Brown et al v. Mentor Corporation et al
ORDER granting 40 Motion for Partial Summary Judgment. Ordered by US DISTRICT JUDGE CLAY D LAND on 09/20/2016. (CCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
IN RE MENTOR CORP.
* MDL Docket No. 2004
* 4:13-cv-323 (Brown)
TRANSOBTURATOR SLING PRODUCTS
O R D E R
sling product called ObTape Transobturator Tape, which was used
suffered injuries caused by ObTape.
Brown brought a product
design and/or manufacturing defects that proximately caused her
Brown also asserts that Mentor did not adequately
Mentor argues that several of Brown’s claims are time-barred
under Minnesota law.
Brown did not respond to Mentor’s partial
summary judgment motion.
As discussed below, Mentor’s partial
summary judgment motion (ECF No. 40 in 4:13-cv-323) 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 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.
242, 255 (1986).
Liberty Lobby, Inc.,
A fact is material if it is relevant
or necessary to the outcome of the suit.
reasonable jury to return a verdict for the nonmoving party.
Under the Court’s local rules, a party moving for summary
statement of the material facts to which the movant contends
there is no genuine dispute to be tried.”
M.D. Ga. R. 56.
Those facts must be supported by the record.
The respondent to
a summary judgment motion must respond “to each of the movant’s
numbered material facts.”
“All material facts contained in
the movant’s statement which are not specifically controverted
by specific citation to particular parts of materials in the
record shall be deemed to have been admitted, unless otherwise
Mentor submitted a statement of undisputed
Brown did not respond to that statement of
material facts is deemed admitted pursuant to Local Rule 56.
The Court reviewed Mentor’s citations to the record to confirm
that they support Mentor’s fact statements.
Dr. Bruce Woodworth implanted Brown with ObTape on February
diagnosed Brown with a vaginal erosion of her ObTape and told
her that the eroded portion of her ObTape needed to be removed.
November 28, 2007.
At the time, Brown understood that a portion
of her sling had to be removed because it had eroded and was not
doing what it was supposed to do.
After the removal surgery,
the discharge symptoms Brown had experienced resolved, and Brown
attributed her discharge symptoms to ObTape.
Brown is an Ohio resident, and all of her ObTape-related
treatment occurred in Ohio.
Brown filed this action in the
United States District Court for the District of Minnesota on
July 9, 2013, and the Judicial Panel on Multidistrict Litigation
transferred the case to this multidistrict litigation proceeding
liability, negligence, breach of warranty, and failure to warn.
Mentor contends that Brown’s strict liability and breach of
warranty claims are time-barred under Minnesota law and that her
failure to warn claim is also time-barred to the extent it is
brought under a strict liability theory.
Mentor asserts, and
Brown does not dispute, that Minnesota law applies to Brown’s
See Cline v. Mentor, No. 4:10-cv-5060, 2013 WL 286276,
at *7 (M.D. Ga. Jan. 24, 2013) (concluding that Minnesota law
applied to claims of non-Minnesota ObTape plaintiffs who brought
their actions in Minnesota).
Strict Liability Claims
The statute of limitations for a strict liability claim,
liability theory, is four years.
Minn. Stat. § 541.05 subd. 2
(“[A]ny action based on the strict liability of the defendant
and arising from the manufacture, sale, use or consumption of a
Minnesota law, “a claim involving personal injuries allegedly
caused by a defective product accrues when two elements are
present: ‘(1) a cognizable physical manifestation of the disease
or injury, and (2) evidence of a causal connection between the
Klempka v. G.D. Searle & Co., 963 F.2d 168, 170
(8th Cir. 1992) (quoting Hildebrandt v. Allied Corp., 839 F.2d
396, 398 (8th Cir. 1987)) (applying Minnesota law).
strict liability cause of action accrues under Minnesota law
when the plaintiff learns that she has an injury that is related
to a product.
E.g., Watson v. Mentor Worldwide, LLC, No. 4:13-
cv-27, 2016 WL 1574071, at *2 (M.D. Ga. Apr. 19, 2016) (quoting
Klempka, 963 F.2d 168, 170 (8th Cir. 1992) (“A plaintiff who is
aware of both her injury and the likely cause of her injury is
disease, which her doctor said was caused by the plaintiff's
intrauterine device. Klempka, 953 F.2d at 169. Several years
later, the plaintiff was told that she was infertile and that
Minnesota law, the Eighth Circuit concluded that the plaintiff’s
cause of action accrued when she first learned that she had an
injury (chronic pelvic inflammatory disease) that was caused by
the intrauterine device. Id. at 170.
eroded and that the eroded portion of her ObTape had to be
She also connected her discharge symptoms to ObTape at
Thus, Brown had enough information to connect her
injuries to ObTape by November 2007.
She did not file her
Brown’s strict liability claims—including any failure to warn
Breach of Warranty Claims
Under Minnesota law, a breach of warranty action “must be
party’s lack of knowledge of the breach.”
Minn. Stat. Ann.
“A breach of warranty occurs when tender of
extends to future performance of the goods and discovery of the
breach must await the time of such performance the cause of
Id.; cf. Allstate Ins. Co. v. Gen. Motors Corp.,
No. PD 04-12393, 2005 WL 264276, at *4–*5 (Minn. Dist. Ct. Jan.
24, 2005) (concluding that the plaintiff’s breach of warranty
claim accrued when the plaintiff’s car was delivered to him, not
when the car’s rear axle and rotor plate failed several years
Brown does not dispute that her ObTape was delivered on
February 8, 2005 when it was implanted into her body.
also does not dispute that she did not file her action within
four years after delivery of her ObTape.
And she did not point
to any evidence that ObTape’s warranty explicitly extended to
February 8, 2005.
Thus, Brown’s warranty claims accrued on
She did not bring this action within four
years, so her breach of warranty claims are time-barred.
For the reasons set forth above, Mentor’s partial summary
judgment motion (ECF No.
40 in 4:13-cv-323) is granted.
Brown’s negligence claim, including any failure to warn claim
brought under a negligence theory, remains pending.
This action is now ready for trial.
Within seven days of
whether they agree to a Lexecon waiver.
IT IS SO ORDERED, this 20th day of September, 2016.
s/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
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