CARTER et al v. MENTOR CORPORATION et al
Filing
34
ORDER granting 24 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE CLAY D LAND on 09/16/2015. (CGC)
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-434 (P. CARTER)
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
Phyllis Carter was implanted with ObTape and asserts that she
suffered injuries caused by ObTape.
Mrs. Carter brought this
product liability action against Mentor, contending that ObTape
had design and/or manufacturing defects that proximately caused
her injuries.
Mrs. Carter also asserts that Mentor did not
adequately warn her physicians about the risks associated with
ObTape.
Mrs.
Carter’s
consortium claim.
barred
by
the
husband
Donald
brought
a
loss
of
Mentor contends that the Carters’ claims are
applicable
statutes
of
limitation.
For
the
reasons set forth below, the Court agrees, and Mentor’s Motion
for Summary Judgment (ECF No. 24 in 4:13-cv-434) 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
genuine
Fed. R.
dispute of
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.
A factual
dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.
Id.
FACTUAL BACKGROUND
Viewed in the light most favorable to the Carters, the
record
reveals
the
following.
The
Carters
live
in
South
Carolina, and all of Mrs. Carter’s medical treatment relevant to
this action occurred in South Carolina.
In 2003, Mrs. Carter’s
doctor, Dr. Christian Magura, implanted ObTape in Mrs. Carter to
treat her stress urinary incontinence.
Nearly a year after the
implant surgery, Mrs. Carter began to experience sharp pain,
vaginal bleading, and vaginal discharge.
Mrs. Carter visited
Dr. Magura in December 2004, and he told her that she “had an
erosion that needed to be fixed.”
No. 24-4.
Mrs. Carter Dep. 75:3-8, ECF
In January 2005, Dr. Magura performed a vaginoscopy
that confirmed the erosion, and he told Mrs. Carter that her
2
symptoms were caused by an erosion of the ObTape.
22.
Id. at 76:2-
Dr. Magura removed part of the ObTape.
Later in 2005, Mrs. Carter went back to Dr. Magura because
she was still experiencing vaginal bleeding.
Dr. Magura removed
additional ObTape and told Mrs. Carter that he had taken out
more of the sling.
Mrs. Carter Dep. 93:18-22.
Dr. Magura told
Mrs. Carter that the procedure would likely “fix [her] problem.”
Id. at 93:23-94:1.
But it did not fix her problem, so Mrs.
Carter went to see another doctor, Dr. Michael Kennelly, in
December of 2005.
Dr. Kennelly told Mrs. Carter that a portion
of the ObTape had not been removed and that it was causing some
of her symptoms.
Id. at 100:14-20.
removal of the entire sling.
Dr. Kennelly recommended
Id. at 104:22-105:4.
In January
2006, Mrs. Carter had a third procedure to remove ObTape.
While Mrs. Carter was experiencing complications with her
ObTape, she found it painful to have sex.
Mr. Carter believed
that the couple’s sexual difficulties were caused by the ObTape.
Mr. Carter Dep. 47:13-18, ECF No. 24-7 (Q: “At any time when you
were having the sexual complications, did you ever think that it
might be related to the sling that she had implanted?”
A:
“After we found out that it was – parts of it was still in there
and she had infection and all this that and the other, yes.”);
id.
at 53:10-21 (“When she started having trouble, when she
started bleeding and everything, and they told her they needed
3
to go in and she had to – they needed -- it had worked its way
through her . . . pelvic area, and they needed to go in there
and . . . get it out, and that’s when we realized then that
something . . . something wasn’t right.”).
The Carters filed their Complaint on September 17, 2013.
See generally Compl., ECF No. 1 in 4:13-cv-434.
Mrs. Carter
brought claims for personal injury under a variety of theories,
including
strict
defective
fraudulent
liability
failure
breach
manufacturing,
concealment,
to
warn,
of
strict
warranty,
constructive
liability
negligence,
fraud,
negligent
misrepresentation, negligent infliction of emotional distress,
gross
negligence,
unjust
enrichment,
Unfair Trade Practices Act.
and
the
South
Carolina
Mr. Carter’s claim is for loss of
consortium.
DISCUSSION
The Carters filed their action in this Court 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.
The parties agree that
South Carolina law, including its statutes of limitation, apply
to the Carters’ claims because the Carters are South Carolina
4
residents and all of Mrs. Carter’s medical treatment relevant to
this action occurred in South Carolina.
The parties agree that the Carters’ claims are subject to a
three-year statute of limitations.
S.C. Code Ann. § 15-3-530(5)
(requiring that actions for injury to the person be brought
within three years after the claim accrues).
That statute of
limitations begins to run when a person “knew or by the exercise
of reasonable diligence should have known that he had a cause of
action.” S.C. Code Ann. § 15-3-535.
The only dispute here is
when the Carters’ claims arose.
Under
South
Carolina’s
discovery
rule,
“the
statute
of
limitations begins to run from the date the claimant knew or
should have known that, by the exercise of reasonable diligence,
a cause of action exists.”
Holmes v. Nat’l Serv. Indus., Inc.,
717 S.E.2d 751, 753 (S.C. 2011); accord S.C. Code Ann. § 15-3535.
“The date on which discovery of the cause of action should
have
been
question.”
made
is
an
objective,
rather
than
subjective,
Bayle v. S.C. Dep’t of Transp., 542 S.E.2d 736, 740
(S.C. Ct. App. 2001).
“In other words, whether the particular
plaintiff actually knew he had a claim is not the test. Rather,
courts must decide whether the circumstances of the case would
put a person of common knowledge and experience on notice that
some right of his has been invaded, or that some claim against
5
another
party
might
exist.”
Id.
(internal
quotation
marks
omitted).
Where there is no conflicting evidence “as to whether a
claimant knew or should have known he had a cause of action,”
the Court may resolve the issue as a matter of law.
Maher v.
Tietex Corp., 500 S.E.2d 204, 207 (S.C. Ct. App. 1998); accord
McMaster v. Dewitt, 767 S.E.2d 451, 456 (S.C. Ct. App. 2014).
In McMaster, for example, the South Carolina Court of Appeals
evaluated the claim of a plaintiff who was hospitalized with
psychosis
due
to
an
over-prescription
McMaster, 757 S.E.2d at 456.
of
the
drug
Adderoll.
When the plaintiff was discharged
from the hospital, he knew he had suffered from Adderall-induced
psychosis.
He also knew which doctor prescribed him Adderall.
The South Carolina Court of Appeals determined that these facts
were sufficient to put the plaintiff on notice of a potential
malpractice
claim
against
his
doctor.
Id.;
see
Barnes
v.
Schering Corp., 16 F.3d 408, No. 93-1638, 1994 WL 20110, at *2
(4th Cir. Jan. 26, 1994) (per curiam) (applying South Carolina
law
and
doctor
concluding
put
the
that
plaintiff
the
on
plaintiff’s
notice
that
discussion
her
with
injuries
her
were
connected to the drug diethylstilbestrol); see also Bayle, 542
S.E.2d at 741 (finding that the plaintiff’s negligence cause of
action
against
the
transportation
department
accrued
shortly
after his wife’s fatal car accident because he knew that his
6
wife lost control of her car when she drove into a pool of water
on the expressway and was therefore on notice that the accident
was
potentially
caused
by
the
transportation
department’s
negligence); Young v. S.C. Dep’t of Corr., 511 S.E.2d 413, 416
(S.C. Ct. App. 1999) (finding that an inmate should have been
aware
that
prison
officials’
delay
in
obtaining
medical
treatment may have exacerbated his symptoms when two separate
doctors expressed concern about the delay).
The Carters assert that they did not know ObTape might be
defective
until
2012,
when
Mrs.
Carter
regarding problems with mesh slings.
saw
an
advertisement
The Carters argue that
their claims against Mentor did not accrue until they knew of
their injuries, knew the injuries were caused by ObTape, and
knew that ObTape might be defective.
The Carters, however,
pointed the Court to no South Carolina authority that supports
such a rule.
Rather, the cases interpreting South Carolina law
establish that a plaintiff’s product liability cause of action
accrues when the plaintiff has information sufficient to place
her on notice of the possibility that her injury was caused by a
certain product.
E.g., Barnes, 1994 WL 20110, at *2.
Here, Mrs. Carter knew in January 2005 that her symptoms
were caused by an erosion of the ObTape.
And by December 2005,
Mrs. Carter’s new doctor recommended removing the entire sling
to alleviate Mrs. Carter’s symptoms.
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While Mrs. Carter was
experiencing complications with ObTape, Mr. Carter connected his
wife’s
symptoms
(and
his
loss
of
consortium)
to
the
sling.
Therefore, by December 2005, a person of common knowledge and
experience in the Carters’ position would have been on notice
that their injuries may be related to ObTape.
They would have
been able to begin an investigation to determine whether those
injuries were caused by a problem with ObTape, a problem with
the implantation surgery, or some other problem.
Mrs. Carter contends that her doctors never told her that
there was a defect in ObTape.
Rather, they told her that she
was having a foreign body response to the sling.
Mrs. Carter
assumed that her symptoms were due to a problem with her body
that caused her to reject the sling, and she emphasizes that Dr.
Magura did not initially know whether that foreign body response
was caused by a problem with ObTape.
But by the third excision
surgery, when Mrs. Carter had to visit a specialist and was
informed that the entire sling needed to be removed, a person of
common knowledge and experience in Mrs. Carter’s position would
have been on notice that her injuries were caused by ObTape and
should have investigated whether her injuries were caused by a
problem with ObTape or some other problem.
For these reasons, the Court finds that no genuine fact
dispute
exists
on
when
the
Carters’
claims accrued by December of 2005.
8
claims
accrued.
Their
The Carters did not file
their
Complaint
until
September
after their claims accrued.
17,
2013—nearly
eight
years
Therefore, the Carters’ claims are
barred by the applicable statutes of limitation, and Mentor is
entitled to summary judgment on their claims.
CONCLUSION
As discussed above, Mentor’s Motion for Summary Judgment
(ECF No. 24 in 4:13-cv-434) is granted.
IT IS SO ORDERED, this sixteenth day of September, 2015.
s/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
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