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
8
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