Stewart v. Mentor Corporation et al

Filing 40

ORDER granting 37 Motion for Partial Summary Judgment. Ordered by US DISTRICT JUDGE CLAY D LAND on 09/02/2016. (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-345 (Stewart)

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

Paula Stewart was implanted with ObTape and asserts that she
suffered injuries caused by ObTape.
liability

action

against

Mentor,

Stewart brought a product
contending

that

ObTape

had

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

her

Stewart also asserts that Mentor did not adequately
physicians

about

the

risks

associated

with

ObTape.

Mentor seeks summary judgment on several of Stewart’s claims.
For

the

reasons

set

forth

below,

Mentor’s

partial

summary

judgment motion (ECF No. 37 in 4:13-cv-345) 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

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
Stewart developed symptoms of stress urinary incontinence
and discussed her treatment options with Dr. Christopher Minott.
On August 17, 2004, Dr. Minott implanted Stewart with ObTape.
Before the procedure, Dr. Minott discussed ObTape with Stewart,
and Stewart reviewed a Mentor ObTape brochure with Dr. Minott.
The brochure discusses serious complications that may occur with
ObTape and states that the patient’s doctor should discuss these
matters with the patient.
38-3.

Stewart Dep. 202:14-203:6, ECF No.

Based on her discussion with Dr. Minott, Stewart was

under the impression that any complications, such as infections
and pain, would occur during the recovery period; she did not
understand that these complications could occur after that.
at 206:9-207:9.

Id.

Stewart was also under the impression based on

her discussion with Dr. Minott and her review of the brochure
that a revision surgery might be necessary, but only to tighten

2

or loosen the sling—not in the event of an erosion.
203:24.

Id. 202:19-

Stewart testified that if Dr. Minott or the brochure

had informed her of certain risks of ObTape—such as the risk of
long-term painful intercourse and the risk of additional surgery
years after the initial implant—she would not have undergone the
ObTape procedure.
Stewart’s incontinence improved for a while but recurred in
2006.

Stewart

asserts

that

she

suffered

adverse

symptoms

related to ObTape, including pelvic pain and dyspareunia.

In

2008 and 2013, Stewart underwent procedures to remove portions
of her ObTape, although she did not realize in 2008 that some of
her ObTape had been removed.

Stewart is a Nevada resident whose

ObTape-related medical treatment occurred in Nevada.
Stewart asserts claims for strict liability (design defect,
manufacturing defect, and failure to warn); negligence; breach
of

express

fraud;

warranty;

constructive

misrepresentation.
strict

liability,

breach
fraud;

of
and

implied

warranty;

negligent

and

common

law

intentional

Mentor seeks summary judgment on Stewart’s
fraud,

and

misrepresentation

claims

to

the

extent that they are based on Stewart’s allegation that Mentor
did not provide adequate or truthful warnings regarding ObTape.1
1

Stewart contends that her fraud and misrepresentation claims are
different from her strict liability - failure to warn claim and that
Mentor only seeks summary judgment on the strict liability claim.
While these claims do have some different elements, Mentor’s present
argument is that Stewart cannot establish causation on any of these

3

Mentor also seeks summary judgment on Stewart’s warranty claims.
Stewart

does

claims,

so

claims.

not

Mentor

contest
is

summary

entitled

to

judgment
summary

on

her

judgment

warranty
on

those

The only issue remaining is whether Stewart presented

enough evidence to create a genuine fact dispute on her failure
to warn claims.
DISCUSSION
On July 12, 2013, Stewart served Mentor with a Complaint
captioned in the Hennepin County District Court of the State of
Minnesota.

Mentor

removed

the

action

to

the

United

States

District Court for the District of Minnesota. The case was later
transferred to this Court as part of a multidistrict litigation
proceeding regarding ObTape.

The parties agree for purposes of

summary judgment that Minnesota law applies to Stewart’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).
Stewart

asserts

that

Mentor

did

not

provide

Dr.

Minott

accurate information with regard to ObTape’s risks, including
the true risks of complications like erosion, infection, and
inadequate tissue ingrowth.

“Under Minnesota law, a plaintiff

claims.
And causation for these claims rests on the same basic
question: did Mentor’s fraud, misrepresentations, or failure to warn
regarding the true risks of ObTape cause Stewart’s injuries?

4

claiming

a

failure

to

warn

must

show

that

the

lack

of

an

adequate warning caused plaintiff[’]s injuries.” Prairie v. Mio
Mech. Corp., No. 27-CV-12-14077, 2013 WL 3869264, at *6 (Minn.
Dist. Ct. June 25, 2013) (citing Tuttle v. Lorillard Tobacco
Co.,

377

causation,

F.3d
a

917,

924

plaintiff

(8th

must

Cir.

show

2004)).

that

a

“To

warning

establish
would

have

caused him to act in a way that would have avoided the injury.”
Id.
her

Here, Stewart contends that Mentor, intending to defraud
and

induce

her

misrepresentations

to

to

undergo

Dr.

Minott

the

ObTape

that

procedure,

induced

Dr.

made

Minott

to

recommend ObTape to Stewart.
Stewart’s implanting physician, Dr. Minott, died before he
could testify in this action, and there is no direct evidence
that

different

treated

warnings

Stewart.

would

Stewart

have

changed

nonetheless

how

contends

Dr.

that

Minott
she

can

establish causation because Minnesota courts apply a “heeding
presumption” – “a rebuttable presumption that the injured person
would have heeded an adequate warning, had one been provided.”
Prairie,

2013

WL

3869264,

at

*6.

The

Court

previously

considered this issue in Bromley v. Mentor Corp., Case No. 4:13cv-17, 2015 WL 7313394 (M.D. Ga. Nov. 19, 2015).

The Court

noted that “in Prairie, the Minnesota trial court presumed that
a window washer who died after falling from the defendant’s roof
rigger

platform

product

would

5

have

heeded

an

adequate

instruction regarding the proper way to secure the platform had
one been given.”
*6).

Id. at *6 (citing Prairie, 2013 WL 3869264 at

But the Court found that “all Prairie allows the Court to

presume is that Plaintiffs’ physicians would have paid attention
to an additional warning about the risks of ObTape.”

Id.

“In

other

that

the

words,

physicians

Prairie

would

allows

have

the

considered

Court
the

to

presume

infection

and

erosion

rates—among other considerations—in determining which product to
select for their patients.”

Id.

Prairie did “not, however,

permit the Court to speculate about how the physicians would
have weighed the additional warnings.”

Id.

Stewart did not point the Court to any authority suggesting
that the Minnesota courts have expanded the heeding presumption
since the Court decided this issue in Bromley.

The Court again

concludes that it cannot apply the heeding presumption here,
where there is no evidence of how Dr. Minott would have weighed
the

additional

warnings

Mentor provided them.

or

the

true

complication

rates

had

Thus, Stewart cannot establish causation

for her failure to warn, fraud, and misrepresentation claims
under the heeding presumption.
Stewart points out that Mentor provided some information
about

ObTape

directly

to

consumers,

including

her,

via

a

brochure that provides a short description of ObTape’s potential
complications

and

states

that

6

the

patient’s

doctor

should

discuss these matters with the patient.

Stewart argues that the

brochure did not adequately warn her about ObTape’s true risks.
But the record here reveals that Stewart did not rely solely on
the

brochure

in

deciding

to

undergo

the

ObTape

procedure.

Stewart reviewed the brochure and discussed it with Dr. Minott;
her

impressions

about

ObTape

were

based

on

Dr.

Minott’s

explanation of the brochure and his description of the procedure
and potential complications.

As discussed above, there is no

evidence of how Dr. Minott would have weighed the additional
warnings
them.

or

the

true

complication

rates

had

Mentor

provided

There is also no evidence of how Dr. Minott might have

approached his doctor-patient discussion of the brochure had he
been

given

additional

warnings

about

ObTape.

Stewart

thus

cannot establish causation for her failure to warn, fraud, and
misrepresentation claims based on the brochure.
CONCLUSION
For the reasons set forth above, the Court concludes that
Stewart has not presented enough evidence to establish a genuine
fact dispute on causation for her failure to warn, fraud, and
misrepresentation claims.

Mentor’s Motion for Partial Summary

Judgment

4:13-cv-345)

(ECF

No.

37

in

is

therefore

granted.

Mentor is entitled to judgment as a matter of law on Stewart’s
strict

liability,

fraud,

and

misrepresentation

claims

to

the

extent that they are based on Stewart’s contention that Mentor

7

did not provide adequate or truthful warnings regarding ObTape.
Mentor

is

Stewart’s

also

entitled

warranty

to

judgment

claims.

as

a

Stewart’s

matter

of

design

law

on

defect,

manufacturing defect, and negligence claims remain pending for
trial.
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 2nd 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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