United States District Court, M.D. Georgia, Columbus Division
IN RE MENTOR CORP. OBTAPE TRANSOBTURATOR SLING PRODUCTS LIABILITY LITIGATION
D. LAND CHIEF U.S. DISTRICT COURT JUDGE.
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
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.
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.
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.
Clerk of Court is directed to provide a copy of this Order to
the Clerk of the Judicial Panel on Multidistrict Litigation.
Brief Background of the Mentor ObTape MDL
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.
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
Significant Filings in MDL No. 2004
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.
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.
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
General Causation Witnesses
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 ...