BERGIN et al v. MENTOR WORLDWIDE LLC et al, No. 4:2013cv00135 - Document 44 (M.D. Ga. 2016)

Court Description: ORDER granting (40) Motion for Summary Judgment in case 4:13-cv-00135-CDL; granting (45) Motion for Summary Judgment in case 4:13-cv-00144-CDL. Ordered by US DISTRICT JUDGE CLAY D LAND on 04/14/2016. (CCL)
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BERGIN et al v. MENTOR WORLDWIDE LLC et al Doc. 44 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 Nos. * 4:13-cv-135 (Bergin) 4:13-cv-144 (Fudge) * O R D E R Defendant Mentor Worldwide LLC developed a suburethral sling product called ObTape Transobturator Tape, which was used to treat women with stress urinary incontinence. Plaintiffs Ann Marie Bergin and Wendy Fudge were implanted with ObTape and assert that they suffered injuries caused by ObTape. Plaintiffs brought contending that product ObTape had liability design actions and/or proximately caused their injuries. against Mentor, manufacturing defects that Plaintiffs also assert that Mentor did not adequately warn their physicians about the risks associated with ObTape. Mentor seeks summary judgment on Plaintiffs’ claims, contending that they are time-barred under Texas law. For the reasons set forth below, Mentor’s summary judgment motions (ECF No. 40 in 4:13-cv-135 and ECF No. 45 in 4:13-cv-144) are granted. 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 Dockets.Justia.com movant is entitled to judgment as a matter of law.” Civ. P. 56(a). In determining whether a genuine Fed. R. dispute of material fact exists to defeat a motion for summary judgment, the evidence is viewed in the light most favorable to the party opposing summary judgment, drawing all justifiable inferences in the opposing party’s favor. 477 U.S. 242, 255 (1986). Anderson v. Liberty Lobby, Inc., 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 I. Ann Marie Bergin Dr. Keith Grisham diagnosed Ann Marie Bergin with stress urinary incontinence and other medical issues. 2005, Dr. Grisham implanted Bergin with On September 7, ObTape. In late December, Bergin noticed a vaginal opening with bleeding, and in March 2006 Dr. Grisham found that Bergin’s sling was exposed. Dr. Grisham told Bergin that her sling was exposed and that one of her treatment options was to undergo a surgical excision procedure. exposed Dr. Grisham surgically removed a piece of Bergin’s ObTape on March 22, 2006. Bergin continued experience bloody discharge, as well as granulated tissue. to Dr. Grisham surgically excised Bergin’s granulated tissue, as well as some infected mesh, on September 13, 2006. 2 Dr. Grisham told Bergin that he found and removed infected mesh material during the procedure and that he expected her symptoms to improve. Bergin’s bleeding and discharge symptoms did improve, although she continued to suffer other symptoms that she now attributes to ObTape. At the time of her excision procedures, Bergin knew that she had portions of her sling removed to treat her bleeding and discharge symptoms. 40-4. Bergin Dep. 57:13-22, 58:14-18, ECF No. She believed that her body was rejecting the sling. Bergin treatment is took negligence; a Texas place strict in resident, Texas. liability and Bergin (design her ObTape-related asserts defect, claims for manufacturing defect, failure to warn); breach of express warranty; breach of implied warranty; and punitive damages. Bergin argues that Mentor’s summary judgment motion should be denied as to her negligence, strict liability, and punitive damages claims. Court therefore finds that Bergin implicitly conceded The that Mentor is entitled to summary judgment on her warranty claims, and the Court grants Mentor’s summary judgment motion as to those claims.1 II. Wendy Fudge On October 30, 2003, Dr. Brian Feagins implanted Fudge with ObTape to treat her stress urinary incontinence. 1 Within six Even if Bergin had not conceded these claims, Mentor would be entitled to summary judgment for the same reasons it is entitled to summary judgment on her other claims. 3 months, Fudge began to experience vaginal discharge and odor. Fudge went symptoms to could suggested that treatment. see be her gynecologist, related Fudge to return her to and she sling. Dr. asked The Feagins if her gynecologist for follow-up Fudge visited Dr. Feagins in February 2005 with symptoms of vaginal bleeding and odor. Dr. Feagins examined Fudge and told her that her sling was causing her symptoms and that all or part of the sling needed to be removed. month, Dr. Feagins removed part of Fudge’s ObTape. Later that Her symptoms continued, and Dr. Feagins performed three additional revision surgeries. Fudge understood that the revision surgeries were performed to remove portions of her mesh and treat her symptoms. During the last revision surgery, in September 2005, Dr. Feagins removed the remainder of Fudge’s ObTape. After that, Fudge reported to Dr. Feagins that her bleeding and discharge symptoms had resolved. Dr. Feagins later recommended a pubovaginal sling for Fudge; he did not recommend another mesh product for Fudge because of the problems she experienced with ObTape. Fudge is a Texas resident, and her ObTape-related treatment took place in Texas. Fudge asserts claims for negligence; strict liability (design defect, manufacturing defect, failure to warn); breach of implied warranty; breach of express warranty; fraudulent concealment; constructive fraud; negligent misrepresentation; negligent infliction of emotional distress; 4 gross negligence; unjust enrichment; and punitive damages. Fudge argues that Mentor’s summary judgment motion should be denied as to her misrepresentation, negligence, and gross strict liability, negligence claims. negligent The Court therefore finds that Fudge implicitly conceded that Mentor is entitled to summary judgment on her remaining claims, including her warranty, emotional unjust distress, enrichment, and fraud negligent claims, and infliction the Court of grants Mentor’s summary judgment motion as to those claims.2 DISCUSSION Bergin filed her action in this Court on May 14, 2013 under the Court’s direct filing order. The parties agreed that for direct-filed cases, the “Court will apply the choice of law rules of the state where the plaintiff resides at the time of the filing of the complaint.” § II(E), ECF No. 446 in Order Regarding Direct Filing 4:08-md-2004. Bergin is a Texas resident whose ObTape-related treatment took place in Texas, and the parties agree that Texas law applies to her claims. Fudge filed her action on April 29, 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 action to this Court 2 Even if Fudge had not conceded these claims, Mentor would be entitled to summary judgment for the same reasons it is entitled to summary judgment on her other claims. 5 for pretrial proceedings. Fudge did not state in her Complaint which U.S. District Court is the proper venue for her action, but she did state that she lives in Texas, and she does not dispute that all of her ObTape-related treatment took place in Texas. The parties agree that Texas law applies because it is the law of the state where venue would be proper had the action not been filed in a multidistrict litigation proceeding. Plaintiffs both assert personal Mentor under a variety of theories. their claims Plaintiffs’ are claims limitations. claims The subject against Mentor contends that all of time-barred. are injury to parties a two-year agree that statute of Tex. Civ. Prac. & Rem. Code § 16.003(a) (requiring that actions for personal injury be brought within two years after the claim accrues). Texas’s discovery rule applies if “the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable.” Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex. 1998) (quoting Computer Assocs. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1994)). accrue Under the discovery rule, “a cause of action does not until reasonable a care plaintiff and knows or, diligence, ‘should wrongful act and resulting injury.’” R.V., 933 S.W.2d 1, 4 (Tex. 1996)). 6 through the have exercise known of of the Id. at 37 (quoting S.V. v. Mentor Plaintiffs argues and that their Plaintiffs’ doctors linked claims at least accrued some of symptoms to ObTape—2006 for Bergin and 2005 for Fudge. when their Bergin contends that her claims did not accrue until 2011, when she saw an advertisement suggesting that ObTape was defective. And Fudge asserts that her claims did not accrue until 2012, when she learned from a work colleague that ObTape might be defective. The following cases are instructive. Inc., 157 Circuit F.3d found plaintiff’s 903 claims Cir. the Texas based that (5th on 1998) In Pavich v. Zimmer, (per discovery injuries curiam), rule caused the applied by to breaks surgical rods that had been implanted in his spine. 1998 WL 612290, at *2. Fifth a in Pavich, According to the Fifth Circuit, the plaintiff “acquired knowledge of facts which, in the exercise of reasonable diligence, would lead to the discovery of his injury” when the plaintiff’s doctor told him that his pain was likely caused by accrued. suit breaks in the Id. at *2 to *3. until more than two rods, and that is when his claims But the plaintiff did not file his years after accrued, so his action was time-barred. his cause of action Id. In Porterfield v. Ethicon, Inc., 183 F.3d 464, 467 (5th Cir. 1999) (per curiam), the Fifth Circuit concluded that the plaintiff’s cause of action accrued under Texas law when she 7 began to conclude that her symptoms were related to her hernia mesh. The Fifth Circuit rejected the plaintiff’s argument that her claims did not accrue until a revision surgery revealed that the mesh had attached itself to her liver. Id. Because the plaintiff did not file her action within two years after she began to conclude that her symptoms were related to her hernia mesh, her claims were time-barred. Id. In Brandau v. Howmedica Osteonics Corp., 439 F. App’x 317, 322 (5th Cir. 2011) (per curiam), the Fifth Circuit found that the plaintiff’s cause of action accrued under Texas law when her doctor reviewed an x-ray of the plaintiff’s knee prosthesis and noticed possible problems with the prosthesis. The plaintiff’s action in Brandau was timely because the plaintiff filed her action within two years of receiving that provisional diagnosis. Id. 1984) And in Woodruff v. A.H. Robins Co., 742 F.2d 228 (5th Cir. (per curiam), Fifth Circuit determined that the plaintiff’s cause of action did not accrue under Texas Law until 1981, when she learned of a possible connection between her intrauterine device and her severe pelvic disease. In Woodruff, there her was no evidence that the plaintiff or doctors connected the plaintiff’s injuries to her intrauterine device before 1981. Finally, developed in Childs, silicosis after a case inhaling 8 involving silica dust plaintiffs at work, who the Texas Supreme Court explained that “the discovery rule operates to defer discovers accrual or, of a through cause the of exercise action of until a reasonable diligence, should discover the ‘nature of his injury.’” 974 S.W.2d at 40. plaintiff care and Childs, The Childs Court noted that “discovering the ‘nature of the injury’ requires knowledge of the wrongful act and the resulting injury.” Id. The Childs Court noted that a plaintiff is aware of a “wrongful act” when he discovers “that his injuries resulted from exposure to asbestos,” “has knowledge of the cause in fact of her illness,” or discovers “an injury and its general cause.” Id. (citing, for example, Mann v. A.H. Robins Co., 741 F.2d 79 (5th Cir. 1984) (stating that cause of action accrued when plaintiff knew or reasonably should have known of a connection between her intrauterine device and her endometriosis)). In Childs, the plaintiffs’ causes of action accrued when they discovered (or should have discovered) that their respiratory symptoms were related to their silica exposure at work. Id. at 47. The Childs Court emphasized that accrual is only tolled “until a claimant discovers or in the exercise of reasonable diligence should have discovered the injury and that it was likely caused by the wrongful acts of another.” (emphasis added). Id. That is because the discovery rule “expressly requires a plaintiff to use reasonable diligence to investigate his injury.” Id. at 47. 9 Here, both Plaintiffs knew or should have known that they suffered some injuries related to ObTape by the time of their revision surgeries, and that is when their claims accrued. In 2006, Bergin’s doctor told Bergin that portions of her sling had to be removed to treat her symptoms. Bergin cannot seriously dispute that she connected her symptoms to ObTape in 2006; she believed that her symptoms were caused by her body’s rejection of the sling. have several And in 2005, Fudge understood that she had to revision surgeries and, ultimately, removal of her mesh to treat her symptoms. a complete Fudge’s doctor later declined to recommend another mesh product for Fudge because of the problems she experienced with ObTape. A reasonable person in either situation would take some action to follow up on the cause of her injuries and try to find out whether the injuries were caused by a problem with ObTape, a problem with the implant surgery, or some other problem. Neither Bergin nor Fudge pointed to evidence that they took any action to investigate their potential claims even though they knew connection between ObTape and their injuries. there was a Instead, they argue that even if they should have been aware of a causal connection between their injuries and ObTape in 2005 or 2006, they did not know of any wrongful conduct by Mentor until much later. 10 Plaintiffs latch on to dicta in Childs that states that accrual is tolled until the plaintiff discovers that her injury “was likely caused by the wrongful acts of another.” 974 S.W.2d at 40 (emphasis added). Childs, Plaintiffs interpret this language to mean that their claims did not accrue when they learned of a causal connection between the product and their injuries, but when they learned that Mentor’s “wrongful act” caused their unpersuasive. mere dicta. injury. The Court finds this argument First, it is not the holding in Childs. It is In its holdings, the Texas court clearly indicated that the claims accrued when the plaintiffs learned, or should have learned, that their respiratory symptoms were caused by silica exposure at work. Childs, 974 S.W.2d at 46 (finding jury question on when plaintiff Haussecker’s claims accrued because of a genuine fact dispute regarding when he knew or should have known of “a likely causal connection between his symptoms and his occupational exposure” to silica); id. at 47 (finding jury question on plaintiff Martinez’s claims because of a fact question on when he knew or should have known “that his injury was likely work-related”). connection between the There is no discussion about the plaintiffs’ “wrongful acts” by the defendants. silica exposure and any It is also noteworthy that the Fifth Circuit in a case decided after Childs arising under Texas law makes no mention of a “wrongful act” accrual trigger 11 in a surgical mesh case. the Fifth Circuit in Porterfield, 183 F.3d at 467. Porterfield found that the Rather, plaintiff’s claim accrued when she became aware that “her physical problems were associated with the mesh.” Id. Here, Plaintiffs did not point to any holding of a Texas court (and the Court has found none) supporting limitations does Plaintiffs’ argument not in accrue a that the personal statute injury of product liability case until a plaintiff has knowledge that the product manufacturer committed plaintiff’s injury discoverable. and a “wrongful act”—even a connection to the though product the were The Court refuses to extend the dicta in Childs to transform Texas’s discovery rule. For all of these reasons, Bergin’s claims accrued in 2006, and Fudge’s claims accrued in 2005. within two years of the accrual. Neither filed her action Their claims are time-barred. CONCLUSION As discussed above, Mentor’s summary judgment motions (ECF No. 40 in 4:13-cv-135 and ECF No. 45 in 4:13-cv-144) are granted. IT IS SO ORDERED, this 14th day of April, 2016. s/Clay D. Land CLAY D. LAND CHIEF U.S. DISTRICT COURT JUDGE MIDDLE DISTRICT OF GEORGIA 12