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In re Mentor Corp. ObTape Transobturator Sling Products Liability Litigation

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

April 17, 2018

IN RE MENTOR CORP. OBTAPE TRANSOBTURATOR SLING PRODUCTS LIABILITY LITIGATION

          ORDER

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

         Based 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 Hampton v. Mentor Corp., No. 17-10160, 2018 WL 1020038 (11th Cir. Feb. 22, 2018) (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.

         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 grew 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.

         II. Overview of Plaintiff's Case

         Plaintiff 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-7 case, and plaintiff-specific discovery closed in September 2016.

         Mentor 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.[1] Hampton, 2018 WL 1020038, at *3. All common discovery and coordinated pretrial proceedings in this case are complete, and the case is ready for trial.

         CONCLUSION

         As 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 Multidistrict Litigation.

         IT IS SO ORDERED.

         APPENDIX

         Significant filings and orders in this case and in MDL No. 2004:

         I. Significant Filings Specific to Plaintiff

         1. Complaint, ECF No. 1-1 in 4:14-cv-78.

         2. Answer with Jury Demand, ECF No. 5 in 4:14-cv-78.

         3. Summary Judgment Motion, ECF No. 32 in 4:14-cv-78.

         4. Summary Judgment Response, ECF No. 33 in 4:14-cv-78.

         5. Summary Judgment Reply, ECF No. 34 in 4:14-cv-78.

         6. Order Granting Summary Judgment, ECF No. 36 in 4:14-cv-78 (reversed by Eleventh Circuit).

         7. Eleventh Circuit Opinion Reversing Grant of Summary Judgment, ECF No. 47 in 4:14-cv-78.

         8. Order of Clarification following Eleventh Circuit's Opinion in Rogers v. Mentor Corp., No. 16-10119, 2017 WL 928497 (11th Cir. Mar. 9, 2017): 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).

         II. Other Relevant Filings

         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 ...


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