RICHARDSON v. MENTOR CORPORATION
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
IN RE MENTOR CORP. OBTAPE
TRANSOBTURATOR SLING PRODUCTS
MDL Docket No. 2004
4:15-cv-140 (S. Richardson)
O R D E R
Plaintiff Susan Richardson claims that she suffered damages
Mentor also agree that Richardson’s claims accrued on September
And Richardson and Mentor agree that Richardson was
required to file her claims against Mentor by September 10,
She filed this action on August 19, 2015.
its face, her Complaint in this action is untimely.
against Mentor in a different court before September 10, 2013,
As discussed below, the Court disagrees
Mentor’s summary judgment motion (ECF Nos. 14 & 17).
On July 15, 2013, Richardson and more than seventy other
Mentor and more than twenty other manufacturers of pelvic mesh
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.
Mentor consented to
Eastern District of Missouri, and then the Judicial Panel on
Multidistrict Litigation transferred the action to MDL No. 2327,
District Court for the Southern District of West Virginia.
August 4, 2015, the claims of all of the other plaintiffs were
claims against multiple defendants remained pending.
Order #189, ECF No. 59 in 2:14-cv-27205 (S.D.W.V. Aug. 4, 2015).
no activity in that action until
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).
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).
pending in the Ethicon MDL, Richardson filed an action in this
the Mentor MDL
caused by ObTape.
she suffered injuries
Her case was designated as a Phase IV-9 case,
and the parties completed plaintiff-specific discovery on March
Richardson argues that her claims against Mentor in this
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.
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
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)
tolling applies to save her claims.
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,
(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”
transferred to the Ethicon MDL.
Summ. J. 7, 9.
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
Furthermore, once Richardson determined that she
had been implanted with ObTape and that at least some of her
injuries were causally connected to that product, she could have
asked the judge in the Ethicon MDL to sever her claims against
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
The Court declines to apply the extraordinary
remedy of equitable tolling under these circumstances.
Mentor within Missouri’s statute of limitations, she did not
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
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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