PRESTON v. MENTOR WORLDWIDE LLC, No. 4:2013cv00121 - Document 61 (M.D. Ga. 2015)
Court Description: ORDER granting in part and denying in part 30 Motion for Partial Summary Judgment. Ordered by US DISTRICT JUDGE CLAY D LAND on 09/01/2015. (CGC)
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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-121 (R. Preston) 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 Rosa Preston was implanted with ObTape and asserts that she suffered injuries caused liability action by ObTape. against Preston Mentor, brought contending this that product ObTape had design and/or manufacturing defects that proximately caused her injuries. warn her Preston also asserts that Mentor did not adequately physicians about the risks associated with ObTape. Mentor seeks summary judgment on several of Preston’s claims, including her claims for manufacturing defect, failure to warn, breach of fraudulent implied warranty, misrepresentation, breach of fraudulent express warranty, concealment, and negligent misrepresentation. For the reasons set forth below, Mentor’s Motion for Summary Judgment (ECF No. Partial 4:13-cv-121) is granted in part and denied in part. 30 in 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 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 Viewed in the light most favorable to Preston, the record reveals the following. urinary incontinence. Preston experienced symptoms of stress She consulted Dr. Charles Fougerousse and decided to proceed with an ObTape implant. Before her surgery, Preston Mentor did not speak with anyone from or see any materials from Mentor. Preston’s When ObTape complications implant arose surgery during the was on implant Fougerousse consulted with Dr. Brent Campbell. implanted Preston with ObTape. July 26, surgery, 2005. Dr. Dr. Campbell Dr. Campbell was not aware of 2 any problems with ObTape, such as the erosion rate and lack of tissue ingrowth, and he was not aware that “Key Opinion Leaders” in Europe market. stated were calling Campbell that if for Aff. Mentor ObTape ¶¶ 4-8, had to be withdrawn ECF No. 35-5. informed him of Dr. these “would not have used the Ob Tape on Ms. Preston.” from the Campbell issues, Id. ¶ 9. he But Dr. Campbell did not read the product insert data sheet for ObTape and did not speak with anyone from Mentor about ObTape before he implanted it in Preston; Dr. Campbell relied on Dr. Fougerousse’s selection of ObTape for Preston and did not rely on any statements by Mentor. 35-4. Preston’s ObTape Campbell Dep. 25:16-26:25, ECF No. has never been explanted, and she contends that she has suffered injuries due to the ObTape. Preston filed her Complaint on May 7, 2013. Compl., ECF No. 1 in 4:13-cv-121. personal injury negligence, under strict a liability variety design See generally Preston brought claims for of theories, defect, strict including liability failure to warn, strict liability manufacturing defect, breach of warranty, fraudulent misrepresentation, fraudulent concealment, and negligent misrepresentation. DISCUSSION Preston 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 3 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. The parties agree that Texas law applies to Preston’s claims because she is a Texas resident and all of her medical treatment relevant to this action occurred in Texas. I. Manufacturing Defect Claim Preston asserts that her ObTape has a manufacturing defect. “A manufacturing defect exists when a product deviates, in its construction or output manner in a quality, that from the renders specifications it unreasonably or planned dangerous.” Cooper Tire & Rubber Co. v. Mendez, 204 S.W.2d 797, 800 (Tex. 2006) (quoting Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004)). must present manufacturing To establish a manufacturing defect, a plaintiff evidence that specifications plaintiff’s injuries. the and that product the did defect not caused meet the BIC Pen Corp. v. Carter, 346 S.W.3d 533, 540 (Tex. 2011).1 Preston’s claim for manufacturing defect is based on the same evidence that the Phase I Georgia Plaintiffs presented in opposition to summary judgment: 1 evidence that (1) ObTape’s The Texas standard for manufacturing defect is substantially the same as the Georgia standard. See In re Mentor Corp. ObTape Transobturator Sling Prods. Liab. Litig., 711 F. Supp. 2d 1348, 1365 (M.D. Ga. 2010) (“[I]n a manufacturing defect case, the ‘product’s defectiveness is determined by measuring the product in question against the benchmark of the manufacturer’s designs.’”) (quoting ACE Fire Underwriters Ins. Co. v. ALC Controls, Inc., Civil Action No. 1:07–CV–606–TWT, 2008 WL 2229121, at *2 (N.D. Ga. May 28, 2008)). 4 product specifications called for pores measuring between 40 and 100 microns and (2) tests of ObTape samples revealed “non- uniform pores, some of which are closed-ended pores and the vast majority of which are smaller than 40 microns.” In re Mentor Corp. ObTape Transobturator Sling Prods. Liab. Litig., 711 F. Supp. 2d 1348, 1376 (M.D. Ga. 2010). Based on that evidence, the Court found a genuine fact dispute on the Phase I Georgia Plaintiffs’ manufacturing defect claims. Mentor contends that Preston Id. cannot make out a manufacturing defect claim because she did not point to any evidence that an expert examined her specific ObTape—which is still in her body—and opined that it has a manufacturing defect. It is true that one way to prove a manufacturing defect under Texas law is to test manufacturing standards. the specific subject product against For example, in BIC Pen Corp., the parties tested the cigarette lighter that caused the plaintiff’s injuries. 346 S.W.3d at 540-41. But Mentor did not point the Court to any authority that such testing is the only way to establish a manufacturing defect under Texas law. Here, Preston relies on the same evidence as the Phase I Georgia Plaintiffs, whose specific ObTape was not tested, either. Rather, their experts tested a number of ObTape samples and concluded that a substantial portion of each ObTape tested had pores smaller than 40 microns. In re Mentor, 711 F. Supp. at 1376. 5 At this time, the Court remains satisfied that this evidence is sufficient to create a genuine fact dispute on Preston’s manufacturing defect claim. Mentor’s summary judgment motion on the manufacturing defect claim is thus denied. The Court may reconsider this issue when ruling on any motion for judgment as a matter of law that may be presented at trial. II. Failure to Warn Claim Preston also argues that Mentor did not provide an adequate warning regarding Campbell. ObTape to her implanting physician, See Centocor, Inc. v. Hamilton, 372 S.W.3d 140, 154 (Tex. 2012) (explaining learned intermediary doctrine). contends Dr. that Preston cannot establish causation Mentor because Dr. Campbell did not read the product insert data sheet or speak with anyone from Mentor about ObTape before implanting it in Preston. But Preston presented evidence that Dr. Campbell would not used have ObTape if Mentor had informed him of certain issues with the product. Given the conflict in the evidence, summary appropriate, judgment is not particularly when all reasonable inferences must be construed in favor of Preston as required at this stage of the proceedings. III. Misrepresentation and Concealment Claims Preston asserts that Mentor made misrepresentations about ObTape and concealed material information about ObTape, and she asserts claims for fraudulent 6 misrepresentation, fraudulent concealment, negligent misrepresentation, and breach of express warranty. These reliance.” Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 436 (Tex. 1997). claims “all share the common element of Mentor moved for summary judgment on these claims, arguing that Preston could not point to evidence of reliance. Preston did not respond to the summary judgment motion on this issue, and she did not point to any evidence that she or her implanting physicians relied on any false statement or misleading silence in the materials Mentor provided to them. Mentor is thus entitled to summary judgment on Preston’s claims for fraudulent misrepresentation, fraudulent concealment, negligent misrepresentation, and breach of express warranty. IV. Breach of Implied Warranty Claim Preston warranty. also asserts a claim for breach of implied Under Texas law, a four-year statute of limitations applies to such claims. E.g., Fontenot v. Kimball Hill Homes Tex., Inc., No. 14–00–01375–CV, 2002 WL 834468, at *4 (Tex. App. May 2, 2002). Preston contends that the discovery rule applies to implied warranty claims under Texas law and that her implied warranty claim thus did not accrue until she could have reasonably discovered that her problems were caused by ObTape. In support of this assertion, Preston cites several Texas cases, but none of them stands for the proposition that the discovery rule delays accrual of an implied warranty claim related to the 7 sale of goods. Rather, they suggest that the claim accrues on the date of the product sale. See, e.g., id. (“In the sale of goods, limitations runs from the date of the sale.”) (emphasis added); cf. Grinnell, 951 S.W.2d at 435 (finding that implied warranty claims accrued when the plaintiff bought the product). Under this authority, Preston’s implied warranty claim accrued in 2005. She did not file her Complaint until eight years later, so her implied warranty claim is time-barred. CONCLUSION As discussed above, Mentor’s Motion for Partial Summary Judgment (ECF No. 30 in 4:13-cv-121) is granted in part and denied in part. The Court denies summary judgment on Preston’s manufacturing defect and failure to warn claims. grants summary judgment on Preston’s implied The Court warranty, fraudulent misrepresentation, fraudulent concealment, negligent misrepresentation, and breach of express warranty claims. IT IS SO ORDERED, this 1st day of September, 2015. S/Clay D. Land CLAY D. LAND CHIEF U.S. DISTRICT COURT JUDGE MIDDLE DISTRICT OF GEORGIA 8
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