HAMPTON V. MENTOR CORPORATION et al

Filing 37

ORDER granting (32) Motion for Summary Judgment in case 4:14-cv-00078-CDL; granting (32) Motion for Summary Judgment in case 4:14-cv-00105-CDL. Ordered by US DISTRICT JUDGE CLAY D LAND on 12/15/2016. (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 Nos.
4:14-cv-078 (Hampton)
4:14-cv-105 (Hendrix)

*
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.

Plaintiffs

Maxine Hampton and Diane Hendrix were implanted with ObTape and
assert that they suffered injuries caused by ObTape.

Plaintiffs

brought

contending

that

product

ObTape

had

liability
design

actions
and/or

proximately caused their injuries.1

against

Mentor,

manufacturing

defects

that

Plaintiffs also assert that

Mentor did not adequately warn their physicians about the risks
associated with ObTape.

Mentor seeks summary judgment on all of

Plaintiffs’ claims, contending that they are time-barred under
Minnesota

law.

For

the

reasons

set

forth

below,

Mentor’s

summary judgment motions (ECF No. 32 in 4:14-cv-78 and ECF No.
32 in 4:14-cv-105) are granted.

1

Hampton and Hendrix assert their claims separately in two independent
civil actions. Because the resolution of the summary judgment motions
in both actions involves similar issues related to the Minnesota
statute of limitations, the Court decides both motions in this single
order.

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
I.

Maxine Hampton
Dr. Mahesh Patel diagnosed Plaintiff Maxine Hampton with

stress urinary incontinence.

Dr. Patel recommended surgery to

treat Hampton’s symptoms, and he implanted Hampton with ObTape
on February 24, 2005.

Hampton’s stress urinary incontinence

improved after the surgery.
Hampton visited Dr. Patel in November 2007 complaining of
hematuria,

urinary

tract

infections,

and

brownish

vaginal

discharge.

Dr. Patel found that a portion of Hampton’s ObTape

had protruded into her vagina, and he recommended that she have

2

the protruded portion of her ObTape removed.

See, e.g., Patel

Dep. 44:22-45:21, ECF No. 32-4 in 4:14-cv-78 (stating that Dr.
Patel

would

have

told

Hampton

that

he

wanted

to

remove

the

protruded portion of her ObTape to treat her symptoms); Hampton
Dep. 131:6-9, ECF No. 32-6 in 4:14-cv-78 (stating that Hampton
recalled Dr. Patel telling her that he would schedule her for an
excision of her ObTape).
Dr. Patel removed the extruded portion of Hampton’s ObTape
on January 3, 2008.
January

16,

2008

He saw Hampton for a follow-up visit on

and

noted

that

her

discharge

symptoms

had

improved and that she had very little discharge; according to
Dr. Patel, it did not “look like it was an infected process.”
Patel Dep. 49:16-24, ECF No. 33-3 in 4:14-cv-78.
informed

Hampton

that

the

protrusion

may

have

Dr. Patel
caused

“an

infection or irritation or discharge,” though he did not tell
her why the protrusion happened.

Id. at 87:3-15.

At some

unspecified point, Hampton suffered a bladder infection and a
kidney

infection,

and

she

saw

“other

determine the cause of those infections.

doctors”

to

try

to

Hampton Dep. 240:19-

241:7, ECF No. 33-4 in 4:14-cv-78.
Hampton asserts claims for strict liability (design defect,
manufacturing defect, and failure to warn); negligence; breach
of

express

fraud;

warranty;

constructive

breach
fraud;

of
and

3

implied

warranty;

negligent

and

common

law

intentional

misrepresentation.

Mentor

seeks

summary

judgment

on

Hampton’s claims, contending that they are time-barred.

all

of

Hampton

does not contest summary judgment on her warranty claims, so
Mentor is entitled to summary judgment on those claims.
II.

Diane Hendrix
Dr. Jitendra Shah diagnosed Plaintiff Diane Hendrix with

stress

urinary

incontinence

and

recommended

a

sling

implant.

Dr. Shah implanted Hendrix with ObTape on August 29, 2005.

At

her two follow-up visits following the surgery, Hendrix reported
no complaints.

But in March 2007, Hendrix returned to Dr. Shah

reporting recurrent vaginal infections that did not respond to
antibiotic treatment.

Dr. Shah examined Hendrix and found that

her ObTape had eroded.

Dr. Shah told Hendrix that her ObTape

had eroded and that he needed to remove the eroded portion of
ObTape.

Hendrix understood that Dr. Shah intended to “clip” a

portion of the sling, which she referred to as a band.

Hendrix

Dep. 41:21-25, 59:13-60:1, ECF No. 35-5 in 4:14-cv-105.

Dr.

Shah excised a portion of Hendrix’s ObTape on March 16, 2007.
Dr.

Shah

Hendrix

did
came

not
to

tell

Hendrix

suspect

something to [her].”

that

why
“the

her

ObTape

doctors

had

eroded.

actually

done

Id. at 214:20-215:6.

In August 2007, Hendrix returned to Dr. Shah complaining of
vaginal discharge.
again.

She was concerned that her ObTape had eroded

Dr. Shah examined Hendrix and did not find an erosion at

4

that time.

And in May 2008, Hendrix saw Dr. Shah because her

husband thought he could feel the sling during intercourse, and
she wanted to make sure her ObTape had not eroded again.

Dr.

Shah did not find an erosion at that time.
In 2010, Hendrix sought treatment from another doctor, Dr.
Fareesa

Khan,

fever.

These symptoms occurred one or two days after Hendrix

noticed

that

vagina.

Dr.

for

a

bleeding,

discharge,

gauze-looking

Khan

left

material

determined

that

had

ObTape

groin

come
was

pain,

out

and

her

cause

the

of

of

Hendrix’s infection.
Hendrix asserts claims for strict liability (design defect,
manufacturing defect, and failure to warn); negligence; breach
of

express

fraud;

warranty;

constructive

misrepresentation.

breach

of

fraud;
Mentor

and
seeks

implied

warranty;

negligent
summary

and

judgment

common

law

intentional
on

Hendrix’s claims, contending that they are time-barred.

all

of

Hendrix

does not contest summary judgment on her warranty claims, so
Mentor is entitled to summary judgment on those claims.
DISCUSSION
On

February

26,

2014,

Hampton

served

Mentor

with

a

Complaint captioned in the Hennepin County District Court of the
State of Minnesota.

On April 9, 2014, Hendrix served Mentor

with a Complaint captioned in the Hennepin County District Court
of the State of Minnesota.

Mentor removed both actions to the

5

U.S. District Court for the District of Minnesota.

The cases

were later transferred to this Court as part of a multidistrict
litigation proceeding regarding ObTape.
purposes

of

summary

judgment

that

The parties agree for

Minnesota

law

applies

to

Hampton’s claims.

See Cline v. Mentor, No. 4:10-cv-5060, 2013

WL

(M.D.

286276,

Minnesota

at

*7

law

Jan.

to

applied

Ga.

24,

claims

2013)

of

(concluding

non-Minnesota

that

ObTape

plaintiffs who brought their actions in Minnesota).
I.

Strict Liability and Negligence Claims
Mentor

negligence

contends
claims

that

are

Plaintiffs’

time-barred

strict

under

liability

Minnesota

law.

and
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

defendant

and

arising

from

the

manufacture, sale, use or consumption of a product shall be
commenced within four years.”).

The statute of limitations for

a negligence claim is six years. Minn. Stat. § 541.05 subd. 1(5)
(establishing

six-year

limitation

period

for

personal

injury

claims not arising in contract or strict liability).
Under Minnesota law, “a claim involving personal injuries
allegedly

caused

by

a

defective

product

accrues

when

two

elements are present: ‘(1) a cognizable physical manifestation
of

the

disease

or

injury,

and

(2)

evidence

of

a

causal

connection between the injury or disease and the defendant’s

6

product, act, or omission.’”

Klempka v. G.D. Searle & Co., 963

F.2d 168, 170 (8th Cir. 1992) (quoting Hildebrandt v. Allied
Corp., 839 F.2d 396, 398 (8th Cir. 1987)) (applying Minnesota
law).

“A plaintiff who is aware of both her injury and the

likely cause of her injury is not permitted to circumvent the
statute of limitations by waiting for a more serious injury to
develop from the same cause.”

Id.

plaintiff

and

suffered

injuries

For example, in Klempka, the
was

diagnosed

with

chronic

pelvic inflammatory disease, which her doctor said was caused by
the plaintiff’s intrauterine device. Id. at 169.

Several years

later, the plaintiff was told that she was infertile and that
the intrauterine device caused her infertility.

Id. Applying

Minnesota law, the Eighth Circuit concluded that the plaintiff’s
cause of action accrued when she first learned that she had an
injury (chronic pelvic inflammatory disease) that was caused by
the intrauterine device. Id. at 170.
Here, both Plaintiffs contend that they did not learn of a
connection between ObTape and her injuries until 2009 or later –
either

based

complications
Plaintiffs

on
or

knew

a
a

that

television
consultation
they

commercial
with

suffered

some

a

regarding

doctor.
injuries

But

mesh
both

related

to

portion

of

ObTape before then.
In

January

2008,

Hampton’s

doctor

excised

a

Hampton’s eroded ObTape to treat her symptoms, which included

7

brownish vaginal discharge.

Hampton was told at the time that a

portion of her ObTape had to be removed.

After the excision

procedure, Hampton’s discharge symptoms improved.

Therefore,

Hampton knew or should have known by January 2008 that there was
a likely connection between ObTape and some of her injuries.
She did not file her complaint until more than six years later,
in February 2014.
In March 2007, Hendrix visited her doctor complaining of
recurrent vaginal infections.
Hendrix’s

ObTape

and

told

Her doctor found an erosion of

her

that

he

needed

to

remove

it.

Hendrix was aware that a portion of her sling needed to be
“clipped,” and her doctor performed the excision procedure on
March 16, 2007.

Therefore, Hendrix knew or should have known by

March 2007 that there was a likely connection between ObTape and
some of her injuries.2

She did not file her complaint until more

than seven years later, in April 2014.
In

summary,

each

Plaintiff

connected

(or

had

enough

information to connect) at least some of her injuries to ObTape
more

than

Plaintiffs’

six

years

strict

before

liability

she
and

filed

suit.

negligence

Accordingly,

claims

are

time-

barred under Minnesota law.
2

The fact that Hendrix is not seeking damages based on the March 2007
erosion does not change this conclusion.
As the Klempka
court
observed: “A plaintiff who is aware of both her injury and the likely
cause of her injury is not permitted to circumvent the statute of
limitations by waiting for a more serious injury to develop from the
same cause.” Klempka, 963 F.2d at 170.

8

Plaintiffs seem to contend that it is not enough that they
made (or had enough information to make) a connection between
ObTape and some of their injuries.

Rather, they appear to argue

that they must have been on notice that a defect in ObTape
caused their injuries.

Hampton acknowledges that Dr. Patel told

her she had a protrusion of her ObTape; she emphasizes that he
did not tell her why it happened.

And Hendrix acknowledges that

Dr. Shah told her that her ObTape had eroded, but she asserts
that no doctor told her what caused the erosion.
did

not

point

to

any

Minnesota

authority

But Plaintiffs
holding

that

a

plaintiff must be on notice that her specific injuries were
caused by a product defect.

Rather, 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.
Plaintiffs

nonetheless

contend

that

two

Eighth

Circuit

cases and one Minnesota District Court case support denial of
summary

judgment

claims.

The

on

Court

their

negligence

disagrees.

First,

and

strict

Plaintiffs

liability
point

to

Hildebrandt v. Allied Corp., 839 F.2d 396 (8th Cir. 1987), where
the plaintiffs alleged that they suffered lung damage due to
their

exposure

to

a

toxic

chemical

at

their

workplace.

But

there, unlike here, the plaintiffs’ doctors initially told the
plaintiffs that there was no correlation between their symptoms

9

and the chemical. Id. at 399.

The Eighth Circuit thus concluded

that the plaintiffs’ claims did not accrue until the cause of
the

plaintiffs’

injuries

was

rationally

identified.

Second,

Plaintiffs point to Tuttle v. Lorillard Tobacco Co., 377 F.3d
917 (8th Cir. 2004). In Tuttle, the district court found that
the

decedent’s

smokeless

tobacco

product

liability

action

accrued when the decedent discovered a lump in his cheek.

The

Eighth Circuit reversed because the decedent’s doctor initially
told the decedent that the lump was caused by an oral infection
and was treatable with antibiotics—not that it was oral cancer
caused by the tobacco. Id. at 922.

Third, Plaintiffs point to

Huggins v. Stryker Corp., 932 F. Supp. 2d 972 (D. Minn. 2013).
In Huggins, the plaintiff asserted that the defendant’s pain
pump caused a condition that resulted in degeneration of his
cartilage.

The

plaintiff’s

doctor

discovered

the

loss

of

cartilage in 2002, but he did not connect the condition to the
pain

pump

or

tell

the

plaintiff

that

there

was

such

a

connection. The district court noted that the “first article
recognizing a potential causal link between pain pumps” and the
plaintiff’s condition was not published until 2007. Id.
Hildebrandt,

Tuttle, and

Huggins

are all distinguishable

from Plaintiffs’ cases. In Hildebrandt, Tuttle, and Huggins, the
plaintiffs suffered injuries that could have been caused by the
defendant’s product OR could have been caused by something else,

10

and the courts concluded that the cause of action did not accrue
until the plaintiffs had some objective information suggesting a
causal link between the product and the injury. In contrast,
here, both Plaintiffs suffered injuries that were connected to
an erosion of the ObTape, and both Plaintiffs knew of, strongly
suspected, or had enough information to know of a connection
between ObTape and at least some of their injuries by the time
of their excision procedures.
Plaintiffs argue that even if Minnesota’s discovery rule
does

not

save

their

strict

liability

and

negligence

claims,

fraudulent concealment should toll the statute of limitations.
“Fraudulent concealment, if it occurs, will toll the running of
the

statute

of

limitations

until

discovery

or

reasonable

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,

both

Plaintiffs

knew

of,

strongly

suspected, or had enough information to know of a connection
between ObTape and at least some of their injuries by the time
of

their

excision

procedures.

A

11

reasonable

person

in

that

situation would take some action to follow up on the cause of
her

injuries

and

try

to

find

out

whether

the

injuries

were

caused by a problem with ObTape, a problem with the implant
surgery, or some other problem.
treatment

from

other

doctors

Hampton argues that she sought
at

some

undisclosed

time

to

determine the cause of bladder and kidney infections she now
attributes to ObTape.

But she did not point to evidence that

she took any steps to investigate her potential claims related
to

the

discharge

procedure.

symptoms

and

the

January

2008

excision

Hendrix pointed to evidence that she went to Dr.

Shah two more times after her March 2007 excision procedure
because she suspected another erosion; during those visits, Dr.
Shah could not see or feel another erosion.

Hendrix suspected

that her problems were related to ObTape and that Dr. Shah had
done something wrong, but she did not point to evidence that she
followed up on that suspicion until she suffered another erosion
two years later and sought treatment from Dr. Khan.

Under these

circumstances, the Court concludes that fraudulent concealment
does not toll the statute of limitations for either Plaintiff.
Plaintiffs did not file their complaints within six years
after

their

claims

accrued.

Their

strict

liability

and

negligence claims (including their negligent misrepresentation
claims) are therefore time-barred.

12

II.

Fraud and Intentional Misrepresentation Claims
Mentor also seeks summary judgment on Plaintiffs’ fraud,

fraudulent
claims.

The

concealment,
statute

of

and

intentional

limitations

for

years. Minn. Stat. § 541.05 subd. 1(6).

misrepresentation

fraud

claims

is

six

A fraud cause of action

“shall not be deemed to have accrued until the discovery by the
aggrieved party of the facts constituting the fraud.” Id. But
“the facts constituting fraud are deemed to have been discovered
when, with reasonable diligence, they could and ought to have
been discovered.” Veldhuizen v. A.O. Smith Corp., 839 F. Supp.
669, 674 (D. Minn. 1993) (quoting Bustad v. Bustad, 116 N.W.2d
552, 555 (Minn. 1962)). “The failure to actually discover the
fraud

does

not

toll

the

statute

of

limitations

if

it

is

inconsistent with reasonable diligence.” Id.; accord Blegen v.
Monarch Life Ins. Co., 365 N.W.2d 356, 357-58 (Minn. Ct. App.
1985). Plaintiffs “carry the burden of proving that they did not
discover the facts constituting fraud within six years before
commencement of the action.” Veldhuizen, 839 F. Supp. 674. “They
must also show that they could not have discovered the fraud
through the exercise of reasonable diligence.” Id.
As discussed above, neither Plaintiff filed her complaint
within six years after learning of a connection between ObTape
and her injuries.

They both knew of, strongly suspected, or had

enough information to know of a connection between ObTape and at

13

least

some

of

procedures.

their

injuries

by

the

time

of

their

excision

Again, neither Plaintiff pointed to evidence that

she exercised reasonable diligence to investigate her potential
claims even though she knew (or had enough information to know)
there was a connection between her injuries and the ObTape.
Plaintiffs also did not point to evidence that they could not
have

discovered

intentional
investigating

enough

facts

misrepresentation
the

to

support

claims

connection

they

their

had
made

fraud

they
(or

had

and

started
enough

information to make) between ObTape and their injuries within a
reasonable time after they discovered the connection. For these
reasons, the Court finds that Plaintiffs’ fraud and intentional
misrepresentation claims are time-barred.
CONCLUSION
As discussed above, Mentor’s summary judgment motions (ECF
No. 32 in 4:14-cv-78 and ECF No. 32 in 4:14-cv-105) are granted.
IT IS SO ORDERED, this 15th day of December, 2016.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

14