DUARTE v. MENTOR CORPORATION et al, No. 4:2013cv00267 - Document 41 (M.D. Ga. 2015)
Court Description: ORDER granting 35 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE CLAY D LAND on 12/23/2015. (CCL)
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DUARTE v. MENTOR CORPORATION et al Doc. 41 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. 4:13-cv-267 (Duarte) 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. Plaintiff Matilde Duarte was implanted with ObTape and asserts that she suffered injuries caused by ObTape. liability action against Mentor, Duarte brought a product contending that ObTape had design and/or manufacturing defects that proximately caused her injuries. warn her Duarte also asserts that Mentor did not adequately physicians about the risks associated Duarte brought her claims under several theories. summary judgment on all of her claims. with ObTape. Mentor seeks For the reasons set forth below, Mentor’s summary judgment motion (ECF No. 35 in 4:13-cv-67) is 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 movant is entitled to judgment as a matter of law.” Fed. R. Dockets.Justia.com Civ. P. 56(a). In determining whether a genuine 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 Plaintiff Matilde Duarte consulted Dr. Ansley Lowder Hilton and Dr. Marcia Harris-Owens regarding her incontinence symptoms. Drs. Hilton and Harris-Owens implanted Duarte with ObTape on August 12, 2005. Duarte complications due to ObTape. contends that she suffered She also asserts that Dr. Felice James removed a portion of Duarte’s ObTape in 2011 and told her that it was causing her problems. Duarte Dep. 7:10-9:16, ECF No. 37-3 in 4:13-cv-267. Duarte is a North Carolina resident whose ObTape-related treatment took place in North Complaint on July 11, 2013. injury under the Carolina. Duarte filed her She asserts claims for personal following theories: negligence, strict liability design defect, strict liability manufacturing defect, strict liability failure to warn, breach of implied warranties, 2 breach of express warranties, fraudulent misrepresentation, fraudulent concealment, and negligent misrepresentation. DISCUSSION Duarte filed her action in this Court 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.” Order Regarding Direct Filing § II(E), ECF No. 446 in 4:08-md-2004. Duarte is a North Carolina resident whose ObTape-related treatment took place in North Carolina, and the parties agree that North Carolina law applies to her claims. Mentor contends that Duarte’s claims are barred under North Carolina’s statute of repose. Until 2009, North Carolina law provided that no personal injury claims “based upon or arising out of any alleged defect or any failure in relation to a product shall be brought more than six years after the date of initial purchase for use or consumption.” 50(a)(6) (1995). for product N.C. Gen. Stat. § 1- On October 1, 2009, a new statute of repose liability claims became effective: no personal injury claims “based upon or arising out of any alleged defect or any failure in relation to a product shall be brought more than 12 years after the date of initial purchase for use or consumption.” N.C. Gen. Stat. § 1-46.1(1). The new rule became effective on October 1, 2009 and applies only “to causes of 3 action that accrue on or after that date.” 2009 N.C. Sess. Laws 2009-420 § 3. North Carolina courts apply the statute of repose in effect at the time of the initial product sale or delivery. Robinson v. Bridgestone/Firestone N. Am. Tire, LLC, 703 S.E.2d 883, 88687 (N.C. Ct. App. 2011 (applying statute of repose in effect when the allegedly defective tires were initially purchased in 1995 or 1996 and declining to apply N.C. Gen. Stat. § 1-46.1(1) (2009)); see also Lackey v. DePuy Orthopaedics, Inc., No. 5:10CV-00030-RLV, 2011 WL 2791264, at *3 (W.D.N.C. July 14, 2011) (applying statute of repose in effect when allegedly defective replacement hip was purchased in 1998); see also Colony Hill Condo. I Ass’n v. Colony Co., 320 S.E.2d 273, 276 (N.C. Ct. App. 1984) (applying real property statute of repose in effect when the plaintiff purchased his condominium); McCrater v. Stone & Webster Eng’g Corp., 104 S.E.2d 858, 860 (N.C. 1958) (applying worker’s compensation statute of limitations in effect on the date of the plaintiff’s accident); cf. Black v. Littlejohn, 325 S.E.2d 469, 474-75 (N.C. 1985) (“Unlike an ordinary statute of limitations which begins running upon accrual of the claim, the period contained in the statute of repose begins when a specific event occurs, accrued omitted). or regardless whether any of whether injury has a cause of resulted.”) action (citations Therefore, the 1995 statute of repose applies here. 4 has Under the 1995 statute of repose, no personal injury claims “based upon or arising out of any alleged defect or any failure in relation to a product shall be brought more than six years after the date of initial purchase for use or consumption.” N.C. Gen. Stat. § 1-50(a)(6) (1995). Therefore, a personal injury cause of action based on a product defect must be brought within six years of the date when the product was initially purchased for use or consumption. Robinson, 703 S.E.2d at 887 (finding that to bring a claim related to an allegedly defective tire, the plaintiffs had to prove that the “tire was initially purchased within six years of the filing of the complaint”); see also Bryant v. Don Galloway Homes, Inc., 556 S.E.2d 597, 600 (N.C. Ct. App. 2001) (noting that a statute of repose begins to run when the statutory triggering event occurs, “regardless of whether or not there has been an injury”). Here, it is undisputed that Duarte’s ObTape was initially purchased for use on August 12, 2005 at the latest, when the ObTape was implanted into Duarte’s body. Duarte did not file her Complaint until nearly eight years later, on July 11, 2013. Duarte argues, however, that the statute of repose is tolled by fraudulent concealment. In support of this argument, Duarte cited fraudulent Minnesota law on concealment. But North Carolina law applies here, and Duarte cited no authority that fraudulent concealment applies 5 to toll the North Carolina statute of repose. North Carolina precedent establishes that “the repose serves as an unyielding and absolute barrier that prevents a plaintiff’s right of action even before his cause of action may accrue.” reasons, Duarte’s Black, 325 S.E.2d at 475. claims are barred by the For all of these North Carolina statute of repose, and Mentor is entitled to summary judgment on all of her claims. CONCLUSION For the reasons set forth above, Mentor’s summary judgment motions (ECF No. 35 in 4:13-cv-267) is granted. IT IS SO ORDERED, this 23rd day of December, 2015. s/Clay D. Land CLAY D. LAND CHIEF U.S. DISTRICT COURT JUDGE MIDDLE DISTRICT OF GEORGIA 6
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