YOUNG et al v. MENTOR WORLDWIDE LLC et al, No. 4:2013cv00476 - Document 61 (M.D. Ga. 2016)
Court Description: ORDER granting 58 Motion for Reconsideration, vacating 56 Order on Motion for Summary Judgment, denying 49 MOTION for Summary Judgment. Ordered by US DISTRICT JUDGE CLAY D LAND on 12/05/2016. (CCL)
Download PDF
<![CDATA[
YOUNG et al v. MENTOR WORLDWIDE LLC et al Doc. 61 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION IN RE MENTOR CORP. OBTAPE * MDL Docket No. 2004 4:08-MD-2004 (CDL) * Case Nos. * 4:13-cv-476 (Young) TRANSOBTURATOR SLING PRODUCTS LIABILITY LITIGATION O R D E R Umpires do not always get it right. A motion for reconsideration, which is likely the least granted motion in the federal judiciary, triggers the judicial instant replay. the judicial replay may not be quite as as the reversal of a “safe” to an “out,” it has the same purpose. It allows judges to reverse a wrong decision. “instant” While For the reasons explained in the remainder of this Order, the Court does so here. The Court previously granted Mentor’s summary judgment motion (ECF No. 49 in 4:13-cv-476), concluding that Plaintiff Janice Young’s claims against Defendant Mentor Worldwide were time-barred under Arkansas law and that her husband’s derivative loss of consortium claim failed for that reason. Young filed a motion for reconsideration (ECF No. 58 in 4:13-cv-476). Young contends that there is a genuine fact dispute on when her claims arose. this Upon reconsideration, under the unique circumstances of case, the Court agrees with Young. The Court hereby Dockets.Justia.com vacates its previous Order (ECF No. 56 in 4:13-cv-476) and replaces it with this Order. Defendant Mentor Worldwide LLC developed a suburethral sling product called ObTape Transobturator Tape, which was used to treat women with stress urinary incontinence. Plaintiff Janice Young was implanted with ObTape and asserts that she suffered injuries caused by ObTape. Mrs. Young brought a product liability action against Mentor, contending that ObTape had design and/or manufacturing defects that proximately caused her injuries. Mrs. Young also asserts that Mentor did not adequately warn her physicians about the risks associated with ObTape. Mentor Her husband Raymond brought a loss of consortium claim. seeks summary judgment contending they are time-barred. on the Plaintiffs’ claims, As discussed below, the Court finds that Plaintiffs’ claims are not time-barred as a matter of law, so Mentor’s summary judgment motion (ECF No. 49 in 4:13-cv476) 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.” 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 2 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 Janice Young suffered from stress urinary incontinence. Dr. John Brizzolara implanted Mrs. Young with ObTape on November 17, 2003. Although her urinary incontinence initially improved, it got much worse within a month of the surgery. Over the next three years, Dr. Brizzolara treated Mrs. Young for the recurrent incontinence. In 2006, Dr. Brizzolara discovered a urethral cutaneous fistula and performed surgery to repair it. During that surgery, Dr. Brizzolara encountered Mrs. Young’s ObTape, and he removed what he believed to be the entire tape so that he could close the fistula. the ObTape several caused additional the Dr. Brizzolara did not believe that fistula. procedures Mrs. to Young treat her later stress underwent urinary incontinence. In January 2008, Mrs. Young presented to Dr. Brizzolara complaining of bloody vaginal discharge and a bulge around her stoma. Dr. Brizzolara diagnosed Mrs. Young with a parastomal hernia. On February 25, 2008, Dr. Brizzolara performed surgery 3 on Mrs. Young to repair the hernia. During the surgery, he found that some remaining ObTape had eroded into Mrs. Young’s vagina, and he removed it. He also found granulation tissue, and he concluded that the granulation tissue and the vaginal discharge were both caused by ObTape. Brizzolara Dep. 97:6-15, ECF No. 50-3 in 4:13-cv-476; accord Lewis Suppl. Decl. Ex. A, Operative Report (Feb. 25, 2008), ECF No. 53-3 in 4:13-cv-476 (noting “[v]aginal bleeding secondary to granulation tissue in the vagina secondary to foreign body in the subcutaneous tissue of the vagina consistent with old suburethral sling” and that Dr. Brizzolara removed the “foreign body from the vagina”). Dr. Brizzolara testified that he would have told Mrs. Young “this is why you had the bleeding was because of the granulation tissue. The granulation tissue was because Brizzolara Dep. 108:23-109:1. of the exposed graft.” Mrs. Young, however, testified that Dr. Brizzolara “never told [her] he was removing tape, ever. I never heard anything about tape.” 29:3, ECF No. 50-14 in 4:13-cv-476. procedure, Mrs. Young’s vaginal Young Dep. 28:25- After the February 2008 bleeding subsided. Young testified that she did not connect any of her symptoms to ObTape until 2012. The Id. at 120:19-21. Youngs live in Arkansas, and Mrs. related treatment took place in Arkansas. claims against Mentor for negligence; 4 Young’s ObTape- Mrs. Young asserts design defect; manufacturing defect; failure to warn; breach of implied warranty; breach of express and implied warranty; and punitive damages. Mr. Young asserts a loss of consortium claim. DISCUSSION The Plaintiffs filed their action in this Court on October 25, 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.” Order Direct Filing § II(E), ECF No. 446 in 4:08-md-2004. live in Arkansas, treatment took and place all in of Mrs. Arkansas. Young’s The Regarding Plaintiffs ObTape-related parties agree that Arkansas law applies to the Plaintiffs’ claims. Under Arkansas law, “[a]ll product liability actions shall be commenced within three (3) years after the date on which the death, injury, or damage complained of occurs.” § 16-116-103. The parties limitations applies statute limitations of plaintiff knew or, to by all of “does the agree the not that exercise this Plaintiffs’ commence of Ark. Code Ann. statute claims. running reasonable until of The the diligence, should have discovered the causal connection between the product and the injuries suffered.” (Ark. 1999). Martin v. Arthur, 3 S.W.3d 684, 690 In Martin, for example, the Arkansas Supreme Court found a jury question on when the statute of limitations began 5 to run because there was a fact dispute as to when the plaintiff discovered or reasonably should have discovered injuries were related to the defendant’s product. that her Here, there is a similar fact dispute. Mentor contends that February 2008 because exposed ObTape from granulation tissue Mrs. that her and is Young’s when vagina and bleeding claims Dr. accrued Brizzolara connected symptoms to in removed Mrs. Young’s the ObTape. Although Dr. Brizzolara testified that he would have told Mrs. Young about this diagnosis, Mrs. Young denies that he did. Thus, there is a fact question on whether Dr. Brizzolara told Mrs. Young that he had removed ObTape from her body and that the ObTape caused some of her symptoms. Under Mrs. Young’s version of the facts, she had no idea in February 2008 that any of her injuries were related to ObTape. Rather, the evidence viewed in the light most favorable to Mrs. Young suggests that (1) Mrs. Young was diagnosed with a parastomal hernia that needed to be repaired, (2) the surgery was prompted by the hernia only and not by any (3) during diagnosis the hernia related to Mrs. repair surgery, Young’s Mrs. ObTape, Young’s and doctor excised a small piece of ObTape that he did not tell Mrs. Young about. Mentor contends that a reasonable person in Mrs. Young’s situation would have, as a matter of law, followed up with Dr. Brizzolara to find out what had caused her bleeding symptoms and 6 that if she had done so she would have been on notice that some of her injuries were related to ObTape. But based on the evidence viewed in the light most favorable to Mrs. Young, a jury could conclude that Mrs. Young’s February 2008 hernia surgery was not prompted by any diagnosis regarding Mrs. Young’s ObTape and that the ObTape excision during that surgery was merely coincidental. And a jury could conclude that as far as Mrs. Young knew, she needed surgery to repair a hernia and her symptoms improved after the surgery. Court is not convinced, as a Under these facts, the matter of law, that every reasonable person in Mrs. Young’s situation would have followed up further to determine the cause of her injuries. For these reasons, the Court finds that there is a genuine fact dispute on when Mrs. Young’s claims accrued under Arkansas law. CONCLUSION As discussed above, Mrs. Young’s motion for reconsideration (ECF No. 58 in 4:13-cv-476) is granted, the Court’s previous Order (ECF No. 56 in 4:13-cv-476) is vacated, and Mentor’s summary judgment motion (ECF No. 49 in 4:13-cv-476) is denied. This action is ready for trial. Within seven days of the date of this Order, the parties shall notify the Court whether they agree to a Lexecon waiver. 7 IT IS SO ORDERED, this 5th day of December, 2016. S/Clay D. Land CLAY D. LAND CHIEF U.S. DISTRICT COURT JUDGE MIDDLE DISTRICT OF GEORGIA 8
]]>
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.
