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In re Mentor Corp. ObTape Transobturator Sling Products Liability Litigation

United States District Court, M.D. Georgia, Columbus Division

October 20, 2017

IN RE MENTOR CORP. OBTAPE TRANSOBTURATOR SLING PRODUCTS LIABILITY LITIGATION

          ORDER

          CLAY D. LAND CHIEF U.S. DISTRICT COURT JUDGE.

         Defendant Mentor Worldwide LLC developed a suburethral sling product called ObTape Transobturator Tape, which was used to treat women with stress urinary incontinence. Plaintiff Gayle Kampe was implanted with ObTape and asserts that she suffered injuries caused by ObTape. Kampe brought this product liability action against Mentor, contending that ObTape had design and/or manufacturing defects that proximately caused her injuries. Kampe also asserts that Mentor did not adequately warn her physicians about the risks associated with ObTape. Mentor contends that Kampe's claims are barred by the applicable statute of limitations. For the reasons set forth below, Mentor's Motion for Summary Judgment (ECF No. 5 in 4:16-cv-300) is granted as to Kampe's breach of warranty claims but denied as to her other claims.

         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.” Fed.R.Civ.P. 56(a). In determining whether a genuine 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. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 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 Kampe, the record reveals the following. Kampe sought treatment for stress urinary incontinence from Dr. Francisco Garcini. Dr. Garcini recommended ObTape, and he implanted Kampe with ObTape on December 29, 2004. After the procedure, Kampe could not urinate but was released from the hospital with a self-catheter. On January 4, 2005, Kampe presented to Dr. Garcini complaining of pelvic pain and difficulty moving her legs. Dr. Garcini did not find the source of these problems. A few days later, Kampe went to the emergency room with similar symptoms. And on January 9, 2005-less than two weeks after the implant surgery-Dr. Garcini found a vulvar induration consistent with infection. He removed Kampe's ObTape and drained an abscess. Although Dr. Garcini testified that he told Kampe her ObTape was removed due to an infection, Kampe does not remember Dr. Garnici telling her that the ObTape had been removed. All of Kampe's ObTape-related treatment occurred in Illinois, and Kampe was a citizen of Illinois when she filed this action.

         Kampe filed her Complaint on August 30, 2016. See generally Compl., ECF No. 1 in 4:16-cv-300. Kampe asserts claims for personal injury under the following theories: negligence, strict liability design defect, strict liability manufacturing defect, strict liability failure to warn, breach of express and implied warranties, fraudulent misrepresentation, fraudulent concealment, and negligent misrepresentation. Kampe withdrew her warranty claims in response to Mentor's summary judgment motion, so Mentor's summary judgment motion is granted on those claims.

         DISCUSSION

         Kampe filed her action in this Court under the Court's direct filing order. The parties agree 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 Illinois choice-of-law rules thus apply, and the parties agree that Illinois law applies to Kampe's claims because Kampe is an Illinois resident whose ObTape-related treatment took place in Illinois.

         Kampe's tort claims “are governed by the two-year statute of limitations applicable to personal injury claims.” Curtis v. Mentor Worldwide, LLC, 543 F. App'x 901, 903 (11th Cir. 2013) (per curiam) (citing 735 Ill. Comp. Stat. 5/13-202). “The ‘discovery rule' in Illinois delays the commencement of the applicable statute of limitations until the plaintiff knows or reasonably should know that he has been injured and that his injury was wrongfully caused.” Id. (citing Hermitage Corp. v. Contractors Adjustment Co., 651 N.E.2d 1132, 1137 (Ill. 1995)). “The phrase ‘wrongfully caused' does not mean knowledge of a specific defendant's negligent conduct or knowledge of the existence of a cause of action.” Id. (quoting Castello v. Kalis, 816 N.E.2d 782, 789 (Ill.App.Ct. 2004)). Rather, the phrase means that the injured party “becomes possessed of sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved.” Id. (quoting Castello, 816 N.E.2d at 789).

         Here, Mentor contends that Kampe knew her injury may have been wrongfully caused less than two weeks after her implant surgery because her doctor had to remove the ObTape due to an infection. But there is no evidence in the present record that the removal surgery was necessitated by an erosion or infection of the ObTape as opposed to some other surgical complication that caused Kampe to be unable to urinate after the implant surgery and ultimately caused an abscess near the incision site. A genuine factual dispute exists as to whether ObTape was the mechanism that contributed to the complications Kampe suffered almost immediately after the implant surgery.

         The Court's decision in Curtis v. Mentor Worldwide, LLC, which was affirmed by the Eleventh Circuit, is distinguishable. In that case, the plaintiff suffered a vaginal erosion several months after her implant surgery, and she underwent a partial excision of her sling. Curtis, 543 F. App'x at 902. Months later, the plaintiff developed a deep infection in her leg and had to have her entire ObTape removed. She knew at the time that “her infection and related problems had something to do with the ObTape sling, and she had the sling removed.” Id. at 903-04. At that time, the plaintiff “was obligated to begin her inquiry as to who manufactured her sling and whether her complications were due to a problem with the surgery or a defective sling.” Id.

         Here, unlike in Curtis, there is a fact question as to whether Kampe's infection had something to do with her ObTape. If a reasonable jury could only conclude from the present record that the infection near the incision site shortly after Kampe's surgery was connected to ObTape, then the Court would likely find as a matter of law that Kampe's claim accrued on the date of the excision surgery. But that is not what the present record establishes. A reasonable jury could conclude that ObTape caused the infection near the surgical site. But Mentor did not point to sufficient evidence for the Court to exclude the reasonable possibility that the infection was unrelated to the ObTape, or that the surgical procedure itself contributed to the problems Kampe suffered. For these reasons, a genuine factual dispute exists as to when Kampe suffered an ObTape-related physical injury that would commence the running of the statute of limitations under Illinois law. Thus, the Court cannot find as a matter of law that Kampe's claim accrued when Kampe had the excision surgery in 2005.[1] Mentor is therefore not entitled to summary judgment on statute of limitations grounds.

         CONCLUSION

         For the reasons set forth above, Mentor's Motion for Summary Judgment (ECF No. 5 in 4:16-cv-300) is granted as to Kampe's breach of warranty claims but denied as to her other claims.

         TRANSFER OF ACTION

         Kampe filed this action pursuant to the Court's Direct Filing Order in MDL No. 2004. See Order Regarding Direct Filing § II(A), ECF No. 446 in 4:08-md-2004 (permitting plaintiffs from outside the Middle District of Georgia whose cases “would be subject to transfer to MDL No. 2004” to file their cases “directly in the MDL proceedings in the Middle District of Georgia”). The action was “filed in MDL No. 2004 for pretrial proceedings only, consistent with the Judicial Panel on Multidistrict Litigation's December 3, 2008, Transfer Order.” Id. § II(B). All discovery has been completed, and this case is ready for trial.

         Given that Mentor has not elected to waive venue under Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998) since early 2016, the Court finds it appropriate to transfer this action to the court where venue is proper, the U.S. District Court for the Northern District of Illinois. See Compl. ¶ 1, ECF No. 1 (“Plaintiff is now and was at all times herein mentioned a citizen and resident of the State of Illinois, residing in Plainfield, Illinois.”). For the convenience of that court, the appendix to this Order contains a brief chronicle of the coordinated proceedings, as well as a list of significant filings and orders in MDL No. 2004.

         The Clerk of Court is directed to provide a copy of this Order to the Clerk of the Judicial Panel on Multidistrict Litigation.

         IT IS SO ORDERED.

         APPENDIX

         I. Brief Background of the Mentor ObTape MDL

         Mentor Worldwide LLC manufactured and sold a polypropylene mesh suburethral sling product called ObTape Transobturator Tape, which was used to treat women with stress urinary incontinence. The United States Food and Drug Administration cleared ObTape for sale in 2003 via its 510(k) regulatory process, and ObTape remained on the market in the United States until March 2006.

         About ten years ago, women who had been surgically implanted with ObTape began filing lawsuits against Mentor, alleging that they had been injured by ObTape-primarily that they suffered infections caused by ObTape and that they were injured when ObTape eroded through their bodily tissues. In December 2008, the Judicial Panel on Multidistrict Litigation created MDL No. 2004 and transferred seventeen actions involving alleged injuries resulting from ObTape to this Court for consolidated and coordinated pretrial proceedings. See In re Mentor Corp. ObTape Transobturator Sling Products Liability Litigation, 588 F.Supp.2d 1374 (J.P.M.L. 2008). After pretrial proceedings and a bellwether trial that settled mid-trial, the original cases and approximately forty additional tag-along cases transferred to this Court were resolved through settlement. Since then, MDL No. 2004 has grown to include more than 800 additional tag-along cases, although only a few remain open. The litigation was divided into phases, and cases from phase IV-10 are still pending. In 2013, the Court tried a Phase III bellwether case to verdict. In 2016, the Court tried a Phase IV-1 bellwether case to verdict.

         II. Significant ...


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