RICKMAN et al v. MENTOR WORLDWIDE LLC
Filing
37
ORDER denying 32 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE CLAY D LAND on 12/12/2016. (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.
* 4:14-cv-26 (Rickman)
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
Elizabeth Rickman was implanted with ObTape and asserts that she
suffered injuries caused by ObTape.
Mrs. Rickman brought a
product liability action against Mentor, contending that ObTape
had design and/or manufacturing defects that proximately caused
her injuries.
Mrs. Rickman also asserts that Mentor did not
adequately warn her physicians about the risks associated with
ObTape.
Her husband Douglas asserts a loss of consortium claim.
Mentor seeks summary judgment on all of the Rickmans’ claims,
contending that they are time-barred under Georgia law.
As
discussed below, the Court disagrees and denies Mentor’s summary
judgment motion (ECF No. 32 in 4:14-cv-26).
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
Mrs. Rickman sought treatment from Dr. Lionel Meadows for
stress urinary incontinence.
Dr. Meadows implanted Mrs. Rickman
with a TVT sling implant in 2004.
A few days after the surgery,
Mrs. Rickman developed an abscess at her TVT implant site, so
Dr.
Meadows
removed
the
TVT.
Dr.
Meadows
recommended
a
replacement sling, and he implanted Mrs. Rickman with ObTape on
August 20, 2004.
Dr. Meadows visually inspected the ObTape
before implanting it in Mrs. Rickman, and he did not believe it
had a manufacturing defect.
Meadows Dep. 159:21-160:21, ECF No.
33-3.
In November 2005, Mrs. Rickman sought treatment from Dr.
Louis
Fernandez
because
discharge with blood.
she
had
begun
experiencing
vaginal
Dr. Fernandez diagnosed Mrs. Rickman with
2
a vaginal cyst.
Dr. Fernandez did not conclusively identify the
cause of the cyst, but he believed it may have been related to a
foreign
body,
such
as
Mrs.
Rickman’s
ObTape
Fernandez Dep. 67:18-68:11, ECF No. 33-4.
or
a
suture.
After the initial
treatment for the cyst, Mrs. Rickman continued to have symptoms.
In December 2005, Dr. Fernandez recommended exploration of the
cyst and potential removal of Mrs. Rickman’s ObTape.
During the
surgery, Dr. Fernandez discovered an abscess and removed part of
Mrs. Rickman’s ObTape.
Mrs. Rickman had a follow-up appointment
in January 2006, and Dr. Fernandez believes he told her that
ObTape may have been involved in her abscess.
Id. at 40:3-18.
Mrs. Rickman understood that Dr. Fernandez had removed part of
her ObTape.
Neither Mr. Rickman nor Mrs. Rickman investigated whether
ObTape might be defective. Mrs. Rickman asserts that she did not
suspect that ObTape may be defective or that it was related to
her injuries until 2013.
DISCUSSION
The Rickmans filed their action in this Court on January
29, 2014 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
Direct
of
Filing
the
filing
§ II(E),
of
ECF
the
No.
3
complaint.”
446
in
Order
Regarding
4:08-md-2004.
The
Rickmans live in Georgia, and all of Mrs. Rickman’s ObTaperelated treatment took place in Georgia.
The parties agree that
Georgia law applies to the Plaintiffs’ claims.
Under Georgia law, a plaintiff must bring a personal injury
action “within two years after the right of action accrues.”
O.C.G.A. § 9-3-33.
Under Georgia’s discovery rule, “a cause of
action accrues when a plaintiff discovers, or with reasonable
diligence should have discovered, both the injury and the cause
thereof.”
Waters v. Rosenbloom, 490 S.E.2d 73, 75 (Ga. 1997).
As the Court previously observed, Georgia’s discovery rule, as
interpreted by a panel of the Court of Appeals for the Eleventh
Circuit and thus binding on this Court, is unique because the
statute
of
plaintiff
limitations
knows,
or
does
through
not
the
begin
use
of
to
run
until
reasonable
“the
diligence
should have discovered, two distinct facts: the nature of his
injury . . . [and] the causal connection between the injury and
the alleged negligent conduct of appellee.”
Bergin v. Mentor
Corp., Case No. 4:13-cv-135, 2016 WL 3049491, at *1 (M.D. Ga.
May
27,
2016)
(alterations
in
original)
(quoting
Welch
Celotex Corp., 951 F.2d 1235, 1236 (11th Cir. 1992)).
v.
Under the
Eleventh Circuit’s interpretation of Georgia law, “the running
of
the
statute
of
limitations”
is
tied
“to
the
knowledge of the” defendant’s “wrongful conduct.”
“the
Georgia
statute
of
limitations
4
begins
to
plaintiff’s
Id.
run
Thus,
when
the
plaintiff knew, or with reasonable diligence should have known,
of facts giving notice of an actionable claim, i.e., a causal
connection
between
plaintiff’s
actionable conduct.”
injuries
and
wrongful
or
Id.1
Mentor contends that the Rickmans knew or should have known
that ObTape was connected to their injuries by January 2006
because that is when Dr. Fernandez told Mrs. Rickman that he had
to remove a portion of her ObTape to treat her abscess.
Court
agrees
on
this
point.
But
under
Georgia’s
The
unique
discovery rule, simply knowing of a connection between a product
and an injury is not enough; the statute of limitations did not
begin to run until the Rickmans knew or should have known of a
connection between a product defect and their injuries.
Mentor
contends that Mrs. Rickman should have known, as a matter of
law,
that
words,
such
Mentor
a
connection
asserts
that
existed
every
1
before
reasonable
2013.
person
In
in
other
Mrs.
The Court observes that the Eleventh Circuit’s interpretation of the
Georgia discovery rule is broader than the application of the
discovery rule in most states that this Court has encountered in this
MDL proceeding.
According to the Eleventh Circuit, the statute of
limitations begins to run when the plaintiff should have tied her
problems to some “wrongful” conduct by the defendant, whereas in other
states, the statute of limitations begins to run when the plaintiff
should have associated her problems with the product that she
ultimately claims is defective even though at the time she did not
have reason to believe that the product was defective or that the
defendant had acted wrongfully. The Court is not completely convinced
that the Eleventh Circuit’s interpretation of Georgia law is
consistent with the Georgia Supreme Court’s interpretation of the
Georgia discovery rule, but the Court is bound to apply this Eleventh
Circuit precedent until it is reconsidered by the Eleventh Circuit.
5
Rickman’s
position
would
have
researched
ObTape
to
determine
whether it might be defective and that every reasonable person
would
have
defective.
discovered
at
that
time
that
ObTape
might
be
In support of this contention, Mentor points out
that several women filed ObTape lawsuits against Mentor in 2007,
that the Judicial Panel on Multidistrict Litigation created this
multidistrict proceeding regarding ObTape in 2008, that there
was one article and one editorial regarding ObTape in the New
York Times during 2009, and that other plaintiffs in this MDL
read articles about problems with mesh slings as early as 2006.
The
Court,
however,
is
not
convinced
failed to exercise reasonable diligence
that
the
Rickmans
as a matter of law.
Rather, the Court finds that there is a fact dispute on this
issue.
First, no doctor told Mrs. Rickman that ObTape might be
defective,
and
Mentor
did
not
point
to
any
evidence
that
a
doctor would have suggested to Mrs. Rickman that ObTape was
defective if she had asked.
The evidence suggests that if Mrs.
Rickman had asked Dr. Meadows whether ObTape had a defect, he
would not have told Mrs. Rickman that ObTape had a design defect
or a manufacturing defect.
And Mentor did not point to any
evidence suggesting how Dr. Fernandez would have responded if
Mrs. Rickman had asked him whether ObTape had a defect.
Thus,
even if the Court were to conclude that every reasonable person
in
Mrs.
Rickman’s
situation
would
6
have
investigated
her
potential claim by asking her doctors in 2006 whether ObTape was
defective, there is no evidence in the present record that Mrs.
Rickman’s doctors would have suggested to her that it was.
Second,
it
is
true
that
the
Rickmans
did
not
conduct
independent research regarding ObTape—the second type of mesh
sling that was connected to an abscess in Mrs. Rickman’s body.
But the Court declines to hold that a patient lacks reasonable
diligence,
as
a
matter
of
law,
if
she
fails
to
conduct
independent research regarding a potential product defect months
or years after being told of a possible connection between the
product and her injuries.
In summary, while a jury could conclude that the Rickmans
should have done more in 2006 to investigate their potential
claims—and that a 2006 investigation would have yielded enough
information
to
put
them
on
notice
of
a
potential
defect
ObTape—a jury could also reach the opposite conclusion.
in
The
Court thus finds that a genuine fact dispute exists on when the
Rickmans’ claims accrued under Georgia’s unique discovery rule.
CONCLUSION
As discussed above, Mentor’s summary judgment motion (ECF
No. 33-1 in 4:14-cv-26) is denied.
trial.
This action is ready for
Within seven days of the date of this Order, the parties
shall notify the Court where in Georgia venue is proper.
The
Court notes that Mrs. Rickman stated in her Plaintiff Fact Sheet
7
that she is a resident of Carnesville, Georgia, which is in
Franklin County, in the Middle District of Georgia – Athens
Division.
Lewis Decl. Ex. E, Suppl. Mentor Georgia Plaintiff
Fact Sheet § III.3 (June 29, 2016); 28 U.S.C. § 90(b)(1).
ObTape
surgeries
took
place
in
Commerce,
Georgia
Her
(Jackson
County) and Toccoa, Georgia (Stephens County), which are in the
Northern District of Georgia – Gainesville Division.
Mentor
Georgia
Plaintiff
Fact
Sheet
§
II.4;
id.
Suppl.
§ II.6;
28 U.S.C. § 90(a)(1).2
IT IS SO ORDERED, this 12th day of December, 2016.
s/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
2
The undersigned is authorized to sit in any district court in the
State of Georgia. Therefore, he intends to try this case when it is
determined where in Georgia it should be tried.
Since the Athens
Division is within the Middle District, that District would be the
most convenient for the Court.
8
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