Riley v. Mentor Worldwide LLC, No. 4:2011cv05066 - Document 68 (M.D. Ga. 2013)
Court Description: ORDER denying 62 Motion for Summary Judgment. Ordered by Judge Clay D. Land on 01/24/2013. (CGC)
Download PDF
<![CDATA[
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION IN RE MENTOR CORP. OBTAPE * TRANSOBTURATOR SLING PRODUCTS * LIABILITY LITIGATION MDL Docket No. 2004 4:08-MD-2004 (CDL) Case No. 4:11-cv-5066 (K. Riley) * O R D E R Defendant suburethral Mentor sling Worldwide product LLC called (“Mentor”) ObTape developed Transobturator a Tape (“ObTape”), which was used to treat women with stress urinary incontinence. Plaintiff Kathleen Riley (“Riley”) was surgically implanted with ObTape. She alleges that she suffered serious injuries caused by ObTape’s design and/or manufacturing defects. Riley also claims that Mentor failed to provide adequate warnings to her physicians about the risks associated with ObTape. seeks to dismiss Counts I, II and III of Riley’s Mentor Complaint because she labeled those claims as “strict liability” claims, which are not recognized under Massachusetts law, “breach of warranty” claims, which are recognized. instead of Mentor also maintains that it is entitled to summary judgment as to all of Riley’s claims because Riley has failed to point to sufficient evidence to create a genuine factual dispute as to whether the alleged ObTape defects proximately caused her injuries. For the reasons set forth below, the Court finds that Mentor’s arguments are without merit, and Mentor’s Motion for Summary Judgment (ECF No. 62 in 4:11-cv-5066) is denied. 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.” P. 56(a). Fed. R. Civ. In determining whether a genuine dispute of material fact exists to defeat a motion for summary judgment, the evidence is viewed summary in the judgment, light most drawing opposing party’s favor. U.S. 242, 255 (1986). favorable all to justifiable the party opposing inferences in the Anderson v. Liberty Lobby, Inc., 477 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 Riley, the record reveals the following. Riley, a resident of Massachusetts, was surgically implanted with ObTape in Massachusetts and received all of her subsequent related treatment there. She first consulted with a urologist in 2005 because she had problems with incontinence. 2005, the performed urologist another surgically surgical implanted procedure. 2 On May 16, ObTape Riley’s and also incontinence symptoms improved after the surgery, but in August 2010, Riley returned to the urologist incontinence had gotten worse. complaining that her stress In September 2010, the urologist examined Riley and discovered a urethral erosion of the ObTape. The next month, the urologist performed surgery to remove the eroded ObTape excision and surgery, complications. repair Riley the urethral continued to erosion. experience After the significant She underwent an additional surgery in February 2011 and continues to experience stress incontinence and other symptoms. DISCUSSION Riley initially filed her action in this Court, but the Court found that venue was improper and transferred the case to the United States District Court for the District Massachusetts, where it should have been filed initially. Judicial Panel on Multidistrict Litigation transferred of The Riley’s diversity action from the United States District Court for the District of proceedings. Massachusetts The Court back applies to this the Court for choice-of-law pretrial rules of Massachusetts, the transferor forum, to determine which state law controls. See In re Volkswagen & Audi Warranty Extension Litig., 692 F.3d 4, 17 (1st Cir. 2012) (“Where a suit is consolidated and transferred under [28 U.S.C.] § 1407, courts typically apply the choice of law rules of each of the transferor courts.”); see also 3 Murphy v. Fed. Deposit Ins. Corp., 208 F.3d 959, 965 (11th Cir. 2000) (“Our system contemplates differences between different states’ laws; thus a multidistrict judge asked to apply divergent state positions on a point of law would face a coherent, if sometimes difficult, task.”) (internal quotation marks omitted). Riley and Mentor agree that Massachusetts law applies to Riley’s claims because Riley is a resident of Massachusetts and received all medical treatment relevant to this action in Massachusetts. See Cosme v. Whitin Mach. Works, Inc., 632 N.E.2d 832, 834 (Mass. 1994) (noting that Massachusetts typically applies “the substantive laws of the jurisdiction wherein the tort occurred”). I. Are Riley’s “Strict Massachusetts Law? Liability” Claims Cognizable Under Mentor argues that Counts I, II and III of Riley’s Complaint should be dismissed because they are labeled as “strict liability” claims, and Massachusetts does not recognize product liability claims based on strict liability. Mentor is correct that Massachusetts law does not recognize strict liability in tort; however, Massachusetts does claims based on breach of warranty. recognize product liability See Mass. Gen. Laws ch. 106, § 2-318; Swartz v. Gen. Motors Corp., 378 N.E.2d 61, 62 (Mass. 1978); accord Mason v. Gen. Motors Corp., 490 N.E.2d 437, 442 (Mass. 1986). “transformed Moreover, warranty the liability into 4 Massachusetts a remedy legislature intended to be fully as comprehensive as the strict liability theory of recovery that has been adopted by a great many other jurisdictions.” v. Wickes Corp., Massachusetts 378 Supreme N.E.2d 964, Judicial 968 Court (Mass. Back 1978). observed The that the legislature “has made the Massachusetts law of warranty congruent in nearly all respects with the [strict liability] principles expressed in Restatement (Second) of Torts § 402A.” Id. at 969; accord Cigna Ins. Co. v. OY Saunatec, Ltd., 241 F.3d 1, 15 (1st Cir. 2001) (“Actions under Massachusetts law for breach of the implied warranty of merchantability are the functional equivalent of strict liability Accordingly, in Massachusetts other jurisdictions regards strict . . liability . .”). cases of other jurisdictions as persuasive authority in considering cases under Massachusetts warranty law. See, e.g., Back, 378 N.E.2d at 969 (“[W]e find the strict liability cases of other jurisdictions to be a useful supplement to our own warranty case law.”).1 The Court rejects Mentor’s argument that Riley’s claims must be dismissed simply because they are labeled as “strict liability” claims instead of claims for “breach of warranty.” Instead, the Court must examine the factual allegations to determine whether they state claims for breach of warranty under Massachusetts law. 1 Although there are a few distinctions between traditional strict liability law and the Massachusetts law of warranty, those differences are not relevant to the pending motion. 5 Riley makes Complaint. three “strict claims in her First, she asserts a claim for “strict liability – defective manufacture.” She liability” alleges unreasonably that Compl. 4, ECF No. 1 in 4:11-cv-5066. ObTape dangerous to “was defective the user or in manufacture consumer when it and left [Mentor’s] possession or control in that it deviated materially from [Mentor’s] design and manufacturing specifications in such a manner as to pose an unreasonable risk of serious bodily harm to [Riley]. Id. ¶ 15, ECF No. 1. Second, Riley asserts a claim for “strict liability – defective design.” Id. at 5. She alleges that ObTape “was defective in design in that at the time it left [Mentor’s] control, the foreseeable risks of harm associated with its design exceeded the benefits associated with said design.” Id. ¶ 21. Third, Riley asserts a claim for “strict liability – inadequate warning or instruction.” Mentor failed manufacturer to provide exercising the Id. at 7. “warning reasonable care or She alleges that instruction should have that a provided” regarding ObTape at the time it left Mentor’s control and that Mentor did not provide the post-sale warnings that a reasonable manufacturer would have provided complications in ObTape patients. after learning of numerous Id. ¶¶ 30-31. The question is whether these allegations support claims for breach of warranty under Massachusetts law. According to the Massachusetts courts, “the propensities of the product as sold” 6 must be compared “with those which the product’s designer intended it to have” and decide whether a “deviation from the design rendered the product unreasonably dangerous and therefore unfit for its ordinary purposes.” Court interprets this type Back, 378 N.E.2d at 970. of breach of warranty claim encompass a breach caused by a manufacturing defect. certainly alleges that a manufacturing unreasonably dangerous for users. defect The to And Riley rendered ObTape Compl. ¶ 15 (alleging that ObTape “was defective in manufacture and unreasonably dangerous to the user or consumer when it left [Mentor’s] possession or control in that it deviated materially from [Mentor’s] design and manufacturing specifications unreasonable risk of in serious such a bodily manner harm as to to pose an [Riley]”). Therefore, based on Riley’s factual allegations, Mentor was on notice that Riley’s manufacturing defect claim fell within The same is true for Riley’s design defect claim. Under Massachusetts warranty law. Massachusetts warranty law, “a manufacturer must anticipate the environment in which its product will be used, and it must design against the reasonably foreseeable risks attending the product’s use in that setting.” Back, 378 N.E.2d at 969. In evaluating a design defect claim under Massachusetts warranty law, it must be determined whether the product’s propensities that resulted “from conscious design choices of the manufacturer rendered the product 7 unreasonably factors dangerous must be to its considered users.” to Id. evaluate at the 970. Several adequacy of a product’s design, including “‘the gravity of the danger posed by the challenged design, the likelihood that such danger would occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design.’” Id. (quoting Barker v. Lull Eng’g Co., 573 P.2d 443, 455 (Cal. 1978) (explaining factors for strict liability design defect claims under California law)). Riley alleges that a design defect made ObTape unreasonably dangerous for users. design in Compl. ¶ 21 (alleging that ObTape “was defective in that at the time it left [Mentor’s] control, the foreseeable risks of harm associated with its design exceeded the benefits associated with said design”). Therefore, based on Riley’s factual allegations, Mentor was on notice that Riley’s design defect claim was cognizable as a breach of warranty claim under Massachusetts law. Finally, Riley’s failure to warn claim likewise states a claim under Massachusetts warranty law. Under Massachusetts warranty law, a manufacturer must warn or provide instructions about risks that are “reasonably foreseeable at the time of sale or could have been discovered by way of reasonable testing.” Vassallo v. Baxter Healthcare Corp., 696 N.E.2d 909, 923 (Mass. 8 1998). In addition, a manufacturer is “subject to a continuing duty to warn (at least purchasers) of risks discovered following the sale of the product.” Id. In her Complaint, Riley alleges that Mentor failed to provide the warning or instruction “that a manufacturer exercising reasonable care would have provided” regarding ObTape at the time it left Mentor’s control. ¶ 30. Compl. Riley also asserts that Mentor did not provide the post- sale warnings that a reasonable manufacturer would have provided to its purchasers after learning of numerous complications in ObTape patients. Id. ¶ 31. Therefore, based on Riley’s factual allegations, Mentor was on notice that Riley’s failure to warn claim would be cognizable under Massachusetts warranty law. Riley’s counsel could have likely avoided this unnecessary layer of litigation by crafting the Complaint in a manner that carefully followed the precise language of Massachusetts law, but failure to label the causes of action more accurately does not warrant dismissal of those claims when the factual allegations state claims under Massachusetts law. Accordingly, Mentor’s summary judgment motion based on Riley’s failure to label the claims as “warranty” claims is denied. II. Did Riley Point to Sufficient Evidence of Causation? Mentor argues that Riley has failed to point to sufficient evidence that a defect in ObTape caused her injuries. of this argument, Mentor In support relies primarily upon the fact that 9 Riley suffered a urethral, instead of vaginal, erosion of the ObTape. It is undisputed that urethral erosions of ObTape are not as common as vaginal erosions. erosions focuses are on commonly the acknowledged fact that the result that she Mentor asserts that urethral of Riley’s could not surgical expert, point error. Dr. to Mentor Amanda any White, literature documenting an increased risk of urethral erosion with ObTape as compared to other mesh products. Mentor’s motion on causation is therefore akin to a motion to exclude Dr. White’s testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The only ground Mentor asserts for excluding Dr. White’s testimony is that Dr. White did not locate more than one article regarding a specific urethral erosion. topic (or necessarily a subset of ObTape erosion complications— The lack of published studies on a specific specific subset dispositive minimally reliable. of of that whether topic), an however, expert’s is not testimony is United Fire & Cas. Co. v. Whirlpool Corp., No. 11-15011, 2013 WL 174064, at *4 (11th Cir. Jan. 17, 2013); accord Daubert, 509 U.S. at 593 (“Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability[.]”). Here, the on Court subset of concludes ObTape that erosion the lack of published complications White’s testimony unreliable. does studies not render a Dr. Mentor has pointed to no other 10 grounds for excluding Dr. White’s testimony, and the Court will therefore consider her testimony. Based on the Court’s previous findings and on the testimony of Dr. White, the Court finds that it cannot decide the causation issue as a matter of law. To do so, the Court would have to conclude that no reasonable juror could find that the erosion of the ObTape through Riley’s urethra was caused by a manufacturing or design defect in ObTape. The Court has previously concluded that a genuine fact dispute exists as to whether there is an increased risk of complications such as erosion and infection with ObTape as compared to other mesh products. In re Mentor Corp. ObTape Transobturator Sling Prods. Liab. Litig., 711 F. Supp. 2d 1348, 1369-71 (M.D. Ga. 2010). that a genuine propensity to fact question degrade that exists renders implantable material. Id. at 1374-75. The Court also concluded on whether it ObTape unsuitable has as a an Mentor has presented no basis for having the Court reconsider these previous findings. Mentor simply argues that the fact that the ObTape eroded through the urethra instead of the vagina makes all the difference. argument ignores the testimony of Dr. White. This When Dr. White’s testimony is construed with all reasonable inferences drawn in Riley’s favor, it establishes for purposes of summary judgment that the same allegedly defective qualities of ObTape that cause it to erode into the vagina likewise cause the erosion into the 11 urethra. erosion Specifically, Dr. White testified that “[t]he rate of in general increased.” 5066. due to the properties of the ObTape are White Dep. 61:1-2, ECF No. 62-6 at 11 in 4:11-cv- She further testified that whether ObTape “erodes into the vagina or whether irrelevant.” it erodes Id. at 61:3-5. into the urethra . . . is Finally, Dr. White testified, “I think we can take from the literature that the increased risk of vaginal erosions portends an increased risk of urethral erosions with [ObTape].” Id. at 61:10-12. Based on this evidence, the Court finds that a genuine fact dispute exists as to whether a defect in ObTape caused Riley’s injuries. Mentor’s summary judgment motion on the causation issue is therefore denied. CONCLUSION For the reasons set forth above, Mentor’s Motion for Summary Judgment as to Kathleen Riley (ECF No. 62 in 4:11-cv-5066) is denied. IT IS SO ORDERED, this 24th day of January, 2013. S/Clay D. Land CLAY D. LAND UNITED STATES DISTRICT JUDGE 12
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
