Alvarado v. Mentor Corporation et al
ORDER granting 39 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE CLAY D LAND on 09/13/2016. (CCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
IN RE MENTOR CORP. OBTAPE
TRANSOBTURATOR SLING PRODUCTS
MDL Docket No. 2004
O R D E R
sling product called ObTape Transobturator Tape, which was used
Frances Alvarado was implanted with ObTape and asserts that she
suffered injuries caused by ObTape.
Alvarado brought a product
design and/or manufacturing defects that proximately caused her
Alvarado also asserts that Mentor did not adequately
contending that they are time-barred under Minnesota law.
the reasons set forth below, Mentor’s summary judgment motion
(ECF No. 39 in 4:13-cv-370) 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
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.
dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.
Alvarado suffered from stress urinary incontinence.
underwent a transvaginal sling procedure at some point prior to
The parties did not point to any evidence on
incontinence returned, and she sought treatment from Dr. Scott
Dr. Yun examined Alvarado, found that her bladder was
normal with no foreign materials inside, and recommended that
Alvarado undergo an ObTape implant procedure.
Dr. Yun implanted
Alvarado with ObTape on February 28, 2004.
The doctor observed exposed mesh, told Alvarado what he
saw, and referred Alvarado to Dr. Stuart Feldman, a urologist.
Alvarado visited Dr. Feldman on December 27, 2006 complaining of
the exposed mesh and of vaginal discharge.
Dr. Feldman observed
exposed ObTape in Alvarado’s vagina, explained that Alvarado’s
ObTape had eroded, and told Alvarado that the erosion was the
cause of her vaginal discharge.
Dr. Feldman also may have told
ObTape, and he performed an excision procedure on February 15,
Alvarado had another excision procedure performed by a
different doctor in January 2008.
Alvarado lived in California
when she had her ObTape implant surgery, and all of her ObTaperelated medical treatment occurred in California.
Alvarado asserts claims for strict liability; negligence;
breach of express warranty; breach of implied warranty; common
Mentor contends that all of these claims are
Alvarado does not contest summary judgment on her
strict liability or warranty claims, so Mentor is entitled to
summary judgment on those claims.
The only issue remaining is
claims are time-barred.
On July 15, 2013, Alvarado served Mentor with a Complaint
captioned in the Hennepin County District Court of the State of
Mentor removed this 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
See Cline v. Mentor Corp., No. 4:10-cv-5060, 2013 WL
plaintiffs who brought their actions in Minnesota).
Mentor contends that all of Alvarado’s claims are timebarred under Minnesota law.
Again, Alvarado does not contest
summary judgment on her strict liability or warranty claims, so
Mentor is entitled to summary judgment on those claims.
only issue remaining is whether Alvarado’s negligence, fraud,
and misrepresentation claims are time-barred.
Alvarado’s Negligence Claim
The statute of limitations for a negligence claim is six
years. Minn. Stat. § 541.05 subd. 1(5) (establishing six-year
contract or strict liability).
Under Minnesota law, “a claim
product accrues when two elements are present: ‘(1) a cognizable
evidence of a causal connection between the injury or disease
and the defendant’s product, act, or omission.’”
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).
Thus, as the Court has concluded on
action accrues under Minnesota law when the plaintiff learns
that she has an injury caused by a product.
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 to circumvent the
statute of limitations by waiting for a more serious injury to
develop from the same cause.”)).
For example, in Klempka, the
pelvic inflammatory disease, which her doctor said was caused by
the plaintiff’s intrauterine device. Klempka, 953 F.2d at 169.
concluded that the plaintiff’s cause of action accrued when she
device. Id. at 170.
Here, Alvarado argues that she did not understand that her
erosions were caused by ObTape or related to ObTape and that she
could not have made this connection until a doctor told her in
March 2008 that ObTape was a bad product.
But Alvarado was
informed in December 2006 that she had an erosion of her ObTape,
And in February 2007, Alvarado’s doctor excised her
This information was enough to put Alvarado on
excision procedure (presumably, if she had asked her doctor what
the word “erosion” meant, he would have told her).
February 2007 at the latest, Alvarado should have known that she
In other words, she was aware (or should have been
aware) of an injury and its likely cause in February 2007.2
is when her claims accrued.
She did not file her complaint
until more than six years later, in July 2013.3
Alvarado’s reliance on Hildebrandt v. Allied Corp., 839 F.2d 396 (8th
Cir. 1987), Tuttle v. Lorillard Tobacco Co., 377 F.3d 917 (8th Cir.
2004), and Huggins v. Stryker Corp., 932 F. Supp. 2d 972 (D. Minn.
(distinguishing these three cases).
Neither party pointed to any evidence that Alvarado’s complications
were caused by her prior sling or that her doctors suggested that the
prior sling was to blame for her injuries.
Alvarado did not explicitly argue that the statute of limitations
should be tolled by fraudulent concealment. Alvarado does assert that
Mentor took “extraordinary measures” to conceal problems with ObTape.
Alvarado’s Fraud and Misrepresentation Claims
The statute of limitations for fraud claims is six years.
Minn. Stat. § 541.05 subd. 1(6).
A fraud cause of action “shall
aggrieved party of the facts constituting the fraud.”
“the facts constituting fraud are deemed to have been discovered
when, with reasonable diligence, they could and ought to have
Veldhuizen v. A.O. Smith Corp., 839 F. Supp.
669, 674 (D. Minn. 1993) (quoting Bustad v. Bustad, 116 N.W.2d
552, 555 (Minn. 1962)). “The failure to actually discover the
inconsistent with reasonable diligence.” Id.; accord Blegen v.
Monarch Life Ins. Co., 365 N.W.2d 356, 357-58 (Minn. Ct. App.
1985). Plaintiffs “carry the burden of proving that they did not
discover the facts constituting fraud within six years before
commencement of the action.” Veldhuizen, 839 F. Supp. 674. “They
Pl.’s Resp. to Def.’s Mot. for Summ. J. 18, ECF No. 40 in 4:13-cv-370.
Even if Alvarado did assert a fraudulent concealment argument, a
statute of limitations may only “be tolled if the cause of action is
fraudulently concealed by the defendant.” Haberle v. Buchwald, 480
N.W.2d 351, 357 (Minn. Ct. App. 1992). “To establish fraudulent
concealment, a plaintiff must prove there was an affirmative act or
statement which concealed a potential cause of action, that the
statement was known to be false or was made in reckless disregard of
its truth or falsity, and that the concealment could not have been
discovered by reasonable diligence.” Id.
Alvarado did not point to
any evidence that some affirmative act or statement by Mentor
concealed Alvarado’s claims by preventing her from connecting her
injury to ObTape.
must also show that they could not have discovered the fraud
through the exercise of reasonable diligence.” Id.
discussed above, Alvarado did not file her complaint within six
years after learning of a connection between ObTape and her
connection between ObTape and at least some of her injuries by
the time her doctor diagnosed her with a mesh erosion and told
reasonable person in that situation would take some action to
follow up on the cause of her injuries and try to find out
whether the injuries were caused by a problem with ObTape, a
problem with the implant surgery, or some other problem—such as
Alvarado pointed to no evidence that she
claims even though she knew (or had enough information to know)
there was a connection between her injuries and the ObTape.
Again, Alvarado knew by February 2007 at the latest that
she had an erosion that required an excision procedure.
evidence that she followed up with a doctor, sought medical
records, or otherwise attempted to investigate the connection
between her injury and the ObTape.
Alvarado also did not point
to evidence that she could not have discovered enough facts to
support her fraud and misrepresentation claims had she started
investigating the connection she made (or had enough information
to make) between ObTape and her injuries within a reasonable
time after she discovered the connection. For these reasons, the
Court finds that Alvarado’s fraud and misrepresentation claims
For the reasons set forth above, Alvarado’s claims are all
time-barred under Minnesota law.
Mentor’s Motion for Summary
Judgment (ECF No. 39 in 4:13-cv-370) is therefore granted.
IT IS SO ORDERED, this 13th 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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