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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 Gladys Martinez was implanted with ObTape and asserts that she suffered injuries caused by ObTape. Martinez brought a product liability action against Mentor, contending that ObTape had design and manufacturing defects that proximately caused her injuries. Martinez also asserts that Mentor did not adequately warn her physicians about the risks associated with ObTape.

         The parties agree that California's statutes of limitations apply to Martinez's claims. The parties, however, do not agree on when Martinez's claims accrued under California law. According to Mentor, Martinez's claims accrued by the time she had her fourth revision surgery in March 2008. Martinez argues that her claims did not accrue until 2013, when based on a lawyer advertisement she began to suspect that her injuries were caused by Mentor's “wrongdoing.” The Court has previously indicated that if the parties disagreed on the state law statute of limitations standard, the Court would “likely suggest remand of each such action back to the transferor court.” Mar. 14, 2017 Order at 11, ECF No. 1081 in 4:08-md-2004. Based on the disagreement between the parties in this case, the Court suggests that this action be remanded to the transferor court, the U.S. District Court for the Southern District of West Virginia.

         Martinez filed this action on June 18, 2013 by filing a short form complaint in In Re: Coloplast Corp. Pelvic Support System Products Liability Litigation, MDL No. 2387. The Judicial Panel on Multidistrict Litigation transferred the case to this MDL for pretrial proceedings. Although Martinez requests that this action be remanded to the U.S. District Court for the Northern District of California, the Court suggests that this action be remanded to the district where the case originated: the U.S. District Court for the Southern District of West Virginia. This Order contains a brief chronicle of the coordinated proceedings to provide guidance to that court. If the parties wish to seek transfer to the U.S. District Court for the Northern District of California, they should do so after this action is remanded.

         CONCLUSION

         Given the parties' dispute on the applicable statute of limitations standard, the Court declines to rule on Mentor's summary judgment motion (ECF No. 23 in 4:16-cv-348). Instead, in accordance with its previous order regarding statute of limitations issues, the Court grants Martinez's motion for suggestion of remand (ECF No. 24 in 4:16-cv-348) and suggests that this action be remanded to the U.S. District Court for the Southern District of West Virginia. The Court observes that all discovery has been completed, and this case is ready for trial if the pending motion for summary judgment is denied. 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 Filings in MDL No. 2004

         These filings are, for the most part, evidentiary rulings that were made in the context of the bellwether cases that were tried in this Court; these issues may arise again.

         1. Order Denying Motion to Disqualify Expert Witness Dr. Catherine Ortuno, Apr. 1, 2010. ECF No. 231 in 4:08-md-2004; 2010 WL 1416548.

Summary: Mentor sought to exclude the testimony of Dr. Catherine Ortuno, who was an employee of a French Mentor subsidiary called Porges. While she was employed by Porges, Dr. Ortuno and a colleague developed concerns about the safety of ObTape and ultimately recommended that sales of ObTape be stopped. The Court concluded that Dr. Ortuno would be permitted to serve as an expert witness for Plaintiffs but that she would not be permitted to offer any testimony that would divulge privileged, attorney-client communications.

         2. Order on Phase I Summary Judgment Motions and Admissibility of Plaintiffs' Experts, Apr. 22, 2010. ECF No. 241 in 4:08-md-2004; 711 F.Supp.2d 1348.

Summary: Mentor sought to exclude Plaintiffs' experts under Federal Rule of Evidence 702.
Dr. Catherine Ortuno - motion denied; the Court found that Dr. Ortuno's methodology was sufficiently reliable.
General Causation Witnesses (Dr. Linda Brubaker, Dr. Suzanne Bush, Dr. Michel Cosson, Dr. John Davis, Dr. James Hiller, Dr. Mickey Karram, Dr. Kenneth Mitchell, Dr. Donald Ostergard, Dr. William Porter, and Dr. Andrew Siegel) - motion denied; the Court found that ...

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