Hooker v. Mentor Corporation et al
ORDER granting 39 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
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
Patricia Hooker was implanted with ObTape and asserts that she
suffered injuries caused by ObTape.
Hooker brought a product
design and/or manufacturing defects that proximately caused her
Hooker also asserts that Mentor did not adequately
Mentor seeks summary judgment on several of Hooker’s claims.
judgment motion (ECF No. 39 in 4:13-cv-376) 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.
On May 25, 2004, Dr. Leonard Kurello implanted Hooker with
She sought treatment for these symptoms from Dr. Erica Sikkenga
in August 2008.
Dr. Sikkenga found a two centimeter piece of
mesh in Hooker’s vagina; she snipped a piece of it and showed it
Dr. Sikkenga told Hooker that additional exposed
removed additional exposed mesh on August 14, 2008.
Hooker continued to experience vaginal discharge symptoms,
and Dr. Sikkenga referred her back to Dr. Kurello.
Hooker asserts that Dr. Kurello told her at that time
that he had seen a lot of erosions with ObTape and had switched
to another manufacturer because of it.
On March 3, 2009, in
remove all of Hooker’s remaining ObTape.
Hooker was a Michigan
resident when she filed this action, and all of her ObTaperelated medical treatment occurred in Michigan.
Hooker asserts claims for strict liability (design defect,
manufacturing defect, and failure to warn); negligence; breach
Mentor seeks summary judgment on Hooker’s
strict liability and warranty claims, contending that they are
Hooker does not contest summary judgment on her
warranty claims, so Mentor is entitled to summary judgment on
The only issue remaining is whether Hooker’s
strict liability claims are time-barred.
On July 9, 2013, Hooker 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
summary judgment that Minnesota law applies to Hooker’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).
Mentor asserts that Hooker’s strict liability claims are
time-barred under Minnesota law.
The statute of limitations for
a strict liability claim is four years.
Minn. Stat. § 541.05
subd. 2 (“[A]ny action based on the strict liability of the
injuries allegedly caused by a defective product accrues when
manifestation of the disease or injury, and (2) evidence of a
defendant’s product, act, or omission.’”
Klempka v. G.D. Searle
& Co., 963 F.2d 168, 170 (8th Cir. 1992) (quoting Hildebrandt v.
Thus, as the Court has concluded on several
accrues under Minnesota law when the plaintiff learns that she
has an injury that is related 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
circumvent the statute of limitations by waiting for a more
serious injury to develop from the same cause.”)).
in Klempka, the plaintiff suffered injuries and was diagnosed
with chronic pelvic 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
concluded that the plaintiff’s cause of action accrued when she
device. Id. at 170.
television commercial regarding mesh complications in 2012.
Hooker knew or certainly should have known that she suffered
some injuries caused by ObTape well before then.
2008, when Hooker sought treatment for several symptoms, Hooker
knew that her ObTape had become exposed and that a portion of it
had to be surgically removed.
By January 2009, Hooker knew that
Dr. Kurello found more exposed mesh that had to be removed.
And, as Hooker pointed out, Dr. Kurello told her in January 2009
that he had seen a lot of erosions with ObTpae and had switched
to another manufacturer because of it.
Therefore, Hooker knew
by January 2009 at the latest that there was a likely connection
between ObTape and some of her injuries.
She did not file her
complaint until more than four years later, in July 2013.
Like many other plaintiffs in this MDL whose claims are
governed by Minnesota law, Hooker argues that it is not enough
Rather, she argues that she must have been on notice
that a defect in ObTape caused her injuries.
The Court has
considered this argument on several occasions and rejected it
because, like Hooker, the plaintiffs in those cases “did not
point to any Minnesota authority holding that a plaintiff must
be on actual notice that her specific injuries were caused by a
See Watson, 2016 WL 1574071, at *2.
noted that “the precedent establishes that a claim accrues when
the plaintiff becomes aware of an injury and a causal connection
between the injury and the defendant’s product.”
Klempka, 963 F.2d at 170).
Hooker’s argument is nearly identical to the plaintiff’s
argument in Watson (which was nearly identical to the argument
of other plaintiffs in this MDL)—from the language used in her
brief to the cases she cites.
the argument and the cases.
The Court has already considered
Hooker presented no new arguments
Tuttle v. Lorillard Tobacco Co., 377 F.3d 917 (8th Cir. 2004),
and Huggins v. Stryker Corp., 932 F. Supp. 2d 972 (D. Minn.
As the Court previously observed, “Hildebrandt, Tuttle,
and Huggins are all distinguishable from” cases like this one,
where the plaintiff knew or should have known of a connection
between her injuries and a product.
Watson, 2016 WL 1574071, at
suffered injuries that could have been caused by the defendant’s
product OR could have been caused by something else, and the
courts concluded that the cause of action did not accrue until
causal link between the product and the injury.”
contrast, here, [Hooker] suffered injuries that were connected
to an erosion of the ObTape, and [Hooker] knew of, strongly
suspected, or had enough information to know of a connection
between ObTape and at least some of her injuries by the time her
doctor” diagnosed her with an erosion of the ObTape, told her
that it needed to be removed, and told her about the problems he
had observed with the product.
Hooker offered no Minnesota
interpretation of Minnesota law on this subject.
And like other plaintiffs, Hooker relies on Sanchez v. Boston
Scientific Corp., No. 2:12-CV-05762, 2014 WL 202787, at *8–*9 (S.D. W.
Va. Jan. 17, 2014).
Sanchez was decided under California law, not
Minnesota law, and thus has no application here.
“Fraudulent concealment, if it occurs, will toll the running of
opportunity for discovery of the cause of action by the exercise
of due diligence.”
Holstad v. Sw. Porcelain, Inc., 421 N.W.2d
371, 374 (Minn. Ct. App. 1988).
“The party claiming fraudulent
concealment has the burden of showing that the concealment could
not have been discovered sooner by reasonable diligence on his
part and was not the result of his own negligence.” Wild v.
Rarig, 234 N.W.2d 775, 795 (Minn. 1975).
As discussed above, Hooker knew of, strongly suspected, or
had enough information to know of a connection between ObTape
diagnosed her with an erosion in January 2009.
Hooker pointed to evidence that Dr. Kurello told her that he had
seen a lot of erosions with ObTape and he had thus switched to
A reasonable person in that situation
would take some action to follow up on the cause of her injuries
problem with ObTape, a problem with the implant surgery, or some
other problem—such as the medication Hooker was taking for her
other health issues.
But Hooker pointed to no evidence that she
took any action to investigate her potential claims even though
she knew there was a connection between her injuries and the
ObTape and that her doctor had experienced problems with ObTape.
Under these circumstances, the Court concludes that fraudulent
concealment does not toll the statute of limitations.
strict liability claims accrued in January 2009 at the latest.
She did not file this action within four years, so her strict
liability claims are time-barred.
For the reasons set forth above, Hooker’s strict liability
Mentor’s Motion for Partial Summary Judgment
(ECF No. 39 in 4:13-cv-376) is therefore granted.
negligence, fraud, and misrepresentation claims remain pending
This action is now ready for trial.
Within seven days of
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?