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
on its interpretation of Minnesota law, the Eleventh Circuit
Court of Appeals concluded that genuine fact disputes exist
in this case, thus precluding summary judgment. See
generally Alvarado v. Mentor Corp., No. 16-16600, 2017
WL 5495459 (11th Cir. Nov. 16, 2017) (per curiam). This case
was transferred from the U.S. District Court for the District
of Minnesota to this MDL for pretrial proceedings. The
pretrial proceedings are complete, and the 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 suggest that this action be remanded
to the U.S. District Court for the District of Minnesota.
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 nearly all of them are now closed. 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.
Overview of Plaintiff's Case
alleges that she suffered injuries that she attributes to
ObTape. Plaintiff filed her lawsuit in Minnesota state court,
and Mentor removed the action to the U.S. District Court for
the District of Minnesota. The action was transferred to this
MDL for consolidated and coordinated pretrial proceedings.
Plaintiff's action was designated as a Phase IV-6 case,
and plaintiff-specific discovery closed in June 2016.
contends that Plaintiff's claims are time-barred under
Minnesota's statute of limitations. Based on its
interpretation of Minnesota law, the Eleventh Circuit
concluded that there is a genuine fact dispute on when
Plaintiff's claims accrued, thus precluding summary
judgment on statute of limitations grounds.
Alvarado, 2017 WL 5495459, at *4. All common
discovery and coordinated pretrial proceedings in this case
are complete, and the case is ready for trial.
discussed above, the Court suggests that this action be
remanded to the U.S. District Court for the District of
Minnesota. For the convenience of that court, the Court
compiled a list of significant filings and orders in this
case and in MDL No. 2004. That list appears as an appendix to
this Order. The Clerk of Court is directed to provide a copy
of this Order to the Clerk of the Judicial Panel on
SO ORDERED, this.
filings and orders in this case and in MDL No. 2004:
Significant Filings Specific to Plaintiff
Complaint, ECF No. 1-1 in 4:13-cv-370.
Answer with Jury Demand, ECF No. 10 in 4:13-cv-370.
Summary Judgment Motion, ECF No. 39 in 4:13-cv-370.
Summary Judgment Response, ECF No. 40 in 4:13-cv-370.
Summary Judgment Reply, ECF No. 41 in 4:13-cv-370.
Order Granting Summary Judgment, ECF No. 43 in 4:13-cv-370
(reversed by Eleventh Circuit).
Eleventh Circuit Opinion Reversing Grant of Summary Judgment,
ECF No. 50 in 4:13-cv-370.
Order of Clarification following Eleventh Circuit's
Opinion, In re Mentor Corp. ObTape Transobturator Sling
Prod. Liab. Litig., No. 4:08-MD-2004 (CDL), 2017 WL
987457, at *1 (M.D. Ga. Mar. 14, 2017).
Other Relevant Filings
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 ...