Cox et al v. Mentor Worldwide LLC et al

Filing 41

ORDER granting 40 Motion for Suggestion of Remand. Ordered by US DISTRICT JUDGE CLAY D LAND on 07/26/2016. (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-355 (Cox)

O R D E R
Plaintiff Emma Cox’s counsel filed a motion to withdraw as
attorney in this action because counsel had a difficult time
communicating with Cox.

The Court denied the motion and ordered

Plaintiff’s counsel to show cause why Cox’s Complaint should not
be dismissed for lack of prosecution.
not respond to the Court’s order.

Plaintiff’s counsel did
Mentor filed a motion to

dismiss for lack of prosecution or, in the alternative, for
suggestion of remand (ECF No. 40 in 4:13-cv-355).
its

motion,

Mentor

pointed

to

an

email

from

In support of
Cox’s

counsel

stating that Cox wishes to continue pursuing the case and does
not want the case to be dismissed.

Mot. to Dismiss Ex. A, Email

from Wayne Collins to Edward Taber, et al. (June 28, 2016), ECF
No. 40-1 in 4:13-cv-355 (“Now, we can communicate with the court
that

the

case

should

not

be

dismissed

per

her

wish.”).

Inexplicably, Cox’s counsel failed to communicate to the Court
that Cox wished to continue pursuing the case.

There is no

indication in the present record that Cox has engaged another

lawyer to represent her; the Court therefore presumes that she
will be pro se if counsel is permitted to withdraw.
Cox filed this action directly in MDL No. 2387, which is
pending in the United States District Court for the Southern
District of West Virginia and involves Coloplast Corp.’s pelvic
support systems.
transferred

the

The Judicial Panel on Multidistrict Litigation
action

to

this

multidistrict

litigation

proceeding, MDL No. 2004, because Cox’s action involves Mentor
ObTape Transobturator Tape.
this

action

are

not

yet

Although pretrial proceedings in
complete

due

to

the

breakdown

of

communication between Cox and her attorneys, the Court finds
that the entire action should be remanded to the Court where
venue is proper.

In her short-form Complaint, Cox stated that

venue would be proper in the Eastern District of Missouri had
the action not been directly filed in MDL No. 2387.
ECF No. 1 in 4:13-cv-355.

Compl. ¶ 5,

Thus, the action should be sent to

the United States District Court for the Eastern District of
Missouri.

That Court, which will ultimately have to preside

over the litigation and potential trial of a complex product
liability case with a pro se plaintiff, is in the best position
to evaluate whether counsel should be permitted to withdraw.
That decision, and all future decisions with regard to this
individual case, should be made by the United States District
Court for the Eastern District of Missouri.

2

For

these

reasons,

the

Court

suggests

that

this

action

should be remanded and sent to the United States District Court
for the Eastern District of Missouri.
brief

chronicle

of

the

coordinated

This Order contains a
proceedings

to

provide

guidance to that court after remand.
I.

Brief Background of the Mentor ObTape MDL
Mentor Worldwide LLC manufactured and sold a polypropylene

mesh

suburethral

Tape,

which

was

incontinence.
cleared

ObTape

sling
used

product
to

called

treat

ObTape

women

with

Transobturator
stress

urinary

The United States Food and Drug Administration
for

sale

in

2003

via

its

510(k)

regulatory

process, and ObTape remained on the market in the United States
until March 2006.
Several years ago, women who had been surgically implanted
with ObTape began filing lawsuits against Mentor, alleging that
they had been injured by ObTape—primarily that they suffered
infections caused by ObTape and that they were injured when
ObTape eroded through their bodily tissues.

In December 2008,

the Judicial Panel on Multidistrict Litigation created MDL No.
2004

and

transferred

seventeen

actions

involving

alleged

injuries resulting from ObTape to this Court for consolidated
and coordinated pretrial proceedings.

See In re Mentor Corp.

ObTape Transobturator Sling Products Liability Litigation, 588
F. Supp. 2d 1374 (J.P.M.L. 2008).

3

After pretrial proceedings

and

a

cases

bellwether
and

transferred

trial

that

approximately
to

this

settled

forty

Court

were

mid-trial,

additional
resolved

the

original

tag-along

through

cases

settlement.

Since then, MDL No. 2004 has grown to include more than 800
additional tag-along cases, and more than 200 cases remain open.
The litigation was divided into separate phases, and cases from
phases IV and V are still pending.

In 2013, the Court tried a

Phase III bellwether case to verdict.

In 2016, the Court tried

a Phase IV-1 bellwether case to verdict.
II.

Overview of Cox’s Case
Cox

States

filed

her

District

Virginia.

The

Complaint

Court

for

Judicial

in
the

Panel

MDL

No.

Southern
on

2387

in

the

District

Multidistrict

of

United
West

Litigation

transferred the action to this Court for consolidated pretrial
proceedings.

Cox’s case was designated as a Phase IV-6 case,

with the following deadlines:
Task
Serve Plaintiff Fact Sheet and Executed Medical
Authorization; provide Mentor with copies of
all medical records in plaintiffs’ counsel’s
possession
Serve Defendant Fact Sheet
Complete Plaintiff-Specific Fact Discovery
Serve Plaintiff’s Expert Disclosures
Serve Defendant’s Expert Disclosures; File
Summary Judgment Motions and case-dispositive
Daubert Motions
Responses to Summary Judgment Motions
Replies to Summary Judgment Motions

4

Deadline
April 4, 2016

May 2, 2016
June 13, 2016
June 27, 2016
July 25, 2016

August 8, 2016
August 15, 2016

Mentor represents that Cox has not complied with any of her
discovery obligations, but it is not clear from the present
record

whether

representing
obligations.

Cox’s

Cox,

counsel,

adequately

which
informed

seeks

to

withdraw

Cox

of

her

from

discovery

Cox’s counsel did not seek an extension of any

deadlines.
CONCLUSION
As discussed above, the Court suggests that this case be
remanded and sent to the United States District Court for the
Eastern District of Missouri.

The Clerk of the Court shall

provide a copy of this Order to the Clerk of the Judicial Panel
on Multidistrict Litigation, and Cox’s counsel shall send a copy
to Cox.

IT IS SO ORDERED, this 26th day of July, 2016.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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