Brown et al v. Mentor Corporation et al

Filing 43

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
COLUMBUS DIVISION
IN RE MENTOR CORP.

* MDL Docket No. 2004
4:08-MD-2004 (CDL)
*
Case No.
* 4:13-cv-323 (Brown)

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

Shari

women

Brown

was

with

stress

implanted

urinary
with

ObTape

suffered injuries caused by ObTape.
liability

action

against

incontinence.

Mentor,

and

Plaintiff

asserts

that

she

Brown brought a product

contending

that

ObTape

had

design and/or manufacturing defects that proximately caused her
injuries.
warn

her

Brown also asserts that Mentor did not adequately
physicians

about

the

risks

associated

with

ObTape.

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.”

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.
factual

dispute

is

genuine

if

the

Id.

evidence

at 248.

would

allow

A
a

reasonable jury to return a verdict for the nonmoving party.
Id.
Under the Court’s local rules, a party moving for summary
judgment

must

attach

to

its

motion

“a

separate

and

concise

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.”

Id.

“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
inappropriate.”
material facts.
undisputed

Id.

Mentor submitted a statement of undisputed

Brown did not respond to that statement of

material

facts.

Therefore,

Mentor’s

statement

of

material facts is deemed admitted pursuant to Local Rule 56.

2

The Court reviewed Mentor’s citations to the record to confirm
that they support Mentor’s fact statements.
FACTUAL BACKGROUND
Dr. Bruce Woodworth implanted Brown with ObTape on February
8,

2005.

In

November

2007,

Brown

saw

Dr.

Eric

Wood,

who

diagnosed Brown with a vaginal erosion of her ObTape and told
her that the eroded portion of her ObTape needed to be removed.
Dr.

Wood

removed

November 28, 2007.

the

eroded

portion

of

Brown’s

ObTape

on

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
for

pretrial

proceedings.

Brown

asserts

claims

for

strict

liability, negligence, breach of warranty, and failure to warn.
DISCUSSION
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

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brought under a strict liability theory.

Mentor asserts, and

Brown does not dispute, that Minnesota law applies to Brown’s
claims.

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).
I.

Strict Liability Claims
The statute of limitations for a strict liability claim,

including

a

failure

to

warn

claim

liability theory, is four years.

brought

under

a

strict

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
product

shall

be

commenced

within

four

years.”).

Under

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
injury

or

omission.’”

disease

and

the

defendant’s

product,

act,

or

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).
the

Court

has

concluded

on

several

occasions,

a

Thus, as
plaintiff’s

strict liability cause of action accrues under Minnesota law
when the plaintiff learns that she has an injury that is related

4

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
not

permitted

waiting

for

a

cause.”)).
injuries

to

more

For

and

circumvent

was

serious

example,

statute

injury

in

diagnosed

the

to

Klempka,
with

of

limitations

develop
the

chronic

from

plaintiff
pelvic

the

by

same

suffered

inflammatory

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
the

intrauterine

device

caused

her

infertility.

Id.

Applying

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.
Here,

Brown

knew

in

November

2007

that

her

ObTape

had

eroded and that the eroded portion of her ObTape had to be
removed.

She also connected her discharge symptoms to ObTape at

that point.

Thus, Brown had enough information to connect her

injuries to ObTape by November 2007.

She did not file her

complaint

later,

until

more

than

five

years

in

July

2013.

Brown’s strict liability claims—including any failure to warn

5

claim

brought

under

a

strict

liability

theory—are

therefore

time-barred.
II.

Breach of Warranty Claims
Under Minnesota law, a breach of warranty action “must be

commenced

within

accrued.”

Minn.

accrues

when

four

years

Stat.

the

breach

§

after

the

cause

of

“A

cause

336.2-725(1).
occurs,

regardless

party’s lack of knowledge of the breach.”
§ 336.2-725(2).
delivery

is

of

action

the

of

has

action

aggrieved

Minn. Stat. Ann.

“A breach of warranty occurs when tender of

made,

except

that

where

a

warranty

explicitly

extends to future performance of the goods and discovery of the
breach must await the time of such performance the cause of
action

accrues

discovered.”

when

the

breach

is

or

should

have

been

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
later).
Brown does not dispute that her ObTape was delivered on
February 8, 2005 when it was implanted into her body.

Brown

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

6

future performance.
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.
CONCLUSION
For the reasons set forth above, Mentor’s partial summary
judgment motion (ECF No.

40 in 4:13-cv-323) is granted.

Only

Brown’s negligence claim, including any failure to warn claim
brought under a negligence theory, remains pending.
This action is now ready for trial.
the

date

of

this

Order,

the

parties

Within seven days of

shall

notify

the

Court

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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