Victoria Kearse v. Mentor Corporation

682 F. App'x 701
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 9, 2017
Docket16-10119, 16-10120, 16-10122, 16-10124, 16-10351, 16-10354, 16-10355, 16-10356, 16-10357, 16-11519, 16-11520, 16-12841
StatusUnpublished
Cited by6 cases

This text of 682 F. App'x 701 (Victoria Kearse v. Mentor Corporation) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Victoria Kearse v. Mentor Corporation, 682 F. App'x 701 (11th Cir. 2017).

Opinion

WILSON, Circuit Judge:

Plaintiffs filed claims against Mentor Corporation and Mentor LLC (collectively, “Mentor”) for products liability and negligence. Plaintiffs asserted that Mentor’s product, ObTape Transobturator Tape (ObTape), a transvaginal mesh product designed to treat urinary incontinence, caused them to suffer injuries. Mentor moved for summary judgment, asserting that. Plaintiffs’ claims were time barred under Minnesota’s statutes of limitation for tort claims. The district court granted summary judgment to Mentor.

On appeal, Plaintiffs argüe that the district court erred when it concluded that the Plaintiffs knew of a connection between the ObTape and their injuries more than six years before they brought suit. 1 We conclude that because Minnesota law ■requires a plaintiff, to know of a causal *703 connection, and not just a mere connection, the district court erred in dismissing Plaintiffs’ claims as time barred. Applying the discovery rule to Plaintiffs’ claims, a reasonable jury could conclude that Plaintiffs did not know of a causal connection between the ObTape and their injuries more than six years before filing suit. Therefore, we reverse and remand for further proceedings consistent with this opinion.

I. BACKGROUND

This appeal stems from personal injury lawsuits brought by twelve Plaintiffs against Mentor for its product, ObTape. ObTape is a transvaginal mesh (also called a suburethal sling) used to treat stress urinary incontinence. Plaintiffs each sought treatment for stress urinary incontinence and subsequently were implanted with the ObTape. At some point, each Plaintiff experienced injuries and underwent a procedure to remove some or all of the ObTape.

Plaintiffs allege that when Mentor launched ObTape in 2003 Mentor was fully aware that the product could erode and cause serious infections, but Mentor fraudulently concealed this information from the medical community. The product-insert data sheets (PIDs) that accompany Ob-Tape when it is given to doctors listed infection and erosion as rare events. In early 2006, after receiving numerous reports of adverse events, Mentor withdrew ObTape from the market.

I. Melissa Robinson Watson

Plaintiff Melissa Robinson Watson sought treatment for stress urinary incontinence and received her ObTape implant in May 2004. Watson experienced negative side effects within 25 days of receiving her ObTape implant. It was partially removed two weeks later. After viewing a television commercial regarding transvaginal mesh complications, she filed her lawsuit in January 2013.

Watson has suffered from diabetes since she was 17, and before her ObTape implant surgery, her doctor warned her that her diabetes could cause complications. Therefore, when she began to experience erosion and infection, she attributed it to her diabetes and not ObTape. Watson’s doctor did not recall specifically what he told Watson, but he did acknowledge that he wrote “diabetes” in his notes.

The district court, in finding that Watson’s claims were time barred, noted that Watson knew the “sling had ‘come apart’ ... through her vaginal wall” in January 2005 when she underwent a procedure to remove the remaining ObTape. See In re Mentor Corp. Obtape Transobturator Sling Prods. Liab. Litig., 2016 WL 1574071, at *1 (M.D. Ga. Apr. 19, 2016). The district court reasoned that because Watson knew there was an erosion of the ObTape, she “knew of, strongly suspected, or had enough information to know of a connection between ObTape and at least some of her injuries by the time her doctor excised the ObTape.” Id. at *3,

II. Graciela Urbieta

Plaintiff Graciela Urbieta received her ObTape implant in March 2005. In January 2006, she was diagnosed with necrotiz-ing fasciitis, a potentially lethal condition, and a thigh abscess. She can no longer run, work out, or sing, and is forced to wear diapers for her continuing incontinence. After viewing a television advertisement concerning transvaginal mesh litigation, she filed her suit in July 2013.

Urbieta was treated by several doctors. She claims that none of her doctors informed her that her injuries were caused by her ObTape. One doctor did not even know she had been implanted with Ob- *704 Tape, and thus could not have concluded it was the cause. Another physician diagnosed Urbieta with an eroded sling and removed the sling in December 2006.

The district court concluded that Urbie-ta should have known of a connection between the ObTape and her symptoms because she knew the sling was infected, and because she had an excision surgery to remove it in December 2006. In re Mentor Corp. Obtape Transobturator Sling Prods. Liab. Litig., 2015 WL 9307267, at *7 (M.D. Ga. Dec. 21,2015).

III.Victoria Kearse

Plaintiff Victoria Kearse received her ObTape implant to treat her stress urinary incontinence in November 2004. She immediately suffered several side effects including foul-smelling vaginal discharge, severe pain, and several large painful cysts. Kearse underwent several surgical procedures to excise her ObTape, the third and final surgery taking place in September 2005. She also underwent three other surgeries to remove her cysts. Kearse still suffers from abdominal pain. After hearing about media accounts of transvaginal mesh litigation from her sister, Kearse filed her suit in October 2012.

Kearse believed, and it was confirmed by her doctor, that her own body and not her ObTape was the cause of her injuries. Her doctor informed her that her condition was caused by “thin vaginal mucosa,” rather than the ObTape. The district court however concluded that because Kearse underwent surgery, she “knew by September 2005 that there was a connection between ObTape and some of her injuries.” In re Mentor Corp. Obtape Transobturator Sling Prods. Liab. Litig., 2015 WL 8578364, at *4 (M.D. Ga. Dec. 9, 2015).

IV. Betty Lou Shaffer

Plaintiff Betty Lou Shaffer received her ObTape implant in November 2003. Shortly thereafter, she began experiencing vaginal pain, which she described as a “sandpaper-like sensation.” Shaffer’s doctor explained that Shaffer’s ObTape had eroded through the incision, and the doctor performed surgery to remove part of the ObTape in February 2004. Shaffer continues to experience vaginal pain and has had to forgo intercourse as a result of her ObTape injuries. After viewing a lawyer advertisement regarding transvaginal mesh complications, Shaffer filed her claim in January 2013.

Until the advertisement, Shaffer claims that she was under the impression that her injuries were a product of her body rejecting a foreign body. However, the district court found that, because Shaffer underwent the removal surgery in January 2004 she “knew of a connection between Ob-Tape and some of her injuries” in 2004. Id. at *5. The district court also noted that after the removal surgery, Shaffer’s “sandpaper pain feeling went away.” Id. But Shaffer has asserted that she continues to experience vaginal pain and has had to forgo intercourse.

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