GRIGG v. MENTOR CORPORATION et al
ORDER granting 33 Motion for 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
On March 18, 2004, Plaintiff Teresa Grigg was implanted
with Defendant Mentor Worldwide LLC’s suburethral sling product,
ObTape Transobturator Tape.
Grigg alleges that she suffered
Grigg also asserts that she suffered injuries because Mentor did
not adequately warn her physicians about the risks associated
ObTape from her physicians.
Grigg is a North Carolina resident
She filed her action in this Court on August 29, 2013
under the Court’s direct filing order.
The parties agreed that
for direct-filed cases, the “Court will apply the choice of law
rules of the state where the plaintiff resides at the time of
the filing of the complaint.”
Order Regarding Direct Filing
§ II(E), ECF No. 446 in 4:08-md-2004.
Mentor seeks summary judgment on Grigg’s claims contending
that they are barred by the North Carolina statute of repose and
causation expert and thus cannot prove causation.
negligence claims, but she contends that (1) she asserted breach
of express warranty and breach of implied warranty claims, (2)
Minnesota law applies to those claims under North Carolina’s
choice of law rules, and (3) her warranty claims are not barred
under Minnesota law.
The first problem for Grigg is that she did not assert any
warranty claims in her Complaint.
There are two counts in her
Complaint: Count I – Strict Liability and Count II – Negligence.
Compl. 4, 7, ECF No. 1 in 4:13-cv-393.
Based on the Court’s
should have said so in her Complaint.
asserted warranty claims and even if the Court applied Minnesota
law to those claims as Grigg contends the Court should do, the
claims are time-barred under Minnesota law.
In support of her
contention that any warranty claims she asserted are timely,
Grigg points to the Minnesota statutes of limitations for strict
liability and negligence.
But as the Court has explained on
several occasions, under Minnesota law, a breach of warranty
action “must be commenced within four years after the cause of
action has accrued.”
Minn. Stat. § 336.2-725(1).
“A cause of
aggrieved party’s lack of knowledge of the breach.”
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
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 axle and rotor plate failed several years
Grigg does not appear to dispute that her ObTape was
delivered on March 18, 2004 when it was implanted into her body.
Grigg also does not dispute that she did not file this action
within four years after delivery of her ObTape.
And she did not
point to any evidence that ObTape’s warranty explicitly extended
warranty claims, they would be time-barred under Minnesota law.
The third problem for Grigg is that she did not disclose a
specific causation expert to opine that her injuries were caused
by defects in ObTape.
Lewis Decl. ¶ 8, ECF No. 33-3 in 4:13-cv-
She also did not respond to Mentor’s summary judgment
motion based on lack of causation.
Once Mentor showed that
Grigg could not produce admissible evidence to support specific
causation, Grigg had the burden to point to some evidence to
create a genuine fact dispute on specific causation.
R. Civ. P. 56(c)(1) (“A party asserting that a fact . . . is
particular parts of materials in the record[.]”).
Grigg did not
point to any evidence that she disclosed a specific causation
expert in this case.
And she did not point to any expert
proximately caused by a defect in ObTape.
Without evidence on
specific causation, Grigg cannot prevail on any of her claims.
For all of these reasons, Mentor’s summary judgment motion
(ECF No. 33 in 4:13-cv-393) is granted.
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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