
again.”

Jester Dep. 92:12-19, 146:22-147:3, ECF No. 36-9.

Jester asserts that she did not suspect that her problems
might

be

related

to

a

defect

in

ObTape

until

she

saw

a

television commercial regarding mesh implant complications in
2012.
Jester

asserts

(design

defect,

breach

of

fraudulent
negligent

claims

for

manufacturing

express

strict

defect,

and

failure

breach

of

implied

warranty,

misrepresentation,
misrepresentation.

negligence,

fraudulent
Jester

liability
to

warn),

warranty,

concealment,

concedes

that

Mentor

and
is

entitled to summary judgment on her warranty claims, and summary
judgment is therefore granted as to those claims.
DISCUSSION
Jester 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.”

Order Regarding Direct Filing

§ II(E), ECF No. 446 in 4:08-md-2004.

Jester lives in Illinois,

and all of her ObTape-related treatment took place in Illinois.
The parties agree that Illinois law applies to Jester’s claims.

3

Illinois has a two-year statute of limitations for personal
injury actions.
rule’

in

735 Ill. Comp. Stat. 5/13–202.

Illinois

delays

the

commencement

“The ‘discovery

of

the

applicable

statute of limitations until the plaintiff knows or reasonably
should know that he has been injured and that his injury was
wrongfully caused.”

Curtis v. Mentor Worldwide, LLC, 543 F.

App’x 901, 903 (11th Cir. 2013) (applying Illinois law) (citing
Hermitage Corp. v. Contractors Adjustment Co., 651 N.E.2d 1132,
1137 (Ill. 1995).

“The phrase ‘wrongfully caused’ does not mean

knowledge

specific

of

a

defendant’s

negligent

knowledge of the existence of a cause of action.”

conduct

or

Id. (quoting

Castello v. Kalis, 816 N.E.2d 782, 789 (Ill. App. Ct. 2004)).
“Instead, it refers to when an ‘injured party becomes possessed
of sufficient information concerning his injury and its cause to
put

a

reasonable

actionable

conduct

person
is

on

inquiry

involved.’”

to

Id.

determine

(quoting

whether

Castello,

816

N.E.2d at 789).
Here, by January 2007, Jester had undergone three excision
procedures.
went

away.

excision
sling.

After the third procedure, her symptoms gradually
And

after

procedures,

her

Jester

experience
adamantly

with

ObTape

declined

a

and

the

replacement

Thus, the Court finds that Jester knew by January 2007

at the latest that she had suffered an injury related to ObTape.

4

Jester argues, however, that the statute of limitations did
not

run

until

she

became

aware

injuries and a defect in ObTape.

of

a

connection

between

her

In support of this assertion,

Jester highlights Castello, a medical malpractice case, which
states:

“[t]he

limitations

period

begins

to

run

when

the

plaintiff becomes aware that the cause of his problem stems from
another’s negligence and not from natural causes.”

Castello,

816 N.E.2d at 789 (alteration in original) (quoting Saunders v.
Klungboonkrong, 501 N.E.2d 882, 885 (Ill. App. Ct. 1986)).

But

Castello also emphasized that the statute begins to run when an
“injured

party

becomes

possessed

of

sufficient

information

concerning his injury and its cause to put a reasonable person
on inquiry to determine whether actionable conduct is involved.”
Id.

“The

reasonably

law

is

should

well-settled
know

both

of

that

once

his

injury

a

party

and

knows

that

it

or
was

wrongfully caused, ‘the burden is upon the injured person to
inquire further as to the existence of a cause of action.’”

Id.

(quoting Witherell v. Weimer, 421 N.E.2d 869 (Ill. 1981)).
Again, Jester knew by January 2007 at the latest that she
had suffered symptoms that required three excision procedures,
and Jester herself was leery of a sling replacement after that
experience.

At that time, a person of common knowledge and

experience in Jester’s position would have been on notice that
her injuries may be related to ObTape, and she would have been

5

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.

See Curtis, 543

F. App’x at 904 (stating that an ObTape plaintiff “was obligated
to

begin

her

inquiry

as

to

who

manufactured

her

sling

and

whether her complications were due to a problem with the surgery
or a defective sling” after she suffered injuries that required
removal of her ObTape).

That is enough to trigger the statute

of limitations under Illinois law.1
Jester also argues that the statute of limitations should
be tolled due to fraudulent concealment under 735 Ill. Comp.
Stat. 5/13–215.

That statute states: “If a person liable to an

action fraudulently conceals the cause of such action from the
knowledge of the person entitled thereto, the action may be
commenced at any time within 5 years after the person entitled
to bring the same discovers that he or she has such cause of
action,

and

not

afterwards.”

To

establish

fraudulent

concealment, a plaintiff must “demonstrate that the defendant

1

Jester argues that a reasonable investigation did not reveal that she
had a potential claim. But Jester did not point to evidence that she
actually undertook a reasonable investigation.
In response to
Mentor’s statement of material facts, Jester denied, without citing
any evidence, Mentor’s assertion that she had never investigated her
symptoms beyond what her doctors told her.
Jester did not, however,
point to evidence to dispute her own testimony that she did not
investigate her claims. Jester Dep. 12:19-13:5 (stating that she did
not do any internet research about her conditions); id. at 136:17-20
(stating that she did not do any further investigation based on
conversations with her doctors).

6

made misrepresentations or performed acts which were known to be
false, with the intent to deceive the plaintiff, and upon which
the plaintiff detrimentally relied.”
Suburban

Hosp.,

845

N.E.2d

792,

Cangemi v. Advocate S.

804

(Ill.

App.

Ct.

2006)

(quoting Foster v. Plaut, 625 N.E.2d 198, 203 (Ill. App. Ct.
1993)).

“In addition, fraudulent misrepresentations which form

the basis of the cause of action do not constitute fraudulent
concealment under section 13–215 in the absence of a showing
that

the

misrepresentations

action.”

tended

to

conceal

the

cause

Id. (quoting Foster, 625 N.E.2d at 203).

of

And the

plaintiff seeking to establish fraudulent concealment must “show
affirmative

acts

by

the

defendant

which

were

designed

to

prevent, and in fact did prevent, the discovery of the claim.”
Foster, 625 N.E.2d at 203.

“Mere silence of the defendant and

the mere failure on the part of the plaintiff to learn of a
cause of action do not amount to fraudulent concealment.”

Id.

Jester’s fraudulent concealment argument is based on her
assertion that Mentor did not adequately disclose the risks of
ObTape prior to Jester’s implant surgery, that Mentor continued
to market ObTape without disclosing certain complication rates
that Mentor had allegedly discovered, and that Mentor withdrew
ObTape from the market without telling Jester’s physicians.
other

words,

she

contends

that

Mentor

initially

In

provided

inadequate warnings regarding ObTape and then did not supplement

7

its

warnings.

But

Jester

did

not

point

to

evidence

of

an

affirmative act of concealment that kept Jester from learning
that she had been injured or that her injury was connected to
ObTape.

Fraudulent concealment does not apply here.

For the reasons set forth above, Jester’s personal injury
claims accrued in January 2007 at the latest.
her action until more than six years later.

She did not file

Her claims are thus

time-barred under Illinois law.
CONCLUSION
As discussed above, Mentor’s summary judgment motion (ECF
No. 36 in 4:13-cv-246) 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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