Chavez-Rubio 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-373 (Chavez-Rubio)

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 Roxanne Chavez-

Rubio was implanted with ObTape and asserts that she suffered
injuries

caused

by

ObTape.

Chavez-Rubio

brought

a

product

liability action against Mentor, contending that ObTape had design
and/or manufacturing defects that proximately caused her injuries.
Chavez-Rubio also asserts that Mentor did not adequately warn her
physicians about the risks associated with ObTape.
summary

judgment

on

Chavez-Rubio’s

breach

contending that they are time-barred.

of

Mentor seeks

warranty

claims,

Mentor’s partial summary

judgment motion (ECF No. 37 in 4:13-cv-373) 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.”
P. 56(a).

Fed. R. Civ.

In determining whether a genuine dispute of material

fact exists to defeat a motion for summary judgment, the evidence

is

viewed

summary

in

the

judgment,

light

drawing

opposing party’s favor.
242,

255

most

(1986).

favorable

all

to

the

justifiable

party

opposing

inferences

in

the

Anderson v. Liberty Lobby, Inc., 477 U.S.

A fact

is

material

necessary to the outcome of the suit.

if

it

is

Id. at 248.

relevant or
A factual

dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.

Id.

FACTUAL BACKGROUND
On October 5, 2004, Dr. Marc Nesi implanted Chavez-Rubio with
ObTape to treat her stress urinary incontinence.

In 2013, Chavez-

Rubio “started having bad problems” that she attributed to ObTape.
Chavez-Rubio Dep. 12:7-11, ECF No. 38-4.

At that time, she “went

to the doctor and found out that the mesh had fell through.”
Chavez-Rubio

is

a

North

Carolina

resident

whose

Id.

ObTape-related

treatment took place in North Carolina.
Chavez-Rubio

asserts

claims

for

strict

liability

(design

defect, manufacturing defect, and failure to warn); negligence;
breach of express warranty; breach of implied warranty; common law
fraud;

constructive

misrepresentation.

fraud;

and

negligent

and

intentional

Mentor seeks summary judgment only on Chavez-

Rubio’s warranty claims.
DISCUSSION
On July 16, 2013, Chavez-Rubio served Mentor with a Complaint
captioned in the Hennepin County District Court of the State of

2

Minnesota.

Mentor

removed

this

action

to

District Court for the District of Minnesota.

the

United

States

The case was later

transferred to this Court as part of a multidistrict litigation
proceeding regarding ObTape.
that

The parties agree for purposes of

summary

judgment

Minnesota

law

applies

to

Chavez-Rubio’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).
Under Minnesota law, a breach of warranty action “must be
commenced

within

four

years

after

accrued.”

Minn. Stat. § 336.2-725(1).

the

cause

of

action

has

“A cause of action accrues

when the breach occurs, regardless of the aggrieved party’s lack
of knowledge of the breach.”

Minn. Stat. Ann. § 336.2-725(2).

“A

breach of warranty occurs when tender of delivery is 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 when the breach is or
should have been discovered.”

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

several years later).

3

axle

and

rotor

plate

failed

Chavez-Rubio does not dispute that her ObTape was delivered
on October 5, 2004 when it was implanted into her body.

Chavez-

Rubio also does not dispute that she did not file her action
within four years after delivery of her ObTape.

Chavez-Rubio

appears to argue that Minnesota’s discovery rule applicable to her
tort claims should likewise apply to her warranty claims.

But

Chavez-Rubio did not point to any evidence that ObTape’s warranty
explicitly extended to future performance, and she did not point
to any Minnesota authority departing from the clear language of
Minn. Stat. § 336.2-725(2) and holding the discovery rule applies
to

warranty

claims

even

in

the

absence

explicitly extends to future performance.

of

a

warranty

that

Thus, Chavez-Rubio’s

warranty claims accrued on October 5, 2004.
Chavez-Rubio argues that even if the discovery rule does not
save

her

warranty

claims,

the

statute

of

limitations

for

warranty claims should be tolled by fraudulent concealment.

her

Under

Minnesota law, “[a] statute of limitations may 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

4

discovered

by

reasonable

diligence.”

Id.

Here, though Chavez-Rubio may not have been

aware of any injury when her ObTape was implanted, she did not
point to any evidence that some affirmative act or statement by
Mentor

concealed

her

breach

of

warranty

claims.

For

these

reasons, fraudulent concealment does not apply to Chavez-Rubio’s
warranty claims.
CONCLUSION
For the reasons set forth above, the Court concludes that
Chavez-Rubio’s warranty claims are time-barred.

Mentor’s Motion

for

4:13-cv-373)

Partial

Summary

therefore granted.
law

on

Judgment

(ECF

No.

37

in

is

Mentor is entitled to judgment as a matter of

Chavez-Rubio’s

warranty

claims.

All

of

Chavez-Rubio’s

other claims remain pending for trial.1
This action is ready for trial.

Within seven days of the

date of this Order, the parties 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

1

As a practical matter, Chavez-Rubio’s breach of warranty claims appear
to be nearly identical to her strict liability failure to warn claim and
to her various fraud and misrepresentation claims. Mentor did not move
for summary judgment on those claims.

5