RICHARDSON v. MENTOR CORPORATION

Filing 21

ORDER granting #14 Motion for Summary Judgment; granting #17 Amended Motion. Ordered by US DISTRICT JUDGE CLAY D LAND on 08/16/2017. (CCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
IN RE MENTOR CORP. OBTAPE

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TRANSOBTURATOR SLING PRODUCTS

*

LIABILITY LITIGATION

*

MDL Docket No. 2004
4:08-MD-2004 (CDL)
Case No.
4:15-cv-140 (S. Richardson)

O R D E R
Plaintiff Susan Richardson claims that she suffered damages
caused

by

Defendant

Transobturator

Mentor

Tape.

Missouri’s

five-year

§ 516.120,

applies

Worldwide

Richardson
statute

to

of

LLC’s

and

Mentor

limitations,

Richardson’s

product
agree

Mo.

claims.

ObTape
that

Rev.

Stat.

Richardson

and

Mentor also agree that Richardson’s claims accrued on September
10, 2008.

And Richardson and Mentor agree that Richardson was

required to file her claims against Mentor by September 10,
2013.

She filed this action on August 19, 2015.

Therefore, on

its face, her Complaint in this action is untimely.
argues,

however,

that

because

she

filed

a

Richardson

separate

action

against Mentor in a different court before September 10, 2013,
the

Court

timely.

should

consider

her

claims

in

this

action

As discussed below, the Court disagrees

Mentor’s summary judgment motion (ECF Nos. 14 & 17).

to

be

and grants

PROCEDURAL BACKGROUND
On July 15, 2013, Richardson and more than seventy other
plaintiffs

filed

an

action

in

Missouri

state

court

against

Mentor and more than twenty other manufacturers of pelvic mesh
products.

Notice of Removal E. A, Compl., ECF No. 1-3 at 5-49

in 4:14-cv-1669-JCH (E.D. Mo. Sept. 26, 2014); copy filed as
Def.’s Am. Mot. for Summ. J. Ex. A, Mo. State Court Compl., ECF
No. 17-4 in this action.

In that Complaint, Richardson alleged

that she was “implanted with at least one defective device sold
and marketed by the Defendants.”

Id. ¶ 1.

removal

U.S.

of

that

action

to

the

Mentor consented to

District

Court

for

the

Eastern District of Missouri, and then the Judicial Panel on
Multidistrict Litigation transferred the action to MDL No. 2327,
In

re

Ethicon,

Litigation

Inc.

Pelvic

Repair

(“Ethicon

MDL”),

which

System
is

Products

pending

in

Liability
the

U.S.

District Court for the Southern District of West Virginia.

On

August 4, 2015, the claims of all of the other plaintiffs were
severed

and

dismissed

without

prejudice;

only

Richardson’s

claims against multiple defendants remained pending.

Pretrial

Order #189, ECF No. 59 in 2:14-cv-27205 (S.D.W.V. Aug. 4, 2015).
There was

apparently

no activity in that action until

April

2017, when Richardson voluntarily dismissed, without prejudice,
her claims against Mentor and other defendants under Federal
Rule of Civil Procedure 41(a)(1)(a)(ii).

2

See Stipulation to

Dismiss as to Mentor, ECF No. 62 in 2:14-cv-27205 (S.D.W.V. Apr.
24, 2017); Stipulation to Dismiss as to Mentor, ECF No. 76 in
2:14-cv-27205 (S.D.W.V. Apr. 26, 2017).
On

August

19,

2015,

while

her

first

action

was

still

pending in the Ethicon MDL, Richardson filed an action in this
Court in

the Mentor MDL

caused by ObTape.

alleging that

she suffered injuries

Her case was designated as a Phase IV-9 case,

and the parties completed plaintiff-specific discovery on March
13, 2017.
DISCUSSION
Richardson argues that her claims against Mentor in this
action

are

timely

because

she

filed

a

separate

action

in

Missouri state court before the statute of limitations expired.
Richardson did not cite any authority for the proposition that a
court in determining whether an action is timely may look to the
filing date in a separate action in a different court.

As

Richardson appears to acknowledge, her August 2015 Complaint in
this action is not an amended pleading that relates back to her
2013 Missouri state court complaint that was transferred to the
Ethicon MDL.

See Pl.’s Resp. to Def.’s Mot. for Summ. J. 5, ECF

No. 18 in 4:15-cv-140 (M.D. Ga. June 5, 2017) (agreeing that the
relation-back doctrine of Federal Rule of Civil Procedure 15(c)
is “inapplicable”).

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Richardson

does

argue

that

the

tolling applies to save her claims.

doctrine

of

equitable

Equitable tolling is an

extraordinary remedy that is only appropriate “when a movant
untimely files because of extraordinary circumstances that are
both beyond [her] control and unavoidable even with diligence.”
Stamper v. Duval Cty. Sch. Bd., No. 15-11788, 2017 WL 3033148,
at

*4

(11th

Cir.

July

18,

2017)

(alteration

in

original)

(quoting Sandvik v. United States, 177 F.3d 1269, 1271 (11th
Cir. 1999); accord Adams v. Div. of Employment Sec., 353 S.W.3d
668, 673 (Mo. Ct. App. 2011) (“The doctrine of equitable tolling
permits a plaintiff to toll a statute of limitations where ‘the
defendant has actively misled the plaintiff respecting the cause
of action, or where the plaintiff has in some extraordinary way
been prevented from asserting his rights, or has raised the
precise statutory claim in issue but has mistakenly done so in
the wrong forum.’”) (quoting Ross v. Union Pac. R.R. Co., 906
S.W.2d 711, 713 (Mo. banc 1995)).
Richardson argues that she was “prevented from pursuing”
her

claims

against

Mentor

because

transferred to the Ethicon MDL.
Summ. J. 7, 9.

her

initial

action

was

Pl.’s Resp. to Def.’s Mot. for

But Richardson did not point to any evidence to

show that she was prevented from pursuing her claims in the
Ethicon MDL.

Furthermore, once Richardson determined that she

had been implanted with ObTape and that at least some of her

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injuries were causally connected to that product, she could have
asked the judge in the Ethicon MDL to sever her claims against
Mentor

and

suggest

that

they

be

transferred

to

this

MDL.

Instead, she filed a separate action in this Court and, as far
as the Court can tell, did nothing to pursue her claims in the
Ethicon MDL.

The Court declines to apply the extraordinary

remedy of equitable tolling under these circumstances.
In

summary,

although

Richardson

filed

an

action

against

Mentor within Missouri’s statute of limitations, she did not
file

this

action

within

Missouri’s

statute

of

limitations.

Thus, Mentor is entitled to summary judgment on Richardson’s
claims in this action.

The Court notes that Richardson may

still be able to pursue her claims against Mentor, traveling
under her original 2013 Complaint, but she will have to convince
the

U.S.

Virginia

District
to

reopen

Court

for

her

the

case,

Southern

reinstate

District

her

claims

of

West

against

Mentor, and suggest that the action be remanded to the U.S.
District Court for the Eastern District of Missouri.

IT IS SO ORDERED, this 16th day of August, 2017.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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