Brown et al v. Mentor Corporation et al

MOTION for Partial Summary Judgment

M.D. Ga.August 29, 2016

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 No. 2004 Master Case No. 4:08-md-2004-CDL Individual Case No. 4:13-cv-323 (Brown, Shari) DEFENDANT MENTOR WORLDWIDE LLC’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST PLAINTIFFS SHARI AND JOSEPH BROWN Pursuant to Rule 56 of the Federal Rules of Civil Procedure and Local Rule 56, Defendant Mentor Worldwide LLC (“Mentor”) respectfully moves the Court for partial summary judgment on Plaintiffs’ claims. Specifically, the strict liability, breach of warranty, and failure to warn (to the extent based on strict liability) claims are time- barred as a matter of law under the applicable Minnesota statutes of limitations. The grounds for this Motion are set forth in more detail in the accompanying Memorandum in Support. Dated: August 29, 2016 Respectfully submitted, s/ John Q. Lewis John Q. Lewis TUCKER ELLIS LLP 950 Main Avenue, Suite 1100 Cleveland, OH 44113-7213 Telephone: 216.592.5000 Facsimile: 216.592.5009 john.lewis@tuckerellis.com Designated Lead Counsel for Defendant Mentor Worldwide LLC Case 4:13-cv-00323-CDL Document 40 Filed 08/29/16 Page 1 of 2 - 2 - IN RE: MENTOR CORP. OBTAPE TRANSOBTURATOR SLING PRODUCTS LIABILITY LITIGATION MDL NO. 2004 CERTIFICATE OF SERVICE A copy of the foregoing was served via ECF and email on the following counsel this 29th day of August, 2016: Stacy K. Hauer shauer@johnsonbecker.com Michael A. London mlondon@douglasandlondon.com Counsel for Plaintiffs Shari and Joseph Brown s/ John Q. Lewis John Q. Lewis Designated Lead Counsel for Defendant Mentor Worldwide LLC Case 4:13-cv-00323-CDL Document 40 Filed 08/29/16 Page 2 of 2 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 Case No. 2004 Master Case No. 4:08-md-2004-CDL Individual Case No. 4:13-cv-00323 (Brown, Shari) DEFENDANT MENTOR WORLDWIDE LLC’S MEMORANDUM IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST PLAINTIFFS SHARI AND JOSEPH BROWN Mentor is entitled to partial summary judgment on Plaintiffs’ strict liability, failure to warn (to the extent based on strict liability), and breach of warranty claims (Counts I, III, and IV). These claims are time-barred by the applicable Minnesota statutes of limitations because Plaintiffs filed their suit more than four years after the claims accrued. UNDISPUTED FACTS RELEVANT TO THIS MOTION This Court previously described general facts related to ObTape (e.g., Apr. 22, 2010 Order, Doc. 241 at 4-5); Mentor will not restate them here because this motion is premised on undisputed facts unique to Plaintiffs Shari and Joseph Brown. Dr. Bruce Woodworth implanted Mrs. Brown with ObTape to treat her stress urinary incontinence (SUI) on February 8, 2005. (SSMF ¶ 1.) In November 2007, Mrs. Brown saw Dr. Eric Ward, who informed her that her sling had eroded into her vaginal wall and that the eroded portion needed to be removed. (Id. ¶ 2.) On November 28, 2007, Dr. Ward removed the eroded portion of Mrs. Brown’s ObTape. (Id. ¶ 3.) Mrs. Brown testified that she knew at the time of her removal surgery that a portion of her sling needed to be removed because it eroded and was not doing what it was supposed Case 4:13-cv-00323-CDL Document 40-1 Filed 08/29/16 Page 1 of 9 2 to do. (Id. ¶ 4.) At a follow-up visit with Dr. Ward on January 21, 2008, Mrs. Brown was doing very well and “the discharge she had been having for two years ha[d] . . . completely resolved.” (Id. ¶ 5.) Mrs. Brown attributed her discharge to her ObTape at that time because it stopped after her removal surgery. (Id. ¶ 6.) Plaintiffs filed their lawsuit in the United States District Court for the District of Minnesota on July 9, 2013 after Mrs. Brown saw an advertisement on Facebook about vaginal slings. (Id. ¶ 7.) Plaintiffs are Ohio residents and all of Mrs. Brown’s ObTape- related medical care occurred in Ohio. (Id. ¶ 8.) Plaintiffs allege four causes of action against Mentor: (I) strict liability, (II) negligence, (III) breach of warranty, and (IV) failure to warn. (Id. ¶ 9.) LAW AND ARGUMENT Summary judgment should be granted where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed R. Civ. P. 56(a). Indeed, Rule 56 “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Facts are “material” only if they could affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On a motion for summary judgment, “facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). Case 4:13-cv-00323-CDL Document 40-1 Filed 08/29/16 Page 2 of 9 3 A. Minnesota Law Applies to Plaintiffs’ Claims Because There Is No Outcome-Determinative Conflict that Would Require a Choice-of-Law Analysis. Because this case was transferred to this Court from the District of Minnesota, this Court applies Minnesota’s choice-of-law rules to determine which state’s law controls. See In re Gen. Am. Life Ins. Co. Sales Practices Litig., 391 F.3d 907, 911 (8th Cir. 2004); accord Murphy v. Fed. Deposit Ins. Corp., 208 F.3d 959, 965 (11th Cir. 2000). Here, the two possibilities are the law of Minnesota (where the suit was filed) and the law of Ohio (where Mrs. Brown lived at the time of her implant and where her ObTape-related medical treatment and claimed injuries occurred). Under Minnesota law, this Court must first determine whether there is an actual conflict between Minnesota and Ohio law before proceeding to a choice-of-law analysis. Glover v. Merck & Co., Inc., 345 F. Supp. 2d 994, 997 (D. Minn. 2004) (citing Jepson v. Gen. Cas. Co. of Wisconsin, 513 N.W.2d 467, 469 (Minn. 1994)). A conflict exists if the rule of one state or the other is outcome-determinative. Id. If there is no actual conflict, or if the law at issue is procedural, then this Court should apply Minnesota law. See, e.g., Christian v. Birch, 763 N.W.2d 50, 58 (Minn. Ct. App. 2009). Here, no conflict exists between Minnesota and Ohio law on Plaintiff’s breach of warranty claims since both states apply the U.C.C.’s four-year limitations period and accrual-on-tender rule. See Minn. Stat. § 336.2-725; Ohio Rev. Code § 1302.98. There is, however, a conflict between the Minnesota and Ohio statutes of limitations for strict liability and failure to warn claims. Compare, e.g., Minn. Stat. Minn. Stat. § 541.05(2) (4-year limitations period for strict liability claims), with Ohio Rev. Code § 2305.10 (2- year limitations period for product liability and personal injury claims). But the fact that Minnesota courts “have consistently held that statutes of limitations are Case 4:13-cv-00323-CDL Document 40-1 Filed 08/29/16 Page 3 of 9 4 procedural” is dispositive of the choice-of-law issue.1 Christian v. Birch, 763 N.W.2d 50, 57 (Minn. Ct. App. 2009) (collecting cases); see id. (“[T]he second and third steps in the choice-of-law analysis apply only if the conflicting rules of law are substantive rather than procedural.” (citing Danielson v. Nat’l Supply Co., 670 N.W.2d 1, 4 (Minn. Ct. App. 2003))). Because Minnesota courts treat statutes of limitations as procedural, there is no need to engage in a substantive choice-of-law analysis and Minnesota’s statutes of limitations, Minn. Stat. § 541.05 and § 336.2-725, govern.2 B. Plaintiffs’ Strict Liability Claim3 Is Time-Barred Because Plaintiffs Filed It More Than Four Years After It Accrued. Minnesota applies a four-year limitations period to Plaintiffs’ strict liability claim (Count I). Minn. Stat. § 541.05. Under Minn. Stat. § 541.05, subd. 2: Unless otherwise provided by law, any action based on the strict liability of the defendant and arising from the manufacture, sale, use or consumption of a product shall be commenced within four years. Specifically, the Eighth Circuit has held that a claim involving personal injuries allegedly caused by a defective product accrues when two independent elements are both present: 1 Minnesota courts recognize a narrow exception in which a limitations period will be treated as substantive “when it applies to a right created by statute, as opposed to a right recognized at common law.” Birch, 763 N.W.2d at 58 (citing Danielson v. Nat’l Supply Co., 670 N.W.2d 1, 6 n.2 (Minn. Ct. App. 2003)). Here, because Plaintiff proceeds under the common law only, this exception is inapplicable. See id. 2 Applying Minnesota’s statute of limitations here is consistent with this Court’s order in Morey and Cline. There the Court determined that, because Minnesota substantive law applies in the face of a conflict of law, the Minnesota statute of limitations applies under the borrowing statute. Minn. Stat. § 541.31(b); In re Mentor Corp. ObTape Transobturator Sling Prods. Liab. Litig., MDL Docket No. 2004, Nos. 4:10-cv-05060 (Cline), 4:11-cv-5065 (Morey), 2013 WL 286276, at *8 n.1 (M.D. Ga. Jan. 24, 2013) (attached as Ex. D to Decl. of John Q. Lewis (“Lewis Decl.”).) Under either analysis, the Minnesota statutes of limitations govern. 3 To the extent Plaintiffs’ failure to warn claim (Count IV) is based on strict liability, it is time-barred as well for the reasons discussed below. Case 4:13-cv-00323-CDL Document 40-1 Filed 08/29/16 Page 4 of 9 5 “(1) a cognizable physical manifestation of the disease or injury, and (2) evidence of a causal connection between the injury or disease and the defendant’s product, act, or omission.” Hildebrandt v. Allied Corp., 839 F.2d 396, 398 (8th Cir. 1987); see Edwards v. Wyeth, Inc., No. 07-3921, 2008 WL 1908907, at *3 (D. Minn. Apr. 25, 2008) (attached as Ex. E to Lewis Decl.). And courts have elaborated that an injury is “cognizable” when it is “capable of being perceived or known.” Narum v. Eli Lilly & Co., 914 F. Supp. 317, 320-21 (D. Minn. 1996). Here, the testimony of Mrs. Brown and Dr. Ward confirms that Mrs. Brown had a cognizable injury causally connected to her ObTape sling by November 2007. Specifically, by November 2007, Dr. Ward (1) diagnosed Mrs. Brown with a mesh erosion, (2) told her that he needed to remove a portion of her ObTape, and (3) performed revision surgery to remove the eroded portions of her ObTape. (See SSMF §§ 2-4.) Moreover, Mrs. Brown testified that she knew at the time of her removal surgery that a portion of her ObTape needed to be removed because it had eroded and was not doing what it was supposed to do. (Id. ¶ 4.) She also testified that she attributed her vaginal discharge—which she had experienced for two years—to her ObTape because her discharge completely stopped after her removal surgery. (Id. ¶¶ 5-6.) Generally, the fact that a patient has been diagnosed with a medical problem caused by the defendant’s product is sufficient to commence the limitations period under Minnesota law. See, e.g., Klempka v. G.D. Searle & Co., 963 F.2d 168, 170 (8th Cir. 1992) (finding that limitations period ran from time plaintiff was diagnosed with chronic condition and told that product caused her condition); Tuttle v. Lorillard Tobacco Co., 377 F.3d 917, 922 (8th Cir. 2004) (treating date of diagnosis of oral cancer as triggering the limitations period in an action against tobacco manufacturer); Case 4:13-cv-00323-CDL Document 40-1 Filed 08/29/16 Page 5 of 9 6 Edwards, 2008 WL 1908907, at *3 (determining the statute of limitations began to run when plaintiffs were aware ingestion of drug likely caused claimed injury); Narum, 914 F. Supp. at 320 (relying on Klempka to hold that a plaintiff’s injury was cognizable at the time she was diagnosed with an earlier, less severe injury, notwithstanding that she was later diagnosed with a more severe injury). Relying on Klempka, this Court has previously concluded in this litigation that the limitations period accrues when the plaintiff has knowledge “that she suffered some injuries caused by ObTape.” See In re Mentor Corp. ObTape Transoburator Sling Prods. Liab. Litig., MDL No. 2004, Nos. 4:13-cv-93, -101, -151, -153, -241, -346, -377, - 426, -483, -503, 4:14-cv-61, -63 (Jackson, Rupert, Charles, Klum, Leon, Urbieta, Lovell, Suen, Uriegas, Degroot, Hall, Chambers, collectively “Jackson et al.”), 2015 WL 9307267, at *6-7 (M.D. Ga. Dec. 21, 2015) (concluding that cause of action accrues when a plaintiff learns that she has an erosion of her ObTape) (attached as Ex. F to the Lewis Decl.).4 Plaintiffs’ strict liability claim therefore accrued in November 2007, when Dr. Ward diagnosed Mrs. Brown with an ObTape erosion and performed surgery to remove a portion of it, and certainly no later than just after the removal surgery, when by her own admission Mrs. Brown connected her vaginal discharge to her ObTape sling. E.g., id. at *6-10 (concluding that plaintiffs’ negligence and negligent misrepresentation 4 See also In re Mentor Corp., MDL No. 2004, Nos. 4:12-cv-301, -303, -311, 4:13-cv-011, -092 (Downey, Cavazos, Latta, Hirshfield, Greenman, collectively “Downey et al.”), 2016 WL 877773, at *4-5 (M.D. Ga. Mar. 2, 2016) (attached as Ex. G to Lewis Decl.); In re Mentor Corp. ObTape Transobturator Sling Prods. Liab. Litig., MDL No. 2004, Nos. 4:12-cv-307, -308, -319, -323, 4:13-cv-10, -48 (Rogers, Mosier, Kearse, Shirey, Weikel Shaffer, collectively “Rogers et al.”), 2015 WL 8578364, at *3-4 (M.D. Ga. Dec. 9, 2015) (attached as Ex. H to Lewis Decl.). Case 4:13-cv-00323-CDL Document 40-1 Filed 08/29/16 Page 6 of 9 7 claims were time-barred under Minn. Stat. § 541.05 subd. 1(5) because plaintiffs knew of injuries connected to their ObTape more than six years before filing suit). Mentor anticipates that Plaintiffs will argue that Mrs. Brown needed to know of a specific product defect for her claim to accrue, which she did not learn about until she saw an advertisement sometime in 2013. This Court expressly rejected the very same argument in Jackson et al., and Rogers et al. As this Court stated: Plaintiffs contend that it is not enough that they made a connection between ObTape and some of their injuries. Rather, they appear to argue that they must have been on notice that a defect in ObTape caused their injuries. Plaintiffs did not point to any Minnesota authority holding that a plaintiff must be on actual notice that her specific injuries were caused by a product defect. Rather, the precedent establishes that a claim accrues when the plaintiff becomes aware of an injury and a causal connection between the injury and the defendant’s product. . . . [H]ere, each Plaintiff suffered injuries that were connected to an erosion of the ObTape, and each Plaintiff 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 of her excision procedure. Rogers et al., 2015 WL 8578364, at *5; accord Jackson et al., 2015 Wl 9307267, at *8- *9; see also Rogers et al., 2015 WL 8578364, at *4 (rejecting argument that plaintiffs first learned of a connection between ObTape and their injuries from a television commercial aired in 2011 or 2012); Jackson et al., 2015 WL 9307267, at *7 (same). So too here. Because Mrs. Brown was advised of a connection between ObTape and her symptoms by November 2007—and admitted that she linked the two— Case 4:13-cv-00323-CDL Document 40-1 Filed 08/29/16 Page 7 of 9 8 Minnesota law required her to file her strict liability claim against Mentor by November 2011. She did not do so, and thus her claim filed in July 2013 is time-barred.5 C. Plaintiffs’ Breach of Warranty Claim Is Time-Barred. Under Minn. Stat. § 336.2-725, Minnesota imposes a four-year limitations period on claims arising under the Uniform Commercial Code, including claims for breach of warranty. Minn. Stat. § 336.2-725. Moreover, the statute is explicit as to when breach of warranty claims accrue: “[a] breach of warranty occurs when tender of delivery is made.”6 Here, Mrs. Brown’s ObTape was “delivered,” and the warranty claims accrued, no later than when it was implanted—February 8, 2005. As such, Plaintiffs’ breach of warranty claim had to be filed by February 8, 2009. Because it was not, it is time- barred. 5 To the extent Mrs. Brown argues that she could not have reasonably discovered the cause of her injuries until recently (see Compl. ¶¶ 17-22), that allegation is insufficient to establish fraudulent concealment to toll the statutes of limitations. This is because: 1) Mrs. Brown has not alleged that Mentor concealed the existence of the very facts that caused her cause of action to accrue; and 2) “[f]raudulent concealment . . . requires an act of affirmative misrepresentation over and above the acts creating the alleged cause of action,” which is not alleged here. Evans v. Rudy-Luther Toyota, Inc., 39 F. Supp. 2d 1177, 1184 (D. Minn. 1999) (emphasis added) (quoting Ripplinger v. Amoco Oil Co. 916 F.2d 441, 442 (8th Cir. 1990)). This Court’s decisions in Jackson et al., and Rogers et al. rejected similar, unsubstantiated fraudulent concealment arguments. Jackson et al., 2015 WL 9307267, at *9; Rogers et al., 2015 WL 8578364, at *6. 6 The only exception to the accrual-on-tender rule is where a warranty explicitly extends to future performance, in which case “the cause of action accrues when the breach is or should have been discovered.” But “[m]ost courts have been very harsh in determining whether a warranty explicitly extends to future performance,” and to do so “there must be specific reference to a future time in the warranty.” Allstate Ins. Co. v. General Motors Corp., No. PD 04-12393, 2005 WL 264276, at *3-*4 (Minn. Dist. Ct. Jan. 24, 2005) (citing Standard Alliance Indus., Inc. v. Black Clawson, Co., 587 F.2d 813, 820 (6th Cir. 1978)) (attached as Ex. I to Lewis Decl.). Here, Plaintiffs have never even alleged—much less presented evidence of—any specific reference to future performance. Case 4:13-cv-00323-CDL Document 40-1 Filed 08/29/16 Page 8 of 9 9 012813\001279\2810009.1 CONCLUSION The record confirms that Mrs. Brown had a cognizable injury causally connected to her ObTape by January 2008. Because Plaintiffs did not file suit until July 9, 2013— more than five and a half years after their strict liability, failure to warn (to the extent based on strict liability), and warranty claims accrued—those claims are time-barred under Minnesota law. Accordingly, Mentor is entitled to summary judgement on these claims. Dated: August 29, 2016 Respectfully submitted, s/ John Q. Lewis John Q. Lewis TUCKER ELLIS LLP 950 Main Avenue, Suite 1100 Cleveland, OH 44113-7213 Telephone: 216.592.5000 Facsimile: 216.592.5009 john.lewis@tuckerellis.com Designated Lead Counsel for Defendant Mentor Worldwide LLC Case 4:13-cv-00323-CDL Document 40-1 Filed 08/29/16 Page 9 of 9 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 No. 2004 Master Case No. 4:08-md-2004-CDL Individual Case No. 4:13-cv-323 (Brown, Shari) DEFENDANT MENTOR WORLDWIDE LLC’S SEPARATE STATEMENT OF MATERIAL FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST PLAINTIFFS SHARI AND JOSEPH BROWN Pursuant to Rule 56 of the Federal Rules of Civil Procedure and Local Rule 56, Defendant Mentor Worldwide LLC (“Mentor”) submits this Separate Statement of Material Facts in support of its Motion for Summary Judgment. 1. Dr. Bruce Woodworth implanted Mrs. Brown with ObTape to treat her stress urinary incontinence (SUI) on February 8, 2005. (Deposition of Shari Brown (“Brown Dep.”), 38:18-21, attached as Ex. A to Decl. of John Q. Lewis (“Lewis Decl.”); Plaintiff’s Fact Sheet (“PFS”) at p. 2, attached as Ex. B to Lewis Decl.) 2. In November 2007, Mrs. Brown saw Dr. Eric Ward, who informed her that her sling had eroded into her vaginal wall and that the eroded portion needed to be removed. (Id. 45:1-23; Deposition of Eric Ward, M.D. (“Ward Dep.”), 46:6-17, 55:19- 22, attached as Ex. C to Lewis Decl.) 3. On November 28, 2007, Dr. Ward removed the eroded portion of Mrs. Brown’s ObTape. (Brown Dep. 45:1-23; Ward Dep. 50:4-24.) 4. Mrs. Brown testified that she knew at the time of her removal surgery that a portion of her sling needed to be removed because it eroded and was not doing what it was supposed to do. (Brown Dep. 68:24-69:3.) Case 4:13-cv-00323-CDL Document 40-2 Filed 08/29/16 Page 1 of 2 2 012813\001279\2809976.1 5. At a follow-up visit with Dr. Ward on January 21, 2008, Mrs. Brown was doing very well and “the discharge she had been having for two years ha[d] . . . completely resolved.” (Brown Dep. 46:25-47:7; Ward Dep. 54:6-24.) 6. Mrs. Brown attributed her discharge to her ObTape at that time because it stopped after her removal surgery. (Brown Dep. 46:25-47:7, 48:6-12.) 7. Plaintiffs filed their lawsuit in the United States District Court for the District of Minnesota on July 9, 2013 after Mrs. Brown saw an advertisement on Facebook about vaginal slings. (Compl.; Brown Dep. 69:11-70:2.) 8. Plaintiffs are Ohio residents and all of Mrs. Brown’s ObTape-related medical care occurred in Ohio. (Compl. ¶ 1; PFS at pp. 2-4.) 9. Plaintiffs allege four causes of action against Mentor: (I) strict liability, (II) negligence, (III) breach of warranty, and (IV) failure to warn. (Compl.) Dated: August 29, 2016 Respectfully submitted, s/ John Q. Lewis John Q. Lewis TUCKER ELLIS LLP 950 Main Avenue, Suite 1100 Cleveland, OH 44113-7213 Telephone: 216.592.5000 Facsimile: 216.592.5009 john.lewis@tuckerellis.com Designated Lead Counsel for Defendant Mentor Worldwide LLC Case 4:13-cv-00323-CDL Document 40-2 Filed 08/29/16 Page 2 of 2 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 Case No. 2004 Master Case No. 4:08-md-2004-CDL Individual Case No. 4:13-cv-00323 (Brown, Shari) DECLARATION OF JOHN Q. LEWIS IN SUPPORT OF DEFENDANT MENTOR WORLDWIDE LLC’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST PLAINTIFFS SHARI AND JOSEPH BROWN I, JOHN Q. LEWIS, declare as follows: 1. I am an attorney admitted to practice law in the State of Ohio and admitted pro hac vice in this action. I am a partner at the law firm of Tucker Ellis LLP, and counsel of record for Defendant Mentor Worldwide LLC (“Mentor”) in this action. I have personal knowledge of the matters stated herein and, if called upon, I could and would competently testify to the matters contained in this Declaration. 2. Attached as Exhibit A is a true and correct copy of excerpts from the Deposition of Shari Brown, dated June 2, 2016. 3. Attached as Exhibit B is a true and correct copy of excerpts from Plaintiff Shari Brown’s Plaintiff Fact Sheet. 4. Attached as Exhibit C is a true and correct copy of excerpts from the Deposition of Dr. Eric Ward, dated July 22, 2016. 5. Attached as Exhibit D is a true and correct copy of this Court’s unreported decision in In re Mentor Corp. ObTape Transobturator Sling Products Liability Litigation, MDL Docket No. 2004, Nos. 4:10-cv-05060 (Cline), 4:11-cv-5065 (Morey), 2013 WL 286276 (M.D. Ga. Jan. 24, 2013). Case 4:13-cv-00323-CDL Document 40-3 Filed 08/29/16 Page 1 of 2 2 012813\001279\2809973 6. Attached as Exhibit E is a true and correct copy of an unreported case, Edwards v. Wyeth, Inc., No. 07-3921, 2008 WL 1098907 (D. Minn. Apr. 25, 2008). 7. Attached as Exhibit F is a true and correct copy of this Court’s unreported decision in In re Mentor Corp. ObTape Transobturator Sling Products Liability Litigation, MDL No. 2004, Nos. 4:13-cv-93, -101, -151, -153, -241, -346, -377, -426, - 483, -503, 4:14-cv-61, -63 (Jackson, Rupert, Charles, Klum, Leon, Urbieta, Lovell, Suen, Uriegas, Degroot, Hall, Chambers), 2015 WL 9307267 (M.D. Ga. Dec. 21, 2015). 8. Attached as Exhibit G is a true and correct copy of this Court’s unreported decision in In re Mentor Corp. ObTape Transobturator Sling Prods. Liab. Litig., MDL No. 2004, Nos. 4:12-cv-301, 311, 4:13-cv-011, 092 (Downey, Latta, Hirschfield, Greenman), 2016 WL 877773, at *6-7 (M.D. Ga. Mar. 2, 2016). 9. Attached as Exhibit H is a true and correct copy of this Court’s decision in In re Mentor Corp. ObTape Transobturator Sling Products Liability Litigation, MDL No. 2004, Nos. 4:12-cv-307, -308, -319, 323, 4:13-cv-10, -48 (Rogers, Mosier, Kearse, Shirey, Weikel, Shaffer), 2015 WL 8578364 (M.D. Ga. Dec. 9, 2015). 10. Attached as Exhibit I is a true and correct copy of an unreported case, Allstate Insurance Co. v. General Motors Corp., No. PD 04-12393, 2005 WL 264276 (Minn. Dist. Ct. Jan. 24, 2005). I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this 29th day of August, 2016, in Cleveland, Ohio. s/ John Q. Lewis John Q. Lewis Case 4:13-cv-00323-CDL Document 40-3 Filed 08/29/16 Page 2 of 2 EXHIBIT A Case 4:13-cv-00323-CDL Document 40-4 Filed 08/29/16 Page 1 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION SHARI BROWN, et al., Plaintiffs, vs. Case No. 4:13-CV-00323 MENTOR WORLDWIDE, Defendant. Deposition of SHARI BROWN June 2, 2016 10:09 a.m. Taken at: Tucker Ellis, LLP 175 South Third Street, Suite 520 Columbus, Ohio Kimberly A. Kaz, RPR, Notary Public Job No. CS2322952 800-567-8658 Veritext Legal Solutions 973-410-4040 Case 4:13-cv-00323-CDL Document 40-4 Filed 08/29/16 Page 2 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 38 A. No. Q. Okay. At the time you had the procedure, did you -- were you aware of what the brand name of the sling was? A. No. Q. Do you believe he told you and you forgot or you don't know? A. I don't know. Q. Okay. Did he give you any documentation about the product he was using? A. I don't remember. Q. Presently, do you have any documentation of the -- A. No. Q. -- that you received from Dr. Woodworth? A. No. Q. You had the procedure on February 8th, 2005, according to the records. Does that sound right? A. Yes. Q. What do you remember about the day of the procedure? A. I'm not sure what you mean. Q. Did you go -- you went to -- did 800-567-8658 Veritext Legal Solutions 973-410-4040 Case 4:13-cv-00323-CDL Document 40-4 Filed 08/29/16 Page 3 of 11 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 45 Q. And it looks like you saw the urologist, Dr. Ward, in November of 2007. Does that sound right? A. Yes. Q. Tell me what happened when you went back to see a urologist and saw Dr. Ward. A. At that appointment? Q. Sure, if you remember. A. He did a vaginal exam. Q. Okay. And what did he say? A. He told me that the -- the sling that had been put in had -- it was eroded and it was eroded into my vaginal wall. Q. Okay. What did you understand that to mean? A. That it was bad. Q. That the sling was bad. Had -- did he say it had to be taken out? A. Yes. Q. Okay. Did he -- he then operated on you in November -- November 28th of 2007, it looks like. Does that sound right? A. Yes. Yes. Q. Okay. He did that procedure. Was that another one -- did you have that done at a 800-567-8658 Veritext Legal Solutions 973-410-4040 Case 4:13-cv-00323-CDL Document 40-4 Filed 08/29/16 Page 4 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 46 surgery center? A. Yes. Q. Where is that? A. In Columbus. Q. Called Knightsbridge Surgery Center? A. Yes. Q. Was that an outpatient surgery? A. Yes. Q. Okay. What did Dr. Ward tell you after the surgery as to what happened? A. Best to my knowledge, he told me he removed what was infused, what was bad. Q. Okay. Did he tell you why it went bad and why it was bad? A. No. Q. Did he have any discussions with you about replacing it with another product or another sling? A. No. Q. Did you ever do any research to find out why the sling had placed -- was not didn't last and had to be taken out? A. No. Q. You had a follow-up visit in 800-567-8658 Veritext Legal Solutions 973-410-4040 Case 4:13-cv-00323-CDL Document 40-4 Filed 08/29/16 Page 5 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 47 January of 2008 with Dr. Ward. Do you remember a follow-up with Dr. Ward after that procedure? A. I don't recall. Q. Okay. He said you were doing very well then and the discharge had stopped; is that accurate? A. Yes. Q. He says you had no reoccurrence of the stress urinary incontinence in 2008; is that accurate? A. No. Q. You -- you started having that before the procedure entirely, according to what you told me earlier. Did I understand? MR. JANIS: Say that question -- Q. Let me make sure, 'cause we talked about it earlier and I want to make sure, but when did the stress urinary incontinence return? I thought you said a few months after the first surgery. A. No. Q. Second surgery? A. Yes. Q. Okay. A. Second surgery. 800-567-8658 Veritext Legal Solutions 973-410-4040 Case 4:13-cv-00323-CDL Document 40-4 Filed 08/29/16 Page 6 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 48 Q. Had -- when they removed the sling, did Dr. Ward talk to you about the fact that without the sling, your incontinence might return? A. I don't recall. Q. Okay. So in -- in 2008, the discharge stopped, though? A. Yes. Q. And the discharge you attributed to the sling because it went away when the sling was taken out? A. Yes. Q. Okay. Did you ask Dr. Ward how the sling would -- could have caused your discharge? A. I don't recall that. Q. Did you discuss it with any of your doctors how the sling could have caused your discharge? A. I don't recall. Q. Were you diagnosed with any infection in or around the sling? A. No. Q. In June of 2008, it looks like your vaginal discharge returned. Do you remember 800-567-8658 Veritext Legal Solutions 973-410-4040 Case 4:13-cv-00323-CDL Document 40-4 Filed 08/29/16 Page 7 of 11 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 68 Q. Why is that? A. I trusted -- I trusted him. Q. Do you believe he didn't warn you about the risks of the procedure? A. I don't recall. Q. Okay. You're not critical of him for not making you aware of these risks? MR. JANIS: Form. THE WITNESS: No. Q. When did you first learn that Mentor was the manufacturer of the sling that was placed? A. I don't recall. Q. Okay. When did you decide to take legal action against Mentor? And don't tell me about conversations with or from your lawyer, but when did you make that decision? A. I don't recall exactly. Q. In 2005, you knew that the sling was causing you to have painful intercourse, at least in part, from what you told me already; is that correct? A. Yes. Q. And then in 2007, you knew that the sling was -- had to be removed because it was 800-567-8658 Veritext Legal Solutions 973-410-4040 Case 4:13-cv-00323-CDL Document 40-4 Filed 08/29/16 Page 8 of 11 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 69 not doing what it was supposed to do. It began to erode. You knew that? A. Correct. Q. Did you consider bringing legal action against Mentor at that time? A. No. Q. What changed your mind? MR. JANIS: Form. THE WITNESS: I don't -- I don't know. I don't recall why. Q. You filed your lawsuit in 2013. Did something happen that caused you to decide to file a lawsuit? A. I saw -- I saw on Facebook where there was a problem, the possibility of possibility of the product used. Q. Of the what? A. Product that was used in those surgeries. Q. But what new -- what new information did you get from that that you didn't already know? A. Just -- I don't know. I just saw an ad. Q. Seeing that ad, did that lead you 800-567-8658 Veritext Legal Solutions 973-410-4040 Case 4:13-cv-00323-CDL Document 40-4 Filed 08/29/16 Page 9 of 11 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 70 to contacting your attorney? A. Yes. Q. Are you making a claim for medical expenses? MR. JANIS: There -- the plaintiff fact sheet, Page 17 -- the plaintiff fact sheet doesn't list any out-of-pocket expenses, but to suggest that I'm not making that claim, I can't say that, but I can tell you that plaintiff fact sheet isn't listing any out-of-pocket expenses. MR. AUCIELLO: Okay. MR. JANIS: But I'm not -- I'm not waiving that claim. Q. Did you suffer out-of-pocket medical expenses that you attribute to the sling? A. No. Q. Okay. Did you experience any wage loss or economic loss that you attribute to the sling? A. No. MR. AUCIELLO: If we can take a break, I might be pretty close to done. I just got to go through my notes. 800-567-8658 Veritext Legal Solutions 973-410-4040 Case 4:13-cv-00323-CDL Document 40-4 Filed 08/29/16 Page 10 of 11 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 76 I do further certify that I am not a relative, counsel or attorney for either party, or otherwise interested in the event of this action. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal of office at Cleveland, Ohio, on this day of , 2016. Kimberly A. Kaz, RPR, Notary Public within and for the State of Ohio My commission expires March 31, 2018. 800-567-8658 Veritext Legal Solutions 973-410-4040 Case 4:13-cv-00323-CDL Document 40-4 Filed 08/29/16 Page 11 of 11 EXHIBIT B Case 4:13-cv-00323-CDL Document 40-5 Filed 08/29/16 Page 1 of 23 Case 4:11-cv-05080-CDL Document 8-1 Filed 11/21/11 Pale 6 of 31 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION IN RE MENTOR CORP. OBTAPE TRANSOBTURATOR SLING PRODUCTS LIABILITYLITIGATION MDL CASE NO. 2004 Ind. Case No. 4:13-cv-323 PLAINTIFF FACT SHEET Please provide the following information for each individual on whose behalf a claim is being made. Whether you are completing this Plaintiff Fact Sheet for yourself or for someone else, please assume that "You" means the person who had the ObTape implanted. In filling out this form please use the following definition: "healthcare provider" means any hospital, clinic, center, physician's office, infirmary, medical or diagnostic laboratory, or other facility that provides medical care or advice, and any pharmacy, x-ray department, radiology department, laboratory, physical therapist or physical therapy department, rehabilitation specialist, or other persons or entities involved in the diagnosis, care and/or treatment of you. In filling out any section or sub-section of this form, please submit additional sheets as necessary to provide complete information. In addition, if you learn that any of your responses are incomplete or incorrect at any time, please supplement your responses to provide that information as soon as you become aware of this information. In completing this Plaintiff Fact Sheet, you are under oath and must provide information that is true and correct to the best of your knowledge, information and belief. Case 4:13-cv-00323-CDL Document 40-5 Filed 08/29/16 Page 2 of 23 Case 4:11-cv-05080-CDL Document 8-1 Filed 11/21/11 Paae 7 of 31 I. CASE INFIMMATION 1. Name of person completing this form: Shari Brown 2. Name of person on whose behalf a claim is being made: THE REST OF THIS PLAINTIFF FACT SHEET REQUESTS INFORMATION ABOUT THE PERSON WHO WAS IMPLANTED WITH THE OBTAPE II. CORE INFORMATION 1. Lot No. for the ObTape (please attach a copy of the stickers shown on the operative report): 040723E 2. Date of Implantation: 2/8/05 3. Name and Address of Implanting Surgeon(s): Dr. Bruce Woodworth, 940 Chatham Lane, Suite #110, Columbus, OH 43221 4. Name and Address of Hospital, Clinic, or Doctor's Office where implantation surgery was performed: Riverside Methodist Hospital, 3535 Olentangy River Rd., Columbus, OH, 43214 5. If the ObTape has been removed, provide the date on which it was removed: 11/28/07 6. Name and Address of Surgeon(s) who removed the ObTape: Dr. Eric Ward, 941 Chatham Lane, Suite #110, Columbus, OH 43221 2 Case 4:13-cv-00323-CDL Document 40-5 Filed 08/29/16 Page 3 of 23 Case 4:11-cv-05080-CDL Document 8-1 Filed 11/21/11 Page 8 of 31 7. Name and Address of Hospital, Clinic, or Doctor's Office where surgery(ies) performed: Knightsbridge Surgery Center, 4845 Knightsbridge Blvd., Suite #110, Columbus, OH 43214 8. Name of the Manufacturer and Type of the replacement sling, if any: n/a 9. Were any potions of the ObTape surgically removed? Yes X No a. If Yes, what is the present location of the removed portions of the ObTape? Unknown. 10. Has any doctor ever told you that there are portions of the ObTape still in your body? Yes X No If Yes, please provide name and address of each such doctor: Dr. Eric Ward, 941 Chatham Lane, Columbus, OH 43214 11, Has any doctor told you that those portions of the ObTape still in your body need to be removed? Yes No X If Yes, please provide name and address of each such doctor: Case 4:13-cv-00323-CDL Document 40-5 Filed 08/29/16 Page 4 of 23 Case 4:11-cv-05080-CDL Document 8-1 Filed 11/21/11 Pam 9 of 31 III. PERSQNALINFORMATION 1. Name (first, middle name or initial, last): Shari L. Brown 2. Maiden or other names used and dates you used those names: Shari CVT nary 3. Current address and date when you began living at this address: 521 Impala Dr., Mansfield, OH 44903; 1997 Identify each address at which you resided for the period from ten years before your ObTape surgery up to the present and the dates you resided at each one. Address Dates of Residence 381 Grandridge Ave., Mansfield, OH 44907 1995 to 1997 521 Impala Dr., Mansfield, OH 44903 1997 to present 5. Social Security Number: 6. Date and place of birth: 1111114ansfield, 011 7. Current marital status: Married 8. If married, please provide the following information: Date of marriage: 8/17/85 Name of spouse: Joseph M. Brown Date and place of birth of spouse 111111, Mansfield, OH 9. Name(s) of former spouse(s), date(s) of marriage(s) and dates the marriage(s) were terminated, and the nature of the termination (i.e., death, divorce): None. 10. If you have children, list each child's name and date of birth and whether they were delivered vaginally or by Caesarian. Lindsay M Brown, lla vaginally; Kyle .T Brown, MI vaginally 4 Case 4:13-cv-00323-CDL Document 40-5 Filed 08/29/16 Page 5 of 23 Case 4:11-cv-05080-CDL Document 8-1 Filed 11/21/11 Page 10 of 31 11. Identify all schools you attended, starting with high school: Name of School Address Dates of Attendance Degree Awarded Major or Primary Field Madison Comprehensive High School 600 Esley Lane, Mansfield, OH 1979 to 1981 Diploma n/a 12. Are you currently employed? Yes X No If yes, please identify your current employer with name, address and telephone number and your position there: Rod L. Staker, DDS, 61 N. Mulberry St., Mansfield, OH 44902, Dental Assistant, (419) 524-1616 If not, did you leave your last job for a medical reason? Yes If Yes, describe why you left: 13. For the period of time from ten years before you had your ObTape surgery, until the present, please identify all of your employers, with name, address and telephone number, your employment dates, your position there, and your reason for leaving: Name of Employer Address and Telephone Number Dates of Employment and Wage/Salary Describe Your Position or Duties Reason for Leaving Rod L. Staker, DDS 61 N. Mulberry St, Mansfield, OH (419) 524- 1616 1988 to present; $17.00/hour Dental Assistant n/a 5 Case 4:13-cv-00323-CDL Document 40-5 Filed 08/29/16 Page 6 of 23 Case 4:11-cv-05080-CDL Document 8-1 Filed 11/21/11 Paae 11 of 31 14. If you have Medicare, please state your HICN number: n/a 15. For the period from ten years before your ObTape surgery to the present, have you been on or applied for workers' compensation, social security, and/or state or federal disability benefits? Yes No X If Yes, then as to each application, separately state the following and attach any documents you have which relate to the application and/or award of benefits: (a) Date (or year) of application: (b) Type of benefits: (c) Nature of claimed injury/disability: (d) Period of disability: (e) Amount awarded: (f) Basis of your claim: (g) Was claim denied? Yes No (h) To what agency or company did you submit your application: (i) Claim/docket number, if applicable: 16. Have you ever filed a lawsuit or made a claim (other than this suit)? Yes No X If Yes, please provide the following information and attach copies of all pleadings, releases or settlement agreements and deposition transcripts you have: Party You Sued/Made Claim Against Court in Which Suit Filed/Claim Made Case/Claim Number Attomey Who Represented You Nature of Claim and Injury 6 Case 4:13-cv-00323-CDL Document 40-5 Filed 08/29/16 Page 7 of 23 Case 4:11-cv-05080-CDL Document 8-1 Filed 11121/11 Pule 12 of 31 17. Have you ever been convicted of, or pled guilty to, a felony or a crime of dishonesty within the past ten years? Yes No X If Yes, please state the charge to which you plead guilty or which you were convicted of, as well as the court where the action was pending and the date of such conviction or plea: 18. Have you or your spouse ever declared bankruptcy since the date of your initial ObTape surgery? Yes No X If Yes, please state when and in what court you filed your bankruptcy petition, including the docket number of the petition and the orders of discharge: 19. Have you or your spouse (if he/she is pursuing a loss of consortium claim) received any money from a third party in exchange for an assignment of any portion of your claim or recovery in this lawsuit, so that the payer or assignee has decision making authority over the terms of any settlement or other resolution of your claim or has lien rights (excluding liens by healthcare providers) against any funds generated by the resolution of your claim? Yes No X If Yes, please state: The name and address of the third party with whom you have entered into such a contract. 7 Case 4:13-cv-00323-CDL Document 40-5 Filed 08/29/16 Page 8 of 23 Case 4:11-cv-05080-CDL Document 8-1 Filed 11/21/11 Page 13 of 31 IV. MALT TIC A RE PROVIDERS I. Identify each doctor, healthcare provider, hospital, clinic, surgery center, healthcare facility, physical therapy or rehabilitation centers (including but not limited to family/primary care physicians, surgeons, urologists, gynecologists, infectious disease specialists, physical therapists, practitioners of the healing arts) whom you have seen for medical care and treatment for the period ten years before your ObTape surgery to the present. • Name (Specialty) Address and Telephone Number Approx Dates/Years of Visits Reason/Procedure Performed Dr. James Alford (OB/gyn) 770 Balgreen Drive, Mansfield, OH 44906 (419) 522-6800 1997 to 2005 Yearly exams, tubal ligation Dr. Hunter Wilson (OB/gyn) 500 South Trimble Rd., Mansfield, OH 44906 (419) 756-6000 1995 to 1997 Yearly exams, LEEP Dr. Bruce Woodworth (urologist) • 1932 Alcoa Highway, Suite C 475, Knoxville, TN 37920 (865) 305-5000 1998 to 2005 Umbilical cyst surgery, Mentor implant - Dr. Tyler Huggins (OB/gyn) 1200 Ohio 598, Galoin, OH 44833 (419) 468-0111 2005 to 2009 Yearly exams, LEEP Dr. Detrich (surgeon) 215 Wood Street, Mansfield, OH 44903 2006 to 2009 Breast lump, gallbladder removal, colonoscopy Dr. Eric Ward (urologist) 941 Chatham Lane, Ste. 110, Columbus, OH 43221 (614) 459-7600 2007 Removal of Mentor implant Dr. Dan Burwell (family medicine) 680 Park Ave. West, Suite 204, Mansfield, OH 44907 (419) 524-1410 1995 to present UTI, yeast infection Dr. Rittenberry (endocrinologist) 7281 Sawmill Rd., Suite 100, Dublin, OH 43106 2009 to present Thyroid Dr. Omar Guimaraes (OB/gyn) 24 Morris Street, Shelby, OH 448715 (419) 432-2900 2009 to present Checkups 8 Case 4:13-cv-00323-CDL Document 40-5 Filed 08/29/16 Page 9 of 23 Case 4:11-cv-05080-CDL Document 8-1 Filed 11/21/11 Page 14 of 31 Identify each pharmacy, drugstore or any other facility or supplier (including but not limited to mail order pharmacies) where you ever received any prescription medication for the period ten years before your ObTape surgery to the present. Name of Pharmacy/Supplier Address and Telephone Number of Pharmacy/Supplier Approx Dates/Years You Used Pharmacy/Supplier Meijer 1355 North Lexington Springrnill Road, Mansfield, OH 44907 (419) 747-8300 1998 to 2004 Krogers 1600 Ashland Road, Mansfield, OH 44905 (419) 589-3693 2005 to present Rite-Aid 1075 Ashland Road, Mansfield, OH 44905 (419) 589-8843 1995 to 1999 Medco/Express Scripts Mail order (877) 429-8414 2007 to present 8 Case 4:13-cv-00323-CDL Document 40-5 Filed 08/29/16 Page 10 of 23 Case 4:11-cv-05080-CDL Document 8-1 Filed 11/21/11 Page 15 of 31 1. Current Height: 5'4" V. MEDICAL BACKGROUND 2. Please state your weight at the following times: (a) Current: 128 (b) Time of implant: 121 (c) Time of explant/excision surgery (if any): 123 3. Smoking History (a) Have you ever smoked cigarettes? Yes No X State amount smoked: packs per day for years, during the years to 4. Other Conditions (a) To the best of your knowledge, have you ever experienced or been diagnosed with any of the following conditions from the time beginning ten years before your ObTape surgery to the present? Please select Yes or No for each condition. For each condition for which you answer Yes, please provide the additional information requested in the table following this chart: Condition Experienced or Diagnosed Yes No Don't Know 1. Abnormal pap smear x 2. Autoimmune disease x 3. Bacterial vaginosis x 4. Cervical cancer x 5. Cystocele x 6. Diabetes x 7. Endometriosis x 8. Gestational diabetes x 9. Hormone deficiency x 10. Hypertension/high blood pressure x 11. Interstitial cystitis x 12. Obesity x 13. Ovarian cancer x 14. Pelvic inflammatory disease x 15. Polycystic ovary disease x Case 4:13-cv-00323-CDL Document 40-5 Filed 08/29/16 Page 11 of 23 Case 4:11-cv-05080-CDL Document 8-1 Filed 11/21/11 Paae 16 of 31 Condition Experienced or Diagnosed Yes No Don't Know 16. Rectocele x 17. Stress urinary incontinence x 18. Thyroid disorder x 19. Toxic shock syndrome x 20. Urethral erosion x 21. Urinary tract infection x 22. Urge incontinence x 23. Uterine cancer x 24. Vaginal erosion x 25. Vaginal infection x 26. Venereal disease x 27. Yeast infection x (b) For each condition for which you answered Yes in the previous chart, please provide the information requested below: Condition You Experienced Approximate Date of Onset Name, Address and Telephone Number of Treating Physician (if any) Treatment Received Abnormal pap 1995 Dr. Wilson* LEEP Abnormal pap 2003 Dr. Alford* Biopsy Abnormal pap 2012 Dr. Guimaraes* Cervical Culture Abnormal pap 2007 Dr. Huggins* LEEP Incontinence 2000 to 2013 Dr. Woodworth* Mentor implant Thyroid (tired/cold) 2008 Dr. Burwell* Thyroid meds UTI 1987 Dr. Burwell* Meds Yeast infection 2004 Dr. Burwell* Meds *Physician addresses see Section IV above. 10 Case 4:13-cv-00323-CDL Document 40-5 Filed 08/29/16 Page 12 of 23 Case 4:11-cv-05080-CDL Document 8-1 Filed 11/21/11 Page 17 of 31 VI. MEDICATIONS 1. List all of the medications (prescription and over the counter) you currently take. Medication Dose/ Frequency/Dates of Use Physician Ordering Pharmacy Dispensing Purpose Tirosint 75 mg, 1 per day Dr. Rittenberry Express Meds Thyroid Frova 10 mg, as needed Dr. Burwell Krogers Migraines 2. To the best of your recollection, are there any prescription medications other than those identified that you have taken on a regular basis for any duration of more than two months for the period ten years before your ObTape surgery to the present? Yes X No If Yes, please identify the medication(s), the doctor(s) who prescribed it, the approximate dates/years you have taken this medication, and why it was given to you: Medication Dose/ Frequency/Dates of Use Physician Ordering Pharmacy Dispensing Purpose Yaz lx per day Dr. Alford 1995 to 2000 Prevent pregnancy 11 Case 4:13-cv-00323-CDL Document 40-5 Filed 08/29/16 Page 13 of 23 Case 4:11-cv-05080-CDL Document 8-1 Filed 11/21/11 Pam 18 of 31 VII. IMPLANT ANT)EXCISION/REMOVAI, 1. Describe the condition for which the ObTape was implanted: Stress urinary incontinence. 2. Before the implantation of the ObTape, did you receive non-surgical treatment for your stress urinary incontinence? Yes No X (a) State the period during which you received non-surgical treatment: (b) State the nature of the non-surgical treatment (e.g., physical therapy, medication, injections): (c) State the name and address of all doctors or health care providers involved in your non-surgical treatment: 3. Did you see, read or rely upon any documents or other information from Mentor in making your decision to have the ObTape implanted? Yes X No (a) If Yes, identify each document/source of information. Dr. Alford and/or Dr. Woodworth provided plaintiff with a pamphlet. Plaintiff does not presently recall whether this was issued by Mentor or whether she relied upon this information. (b) When did you read the document/receive the information? 2004 (c) How did you obtain the document or information? Pamphlet was provided by Dr. Alford and/or Dr. Woodworth. 12 Case 4:13-cv-00323-CDL Document 40-5 Filed 08/29/16 Page 14 of 23 Case 4:11-cv-05080-CDL Document 8-1 Filed 11/21/11 Page 19 of 31 (d) Do you have the document or written information in your possession? If so, please produce a copy of it together with your answers to the Plaintiff Fact Sheet. Yes No X I don't know 4. Have you had any communications with any present or former employee of Mentor or concerning ObTape or matters in any way related to this lawsuit? Yes No X If Yes, for each, please state: Date of Communication Name of Person with Whom You Communicated Mode of Communication (In Person, By Phone, By Email, By Mail) Do you have a writing or recording? (if SO, PLEASE ATTACH) If the communication was by phone or in-person, please tell us what was said: 13 Case 4:13-cv-00323-CDL Document 40-5 Filed 08/29/16 Page 15 of 23 Case 4:11-cv-05080-CDL Document 8-1 Filed 11/21/11 Paae 20 of 31 VIII. INJURIES & DAMAGES 1. Are you claiming any physical injuries or illness as a result of the ObTape? Yes X No If Yes, please describe in detail the following: (a) The physical injuries or illness claimed and when the symptoms began: As a result of plaintiff's implant plaintiff was caused to suffer, sling miKration, revision surgery, extrusion, painful intercourse, discharge, odor, itching, infection, pain, and all of the pain and soffering and the natural resulting sequelae Plaintiff adopts and incorporates by reference her medical records for which defendants have been provided duly executed authorizations to obtain additional related injuries set fort therein,gs well gs Ake full extent 9f treatments she received as a result of her implant. Further, plaintiff maintains all claims for past and future medical expenses as well as economic loss (which may be set forth herein) as vyell as other injuries and damages compensable under the law. Plaintiff reserves the right to supplement and/or atripnri tbic recrnrice, (b) Are those injuries or illnesses continuing? Yes X No (c) Provide the name and address of each health care provider that you have seen for these problems: Condition You Experienced Name, Address and Telephone Number of Health Care Provider (if any) Sling migration/revision surgery Dr. Ward* Painful intercourse Dr, Huggins* Discharge/odor/itching Dr. Huggins* Infection Dr. Burwell* Pain Dr. Huggins* Incontinence Dr. Woodworth* *Physician addresses see Section IV above. 14 Case 4:13-cv-00323-CDL Document 40-5 Filed 08/29/16 Page 16 of 23 Case 4:11-cv-05080-CDL Document 8-1 Filed 11/21/11 Page 20 of 31 2. Have you ever been hospitalized as a result of any of these conditions? Yes No X If Yes, please provide the following information: (i) Approximate date(s) of hospital admission: (ii) Approximate date(s) of discharge: (iii)Hospital names(s) and address(es): 3. Do you claim any psychological or psychiatric injury (other than garden variety emotional distress) as a consequence of having the ObTape? Yes No X If Yes, please state the following as it pertains to your treatment for any psychiatric and/or psychological condition(s): Condition Name and Address of Mental Healthcare Provider (if any) Approx. Dates/Years of Treatment/Visits (if any) 4. Are you making a claim for lost wages or lost earning capacity? Yes No X (a) If Yes, describe your claim and attach your W-2 forms for the relevant years. Your description should include the total amount of time (and amount of income) which you have lost or will lose from work as a result of any condition which you claim or believe was caused by the ObTape, and an explanation of how those amounts were calculated: 15 Case 4:13-cv-00323-CDL Document 40-5 Filed 08/29/16 Page 17 of 23 Case 4:11-cv-05080-CDL Document 8-1 Filed 11/21/11 Page 21 of 31 (b) If you claim a loss of earnings, state your earned income from work for the following years: YEAR INCOME 2012 $ 2011 $ 2010 $ 2009 $ 2008 $ 2007 $ 2006 $ 2005 $ 2004 $ 2003 $ 5. Is your spouse claiming loss of consortium? Yes X No 6. Is your spouse claiming physical injury from the ObTape? Yes No X If Yes, please describe in detail the following: (a) The physical injuries claimed and the approximate date of treatment for each injury, and identify the name and address of each health care provider that your spouse has seen for these problems: Condition Spouse Experienced Approximate Date of Treatment Name, Address and Telephone Number of Health Care Provider (if any) 16 Case 4:13-cv-00323-CDL Document 40-5 Filed 08/29/16 Page 18 of 23 Case 4:11-cv-05080-CDL Document 8-1 Filed 11/21/11 Page 22 of 31 IX. MEDICAL AND OUT EXEEZISES 1. State the amount of medical expenses, by provider, which you have incurred, including amounts billed to insurers and other third party payors, which are related to any condition which you claim or believe was caused by the ObTape for which you seek recovery in this action: Name and Address of Provider Dates of Treatment Description of Treatment Amount of Medical Expenses $ $ $ $ $ For any expenses claimed above, have they been reimbursed by any third party? n/a Yes No If Yes, identify which expenses, the amount reimbursed and the date reimbursed. 17 Case 4:13-cv-00323-CDL Document 40-5 Filed 08/29/16 Page 19 of 23 Case 4:11-cv-05080-CDL Document 8-1 Filed 11/21/11 Page 23 of 31 X. FACT 'WITNESSKS Please identify all persons whom you believe possess information concerning you injury(ies) and current medical conditions, other than your healthcare providers, and please state their name, address, and relationship to you: Name: Joseph Brown Address: 521 Impala Dr., Mansfield, OH 44903 Relationship to you: Husband Name: Evelyn Rogers Address: 600 Dogwood Cir., Mansfield, OH 44903 Relationship to you: Mother 18 Case 4:13-cv-00323-CDL Document 40-5 Filed 08/29/16 Page 20 of 23 Case 4:11-cv-05080-CDL Document 8-1 Filed 11/21/11 Page 24 of 31 Xl. pOCUMENT DEMANDS These document requests are not intended to seek attorney client communications, or attorney work product materials. In addition, these requests do not encompass or seek information about expert witnesses or communications with and/or from experts or proposed trial exhibits or trial materials which may be subject to disclosure at a later date in accordance with subsequent Court Order or rule. Thus, if you have any of the following in your possession which is not protected as set forth above, please provide a copy of it with this Plaintiff Fact Sheet. REOUEST N0.1: All medical records (including, but no limited to, all charts, hospital records, consent forms, treating physician records, photographs, videotapes/DVDs, drawings, X- rays, ultrasounds, MRIs, CT scans, radiographs, angiograms, blood tests, laboratory reports, prescriptions, spirometry tests, electrocardiograms, urine tests, blood gases tests, psychometric tests, neuropsychological tests, stress tests, notes, telephone messages) from any physician, hospital, clinic, health care provider, pharmacy, psychiatrist, psychologist, counselor or therapist created since 1990 reflecting, referring or relating to Plaintiff REOUEST NO. 2: All medical bills for which plaintiff seeks recovery in this lawsuit, as well as all documents relating to third-party payments of medical bills. REOUEST NO. 3: All records of any other expenses (including, but not limited to, nursing services, outpatient care, home health care, lost wages, etc.) allegedly incurred as a result of the injuries alleged in the complaint. REOUEST NO. 4: All photographs and videos of plaintiff's surgery and all photographs and videos of plaintiff which show plaintiffs condition since the date of the original implantation. REOUEST NO. 5: Any documents including but not limited to literature, warnings or informed consent forms received by you from surgeons, physicians, or other health care professionals who have treated you for any condition related to ObTape. 19 Case 4:13-cv-00323-CDL Document 40-5 Filed 08/29/16 Page 21 of 23 Case 4:11-cv-05080-CDL Document 8-1 Filed 11/21/11 Pace 25 of 31 XII. AUTHORIZATIONS Complete and sign the Authorization attached as Exhibit A. 20 Case 4:13-cv-00323-CDL Document 40-5 Filed 08/29/16 Page 22 of 23 Case 4:11-cv-05080-CDL Document 9-1 Filed 11J22/11 Page 22 of 27 xra VERIFICATION I declare under penalty of perjury that all of the information provided in this Plaintiff Fact Sheet is true and correct to the best of my knowledge upon information and belief, that I have supplied all the documents requested in part XI of this declaration, to the extent that such documents are in my possession, custody, or control, or in the possession, custody, or control of my lawyers, and that I have supplied the authorization attached to this declaration. Date: q, tfi 1(3 21 Signature Case 4:13-cv-00323-CDL Document 40-5 Filed 08/29/16 Page 23 of 23 EXHIBIT C Case 4:13-cv-00323-CDL Document 40-6 Filed 08/29/16 Page 1 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION IN RE MENTOR CORP. OBTAPE ) MDL CASE NO. TRANSOBTURATOR SLING ) 4:08-MD-2004 (CDL) PRODUCTS LIABILITY 'LITIGATION ) Individual Case No. ) 4:13-cv-00323 (Brown) Videotaped Deposition of ERIC S. WARD, M.D. July 22, 2016 12:54 p.m. Taken at Poling Law 300 East Broad Street, Suite 350 Columbus, Ohio Ann Ford, RPR, Notary Public Job No. CS2341883 800-567-8658 Veritext Legal Solutions 973-410-4040 Case 4:13-cv-00323-CDL Document 40-6 Filed 08/29/16 Page 2 of 7 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 46 under anesthesia, and it allows you -- because, obviously, patients can be uncomfortable in the office. And so you can get -- and you can also get better lighting, better exposure, and so it's a -- just a thorough vaginal exam. Q. Okay. If we look at the bottom paragraph on this first page of Exhibit 4, it says, "The anterior wall was thoroughly inspected. There was a clear area of extrusion of the sling material that was able to be seen in the left anterior recess." Can you describe to the jury what you encountered based on what you're reading here? A. Basically, I could see the mesh material in the upper left corner basically in the vagina periurethral, which is where this, you know, sling would be. Q. Okay. And you noted that the portion was actually almost 2 centimeters in length; is that correct? A. Correct. Estimated by this record. Q. Doctor, from a clinical standpoint, what are some of the things that can cause mesh erosion? 800-567-8658 Veritext Legal Solutions 973-410-4040 Case 4:13-cv-00323-CDL Document 40-6 Filed 08/29/16 Page 3 of 7 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 50 A. Yes. The exposed -- the part that was exposed, I clearly described as I was able to remove. Q. Okay. You note, "The sling material actually dislodged from just inside the hole where it was protruding from, and this appeared to get back to an area of more normal appearing sling mesh material," correct? MR. JANIS: Form. A. Is as it's stated, correct. Q. Okay. It says, "This segment was completely removed. The portion of the anterior vaginal wall behind the area where the extrusion sling had completely mucosalized, and this was left intact." Do you see that? A. Yes. Q. Can you explain in lay terms what that means? A. It basically means I was able to remove the part of the sling that was extruded without having to remove the rest of it, which would clearly be a much more, you know, significant dissection, just up inside the 800-567-8658 Veritext Legal Solutions 973-410-4040 Case 4:13-cv-00323-CDL Document 40-6 Filed 08/29/16 Page 4 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 54 you now Exhibit 5, and this is a letter dated January 21 but discussing a January 10 follow-up visit with Ms. Brown. Do you recognize this? A. I do. Q. Okay. And on January 21, or at least that's when this record was transcribed, you wrote that "Ms. Brown was in the office on January 10, 2008, for a follow-up visit. She is status post excision of a portion of extruded urethral sling mesh from her prior sling procedure. She tolerated the procedure nicely. She's doing very well now and states her dis- -- states her discharge that she had been having for two years has now completely resolved. She has essentially no recurrence of the stress incontinence either and so, therefore, this has been an outstanding outcome for her." Doctor, it was your assessment when you wrote this note in January of 2008 that this patient had an outstanding outcome, correct? MR. JANIS: Form. Leading. A. Correct. That is what I have 800-567-8658 Veritext Legal Solutions 973-410-4040 Case 4:13-cv-00323-CDL Document 40-6 Filed 08/29/16 Page 5 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 55 stated. Q. Okay. Even after you trimmed the mesh under anesthesia, she still remained continent, correct? A. Correct. MR. JANIS: Form. Leading. BY MR. LINNICK: Q. Okay. And she wasn't presenting with any other problems to you as of January of 2008, correct? MR. JANIS: Form. Leading. Foundation. A. Based upon this medical record, correct. Q. Okay. When you're performing a procedure like this where you remove mesh, when the patient comes back to you for the follow-up visit, do you tell them what you did? A. Yes. Q. Okay. So you would have told Ms. Brown in 2008 that you removed some of her mesh during that late 2007 procedure, correct? A. Yes. Q. Okay. Do you recall any other conversations with Ms. Brown other than 800-567-8658 Veritext Legal Solutions 973-410-4040 Case 4:13-cv-00323-CDL Document 40-6 Filed 08/29/16 Page 6 of 7 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 70 I do further certify that I am not a relative, counsel or attorney for either party, or otherwise interested in the event of this action. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal of office at Cleveland, Ohio, on this 27th day of July, 2016. Ann Ford, Notary Public within and for the State of Ohio My commission expires April 18, 2021. 800-567-8658 Veritext Legal Solutions 973-410-4040 Case 4:13-cv-00323-CDL Document 40-6 Filed 08/29/16 Page 7 of 7 EXHIBIT D Case 4:13-cv-00323-CDL Document 40-7 Filed 08/29/16 Page 1 of 7 In re Mentor Corp. ObTape Transobturator Sling Products..., Not Reported in... 2013 WL 286276 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 ORDER CLAY D. LAND, District Judge. *1 The summary judgment motions of Defendant Mentor Worldwide LLC (“Mentor”) as to the actions filed by Plaintiffs Carol Cline (“Cline”) and Irene Morey (“Morey”) (collectively, “Plaintiffs”) present choice of law issues that are dispositive of the pending motions. Both of these product liability actions were originally filed in the United States District Court for the District of Minnesota before being transferred to this Court for pretrial proceedings by the Judicial Panel on Multidistrict Litigation. In both cases, Plaintiffs, who were surgically implanted with Mentor's suburetheral stress urinary incontinence sling product, ObTape Transobturator Tape (“ObTape”), allege that ObTape was defectively designed and/or manufactured, that it proximately caused their injuries, and that Mentor did not adequately warn their physicians about the risks associated with ObTape. Plaintiffs contend that Mentor has a strong connection to Minnesota and that Minnesota law applies to their claims. Mentor seeks summary judgment on the issue of which state's law is applicable to each Plaintiff's claims. Mentor argues that Ohio substantive law governs Cline's claims because she is an Ohio resident who was implanted with ObTape and had all relevant medical treatment in Ohio. Mentor contends that if the Court grants Mentor's summary judgment motion on the choice of law issue, then Cline's action should be dismissed without prejudice because she failed to reference the Ohio Product Liability Act in her Complaint. Mentor maintains that Washington law applies to Morey's claims because that is where she was implanted with ObTape and where she received treatments related to the alleged failure of the product. Mentor contends that if the Court applies Washington substantive law to Morey's claims, then it must also apply Washington's statute of limitations, which would bar Morey's claims. For the reasons set forth below, the Court finds that Minnesota law applies to the claims of Cline and Morey. Therefore, Mentor's Motion for Summary Judgment against Cline (ECF No. 58 in 4:10–cv–5060) is denied, as is Mentor's Motion for Summary Judgment against Morey (ECF No. 51 in 4:11–cv– 5065). In addition, Morey's Motion to Amend (ECF No. 36 in 4:11–cv–5065) 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.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.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 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. DISCUSSION *2 The Judicial Panel on Multidistrict Litigation transferred Plaintiffs' diversity actions from the United States District Court for the District of Minnesota to this Court for pretrial proceedings. Therefore, the Court must apply the choice-of- law rules of Minnesota, the transferor forum, to determine which state law controls. In re Gen. Am. Life Ins. Co. Sales Practices Litig., 391 F.3d 907, 911 (8th Cir.2004); accord Murphy v. Fed. Deposit Ins. Corp., 208 F.3d 959, 965 (11th Cir.2000) (“Our system contemplates differences between different states' laws; thus a multidistrict judge asked to apply Case 4:13-cv-00323-CDL Document 40-7 Filed 08/29/16 Page 2 of 7 In re Mentor Corp. ObTape Transobturator Sling Products..., Not Reported in... 2013 WL 286276 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 divergent state positions on a point of law would face a coherent, if sometimes difficult, task.”) (internal quotation marks omitted). Under Minnesota law, the Court must first determine whether there is an actual conflict “between the laws of [the] two forums.”Nodak Mut. Ins. Co. v. Am. Family Mut. Ins. Co., 604 N.W.2d 91, 93–94 (Minn.2000). If there is no actual conflict regarding substantive law or if the law at issue is procedural, then the Court may apply Minnesota law. Christian v. Birch, 763 N.W.2d 50, 58 (Minn.Ct.App.2009). If there is an actual conflict, then the Court must determine “whether the law of both states can be constitutionally applied.”Jepson v. Gen. Cas. Co. of Wis., 513 N.W.2d 467, 469–70 (Minn.1994). Finally, if there is an actual conflict but no constitutional impediment exists for the application of either state's law, the Court must apply the “significant contacts test,” which consists of five “choice-influencing factors .” Nodak Mut. Ins. Co., 604 N.W.2d at 94. At this stage of the proceedings, the facts are viewed in the light most favorable to the Plaintiffs. I. Mentor's Connection to Minnesota Mentor distributed ObTape in the United States between 2003 and 2006. Pl.' Cline's Statement of Additional Facts Relevant to Mentor's Mot. for Summ. J. Attach. 8, Wyatt Decl. ¶ 41, ECF No. 59–8 in 4:10–cv–5060. It is undisputed that “Mentor Corporation” was incorporated in Minnesota from 1969 to 2009. It is also undisputed that, “for regulatory purposes, Mentor Minnesota was the designated manufacturer and distributor of ObTape and ObTape introducer needles.”Def.'s Resp. to Pl. Morey's Statement of Additional Facts Relevant to Mentor's Mot. for Summ. J. ¶ 17, ECF No. 59–2 in 4:11–cv–5065. Mentor's 2003 510(k) Premarket Notification submission to the Food and Drug Administration lists “Mentor Minneapolis” as the “Manufacturer” of ObTape with an address in Minneapolis, Minnesota. Pl. Cline's Statement of Additional Facts Relevant to Mentor's Mot. for Summ. J. Attach. 7, 510(k) Premarket Notification at MENTOR/ OBTAPE CONFIDENTIAL—058373, ECF No. 59–7 in 4:10–cv–5060. The 510(k) also lists Analytic Biosurgical Solutions (ABISS) in France as the “Contract Manufacturer.” Id. It is undisputed that Mentor's Minnesota employees were responsible for assuring that ObTape conformed to specifications. Specifically, a quality inspection manager at “Mentor Minnesota” reviewed certificates of conformity provided by the contract manufacturer and made sure that “[n]o ObTape was shipped unless [it] was accompanied by a certificate of conformity. Wyatt Decl. ¶¶ 17–19. It is further undisputed that Mentor's product evaluation department was in Minnesota and was responsible for investigating complaints associated with ObTape, making adverse consequences reports to the United States Food and Drug Administration (“FDA”), and training sales representatives regarding adverse events. Mentor's 510(k) for ObTape states that any complications from the use of ObTape should be reported to Mentor's quality assurance department in Minneapolis, Minnesota and that Mentor would analyze any explanted devices. 510(k) Premarket Notification at MENTOR/OBTAPE CONFIDENTIAL_058409 to 058410. Mentor admits that complications associated with ObTape that were known to Mentor were subject to internal investigations at Mentor's facilities in Minnesota. Mentor contends that investigation of issues related to ObTape was not limited to Mentor's Minnesota location, but Mentor did not point to any evidence in support of this contention. *3 Mentor asserts that “Mentor Corporation” merged into “Mentor Worldwide LLC” in 2009 and is now a citizen of New Jersey. Def.'s Resp. to Pl. Cline's Statement of Additional Facts Relevant to Def.'s Mot. for Summ. J. ¶ 1, ECF No. 63–3. II. Cline's Action Cline is a resident of the State of Ohio. All medical treatment related to Cline's claims occurred in Ohio. Cline experienced symptoms of urinary incontinence and was referred to a urologist in 2004. The urologist implanted Cline with ObTape in November 2004. In April 2006, Cline returned to the urologist because she was experiencing pain, bleeding, and discharge. The urologist conducted an examination and found an erosion of the ObTape. He removed the exposed portion of ObTape and sent it to pathology. Cline filed her action in the United States District Court for the District of Minnesota on September 24, 2010. Cline asserts claims for strict liability, negligence, breach of warranty, failure to warn, and punitive damages. Cline contends that Mentor “was negligent in designing, manufacturing, marketing, labeling, packaging, and selling the Ob[ ]Tape and in failing to warn [Cline] of the defective nature of its product.”Cline Compl. ¶ 15, ECF No. 1 in 4:10– cv–5060. III. Morey's Action Case 4:13-cv-00323-CDL Document 40-7 Filed 08/29/16 Page 3 of 7 In re Mentor Corp. ObTape Transobturator Sling Products..., Not Reported in... 2013 WL 286276 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 Morey is a resident of the State of Washington. All medical treatment related to Morey's claims occurred in Washington. In 2003, Morey consulted her urologist, Dr. Kathleen Kobashi, regarding bladder prolapse, urge incontinence, and stress urinary incontinence. Dr. Kobashi implanted Morey with ObTape on December 29, 2004. Following the surgery, Morey suffered from several complications, including discharge, vaginitis, and extrusion of the ObTape. On June 14, 2005, Morey was examined by Dr. Fred Govier, who told Morey that she had an erosion and that he needed to remove as much of the ObTape as possible. Dr. Govier told Morey that the problems she had experienced were because of her sling. Dr. Govier also told Morey that he and Dr. Kobashi had stopped using ObTape by that point. Neither Dr. Govier nor Dr. Kobashi specifically told Morey that they believed ObTape was defective. Morey contends that she first learned that her sling might be defective in 2011, when her son-in-law saw something on television regarding sling products. Morey Decl. ¶ 8, ECF No. 55 in 4:11–cv–5065. Morey filed her action in the United States District Court for the District of Minnesota on May 11, 2011. Morey's Complaint asserts a claim for negligence. She contends that Mentor “failed to exercise ordinary and reasonable care in designing, manufacturing, testing, marketing, labeling, packaging, selling and/or distributing the Mentor ObTape vaginal sling [and] negligently failed to provide adequate warnings and instructions to [Morey] and to her physicians regarding the Mentor ObTape vaginal sling.”Morey Compl. ¶ 23, ECF No. 1 in 4:11–cv–5065. Morey also contends that Mentor was negligent “by failing to promptly and adequately notify [Morey, her] doctors, the medical community, and the public at the earliest possible date of known defects in the Mentor ObTape vaginal sling.”Id. ¶ 24.Morey also seeks to add a claim for punitive damages. See Pl. Morey's Mot. to Amend, ECF No. 36 in 4:11–cv–5065. IV. Application of Minnesota Choice of Law Principles A. Is There an Actual Conflict Between Minnesota Law and the Law of Ohio and Washington? *4 An actual conflict of law “exists if the choice of one forum's law over the other will determine the outcome of the case.”Nodak Mut. Ins. Co., 604 N.W.2d at 94. Regarding Cline's claims, it is undisputed that Minnesota permits common law product liability claims, while product liability claims in Ohio are governed by the Ohio Product Liability Act (“OPLA”), Ohio Rev.Code Ann. §§ 2307.71–2307.80. The OPLA was “intended to abrogate all common law product liability claims or causes of action.”Ohio Rev.Code Ann. § 2307.71(B). Although Cline and Mentor appear to agree that an actual conflict exists between Ohio law and Minnesota law, the Court is skeptical as to whether this difference is outcome determinative as contemplated by Minnesota's choice of law rules. It is undisputed that Minnesota permits common law product liability claims couched in terms of strict liability and negligence, while Ohio has abrogated such claims, replacing them with a statutory cause of action for product liability. It is unclear, however, that the differences in these types of causes of action would make any difference in the outcome of this lawsuit. Neither party pointed to any outcome determinative differences between the product liability law in Minnesota and Ohio. As the Court understands Minnesota choice of law principles, mere differences in the law are not sufficient to authorize the application of the law from the non- forum state. Those differences must affect the outcome. The present record does not demonstrate how Cline's proof and Mentor's defenses would be different, as a practical matter, if Cline's claims are pursued under Minnesota's common law product liability principles instead of under Ohio's product liability statute. Although the Court doubts that any practical outcome determinative difference has been demonstrated by the present record, the Court nevertheless assumes for purposes of the remainder of this Order that such a difference does exist given the fact that Cline has made no effort to contest that assumption. Regarding Morey's action, product liability claims in Washington are governed by the Washington Product Liability Act (“WPLA”), Wash. Rev.Code § 7.72.010, et seq. Like Ohio's product liability statute, the WPLA preempts common law product liability remedies. Washington Water Power Co. v. Graybar Elec. Co., 774 P.2d 1199, 1207 (Wash.1989) (“[T]he WPLA creates a single cause of action for product-related harms that supplants previously existing common law remedies.”). A WPLA “product liability claim” includes any claim previously based on negligence. Wash. Rev.Code § 7.72.010(4). If a plaintiff brings product liability claims under both the WPLA and a common law negligence theory, the “the negligence theory is subsumed under the WPLA product liability claim .”Macias v. Saberhagen Holdings, Inc., 282 P.3d 1069, 1074 (Wash.2012). Although differences certainly exist between Minnesota and Washington law, the parties, like the parties in Cline, failed to demonstrate how those differences will affect the outcome based on the facts presented by the Case 4:13-cv-00323-CDL Document 40-7 Filed 08/29/16 Page 4 of 7 In re Mentor Corp. ObTape Transobturator Sling Products..., Not Reported in... 2013 WL 286276 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 present record. Accordingly, the Court is skeptical that an outcome determinative difference exists. Nevertheless, given that Morey did not challenge Mentor's argument that an outcome determinative difference exists, the Court assumes that such a difference does exist for purposes of this Order and moves to the next step of the choice of law analysis. B. Can Minnesota Law Be Constitutionally Applied? *5 The next question is whether the law of each state can be constitutionally applied. It is undisputed that the law of Ohio can be constitutionally applied to Cline's claim and that the law of Washington can be constitutionally applied to Morey's claim. Mentor contends, however, that Minnesota law cannot be constitutionally applied. For Minnesota's law to be selected in a constitutionally permissible manner, Minnesota “must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair .”Jepson, 513 N.W.2d at 469. In support of its argument that Minnesota law cannot be constitutionally applied here, Mentor cites an unreported federal district court case, Newman v. Stryker Sales Corp., Civ. No. 09–2866 (JRT/JJK), 2010 WL 3926200 (D.Minn. Sept. 30, 2010). In Newman, the plaintiff was an Ohio resident who was implanted with the defendant's product in Ohio. Id. at *1. The defendant was a Michigan corporation whose only contact with Minnesota was that it conducted business unrelated to the plaintiff there. Id. When the defendant argued that it would be arbitrary and fundamentally unfair to apply Minnesota law under these circumstances, the plaintiff did not oppose that assertion. Id. at *10.Therefore, the court found that Minnesota law could not be constitutionally applied. Id. Newman is readily distinguishable from the facts in this action. Here, Mentor's significant contacts with Minnesota at the time of the events giving rise to both Cline's and Morey's actions are sufficient to render application of Minnesota law constitutionally permissible. It is undisputed that “Mentor Corporation” was incorporated in Minnesota until 2009. As discussed above, it is also undisputed that Mentor completed several key manufacturing tasks in Minnesota, including ObTape quality control, and that Mentor represented to the FDA that ObTape was manufactured by Mentor in Minnesota. It is further undisputed that Mentor's Minnesota employees were responsible for evaluating any complaints regarding ObTape and for making adverse consequences reports to the FDA. Mentor's Minnesota employees were also responsible for training sales representatives regarding adverse events. Finally, it is undisputed that any explanted ObTape was to be sent to Mentor in Minnesota for analysis and that complications associated with ObTape were subject to investigation at Mentor's Minnesota facilities. Thus, when Mentor marketed ObTape to Plaintiffs' physicians and provided warnings about the product, Mentor was a Minnesota company. When ObTape was manufactured, quality controlled, distributed, and implanted into Plaintiffs' bodies, Mentor was a Minnesota company. And when Plaintiffs experienced complications with ObTape and the ObTape had to be explanted, Mentor was a Minnesota company. Accordingly, it is constitutionally permissible for Minnesota law to be applied to Plaintiffs' claims. See Jepson, 513 N.W.2d at 470 (finding that Minnesota law could constitutionally be applied to dispute regarding application of a North Dakota insurance policy to a car accident that occurred in Arizona because of the plaintiff's sufficient contacts with Minnesota). C. iChoice–Influencing Factors *6 Having assumed for purposes of this Order that there is an actual conflict between Minnesota law and the law of Ohio and Washington and having found no constitutional impediment to the application of the law of any of these states to the respective claims, the Court next evaluates the five choice influencing factors employed by the Minnesota courts: “(1) predictability of result; (2) maintenance of interstate and international order; (3) simplification of the judicial task; (4) advancement of the forum's governmental interest; and (5) application of the better rule of law.”Id. 1. Predictability of Result “This factor addresses whether the choice of law was predictable before the time of the transaction or event giving rise to the cause of action.”Schumacher v. Schumacher, 676 N.W.2d 685, 690 (Minn.Ct.App.2004). This factor is not usually considered in tort cases because many tort cases, such as car accident cases, result from accidental encounters and not consensual transactions. Nodak Mut. Ins. Co., 604 N.W.2d at 94. Neither Plaintiff's action resulted from an accidental encounter; Plaintiffs (or their surgeons) intentionally selected Mentor's product to treat their symptoms. “Applying Minnesota law to product- liability cases involving a Minnesota manufacturer enables the manufacturer ... to know the rules that will govern [its] transactions.”Kolberg–Pioneer, Inc. v. Belgrade Steel Tank, 823 N.W.2d 669, 673 (Minn.Ct.App.2012) (finding that predictability of results favored application of Minnesota Case 4:13-cv-00323-CDL Document 40-7 Filed 08/29/16 Page 5 of 7 In re Mentor Corp. ObTape Transobturator Sling Products..., Not Reported in... 2013 WL 286276 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 law in an action by a seller against a Minnesota manufacturer for indemnity related to a product failure that occurred in Montana). Mentor cannot seriously dispute that it was reasonably aware that its connection to Minnesota at the time Cline and Morey were implanted with its product would authorize the application of Minnesota substantive law to a claim brought in the state of Minnesota. The Court finds that the first factor weighs in favor of applying Minnesota law. 2. Maintenance of Interstate and International Order In evaluating this factor, the courts “are primarily concerned with whether the application of Minnesota law would manifest disrespect for [another state]' s sovereignty or impede the interstate movement of people and goods. Jepson, 513 N.W.2d at 471. “An aspect of this concern is to maintain a coherent legal system in which the courts of different states strive to sustain, rather than subvert, each other's interests in areas where their own interests are less strong.”Id. Here, both Cline and Morey's claims have genuine contacts with Minnesota because their ObTape was manufactured and sold by Mentor while Mentor was a Minnesota corporation. Even though they received ObTape in their home states and allegedly suffered injury there, the Court cannot find that application of the law of the state where the product was manufactured in an action filed in that state would thwart the legitimate interest of any other state in having its law applied to such an action, particularly when the plaintiff voluntarily files her claim in Minnesota and rejects any protections that may be available to her under the law of her home state. Therefore, the Court concludes that this second factor does not weigh in favor of applying Ohio law to Cline's claim or Washington law to Morey's claim. 3. Simplification of the Judicial Task *7 The Court finds that the judicial task is not complicated by the application of either state's law. This third factor is neutral. 4. Advancement of the Forum's Governmental Interest “The fourth choice influencing factor is which choice of law most advances a significant interest of the forum.”Jepson, 513 N.W.2d at 472. “This factor is designed to ensure that Minnesota courts do not have to apply rules of law that are inconsistent with Minnesota's concept of fairness and equity.”Schumacher, 676 N.W.2d at 691(internal quotation marks omitted).“In considering which law will advance the governmental interest of Minnesota,” the Court must consider “the public policy of both forums.”Id. Minnesota has “weighty interest in compensating tort victims” and also “a clearly expressed public policy in holding a product's maker responsible for the costs of a defective product.”Kolberg–Pioneer, Inc., 823 N.W.2d at 675. In enacting their product liability statutes, both Ohio and Washington, like Minnesota, expressed an interest in vindicating the rights of those who have been legitimately harmed by a defective product. Even though Ohio and Washington may take a different approach than Minnesota, the Court cannot find based on the present record that Minnesota law is in conflict with the public policy underlying the Ohio and Washington product liability statutes. The Court finds that the fourth factor favors application of the law of the forum in which the actions were filedMinnesota. 5. Application of the Better Rule of Law The fifth and final choice influencing factor “is whether, in an objective sense, [Ohio/Washington] or Minnesota has the better rule of law.”Jepson, 513 N.W.2d at 472. In general, “this factor is addressed only when the other four factors are not dispositive as to which state's law should be applied.”Schumacher, 676 N.W.2d at 691–92. Mentor appears to misunderstand this factor and argues that the better rule of law is applying the law of Plaintiffs' home states to their claims. The factor, however, is intended to inquire into which state's substantive law provides the better rule. Jepson, 513 N.W.2d at 473. Here, the relevant question is whether it is better to have remedies available only within the framework of a product liability statute or to permit common law claims in product liability cases. Neither party offers a compelling explanation of which approach is the better rule. “Sometimes different laws are neither better nor worse in an objective way, just different.”Id. For these reasons, the Court concludes that the final factor is neutral. 6. Summary of Choice Influencing Factors The Court finds that an evaluation of the influencing factors establishes that Cline's claim, Morey's claim, and Mentor's activities have sufficiently significant contacts with the forum state to support the application of Minnesota law. Accordingly, Mentor's summary judgment motion against Cline (ECF No. 58 in 4:10–cv–5060) is denied, and Cline's claims are not subject to dismissal. Similarly, Mentor's summary judgment motion against Morey (ECF No. 51 in 4:11–cv–5065) is denied. Case 4:13-cv-00323-CDL Document 40-7 Filed 08/29/16 Page 6 of 7 In re Mentor Corp. ObTape Transobturator Sling Products..., Not Reported in... 2013 WL 286276 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 V. Morey's Motion to Amend *8 As the Court previously noted, Morey seeks to add a claim for punitive damages. Mentor's only argument in opposition to Morey's proposed amendment is that Morey's claim is time-barred under Washington law. 1 The Court has concluded that Minnesota law, not Washington law, applies. Mentor did not argue that Morey's proposed punitive damages claim is time-barred under Minnesota law, and Mentor did not advance any other argument in opposition to Morey's proposed amendment. Therefore, the Court grants Morey's Motion to Amend (ECF No. 36 in 4:11–cv–5065). Morey shall file her amendment to her complaint within 7 days of today's order. CONCLUSION As discussed above, the Court finds that Minnesota law should be applied to the claims of Cline and Morey. The Court therefore denies Mentor's Motion for Summary Judgment against Cline (ECF No. 58 in 4:10–cv–5060) and Mentor's Motion for Summary Judgment against Morey (ECF No. 51 in 4:11–cv–5065). The Court grants Morey's Motion to Amend (ECF No. 36 in 4:11–cv–5065). IT IS SO ORDERED. All Citations Not Reported in F.Supp.2d, 2013 WL 286276 Footnotes 1 Under Minnesota's borrowing statute, Washington's three-year statute of limitations applies to claims based on Washington substantive law. Minn.Stat. § 541.31 subdiv. 1(a)(1); Wash. Rev.Code. § 7.72.060(3). But here, the Court has concluded that Minnesota substantive law applies to Morey's claims, so Minnesota's six-year statute of limitations applies. Minn.Stat. § 541.31 subdiv. 1(b); id. § 541.05 subdiv. 1(5). Morey's claims are timely under Minnesota law. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 4:13-cv-00323-CDL Document 40-7 Filed 08/29/16 Page 7 of 7 EXHIBIT E Case 4:13-cv-00323-CDL Document 40-8 Filed 08/29/16 Page 1 of 7 Edwards v. Wyeth, Inc., Not Reported in F.Supp.2d (2008) 2008 WL 1908907 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2008 WL 1908907 Only the Westlaw citation is currently available. United States District Court, D. Minnesota. Clifford E. EDWARDS and Marilyn Edwards, individually and as husband and wife, Plaintiffs, v. WYETH, INC. (d/b/a Wyeth), formerly known as American Home Products Corporation, individually and as successor in interest to A .H. Robins, Inc.; Alpharma, Inc., d/b/a Alpharma Pharmaceuticals; Purepac Pharmaceutical Company; Actavis Elizabeth LLC; and the following fictitious party defendants (whether singular or plural, individual or corporate): No. 1, that entity which originally obtained permission from the U.S. Food and Drug Administration to market the drug branded Reglan; No. 2, that entity which obtained permission from the FDA to market the Reglan, metoclopramide and/or metoclopramide HCI ingested by Clifford Edwards; No. 3, that entity which originally manufactured and sold any Reglan which was ultimately ingested by Clifford Edwards: No. 4, that entity which originally manufactured And sold any Reglan, metoclopramide and/or Metoclopramide HCI which was ultimately ingested by Clifford Edwards; No. 5, that entity which marketed Reglan, metoclopramide and/or metoclopramide HCI., Defendants. Civil No. 07–3921 (DWF/SRN). | April 25, 2008. Attorneys and Law Firms Daniel J. McGlynn, Esq., and Patty F. Trantham, Esq., McGlynn, Glisson & Koch, APLC; and Lucia J.W. McLaren, Esq. and Michael K. Johnson, Esq., Goldenberg & Johnson, PLLC, for Plaintiffs. Bridget M. Ahmann, Esq., and Erin M. Verneris, Esq., Faegre & Benson LLP; and Jeffrey R. Pilkington, Esq., and Tom Wagner, Esq., Davis, Graham & Stubbs, LLP, for Defendant Wyeth, Inc. Bradley J. Linderman, Esq., and Michael D. Hutchens, Esq., Meagher & Geer, PLLP; and Richard A. Dean, Esq., Tucker Ellis & West, for Defendants Alpharma, Inc., Purepac Pharmaceutical Co., and Actavis Elizabeth LLC. MEMORANDUM OPINION AND ORDER DONOVAN W. FRANK, District Judge. INTRODUCTION *1 This matter is before the Court on a Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) or, in the Alternative to Transfer Venue Pursuant to 28 U.S.C. § 1404(a), brought by Defendants Wyeth, Inc. (“Wyeth”), and Schwarz Pharma, Inc. (“Schwarz”); a Joint Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(c), brought by Defendants Actavis Elizabeth LLC (“Actavis”), Alpharma, Inc. (“Alpharma”), and Purepac Pharmaceutical Co. (“Purepac”); a Motion to Dismiss, or in the Alternative, Notice of Joinder in Wyeth and Schwarz Pharma, Inc.'s Motion to Transfer Venue Pursuant to 28 U .S.C. § 1404(a), brought by PLIVA, Inc. (“PLIVA”); and a Motion for Leave to File an Amended Complaint, brought by Plaintiffs Clifford E. and Marilyn Edwards. 1 BACKGROUND Plaintiffs claim that Mr. Edwards developed Tardive Dyskinesia, a neurological disorder, as a result of his ingestion of metoclopramide.Metoclopramide, which is available in brand (Reglan®) or generic form, is used to treat certain gastrointestinal disorders. Plaintiffs allege in their Complaint that beginning in May 2000, and continuing until approximately 2001, Mr. Edwards was treated for gastroesophageal reflux disease (Compl.¶ 24); that Mr. Edwards was prescribed and ingested Reglan®/metoclopramide(Id. ¶¶ 27, 28); that Defendants warned that exposure to Reglan®/ metoclopramide can lead to Tardive Dyskinesia(Id. ¶ 431); and that Reglan®/metoclopramide caused Mr. Edwards' injuries (Id. ¶ 29). Plaintiffs' causes of action include strict products liability, breach of express warranty (against Wyeth), negligence, misrepresentation by omission, negligence (against Wyeth), Case 4:13-cv-00323-CDL Document 40-8 Filed 08/29/16 Page 2 of 7 Edwards v. Wyeth, Inc., Not Reported in F.Supp.2d (2008) 2008 WL 1908907 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 negligent misrepresentation, negligent misrepresentation (against Wyeth), fraud by concealment, violation of the Minnesota Consumer Protection Act (“MCPA”), fraud by concealment (against Wyeth), breach of implied warranties, strict joint and several liability, constructive fraud, intentional infliction of emotional distress, negligent infliction of emotional distress, and loss of consortium. Defendants Wyeth, Actavis, Alpharma, and Purepac move in two separate motions to dismiss Plaintiffs' action for failing to file the action within the applicable statutes of limitation. Wyeth also brings an alternative motion to transfer. Finally, Plaintiffs bring a Motion for Leave to File an Amended Complaint. DISCUSSION I. Motions to Dismiss A. Standard of Review In deciding a motion to dismiss, a court assumes all facts in the complaint to be true and construes all reasonable inferences from those facts in the light most favorable to the complainant. Morton v. Becker, 793 F.2d 185, 187 (8th Cir.1986). In doing so, however, a court need not accept as true wholly conclusory allegations, Hanten v. Sch. Dist. of Riverview Gardens, 183 F.3d 799, 805 (8th Cir.1999), or legal conclusions drawn by the pleader from the facts alleged. Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir.1990). A court may consider the complaint, matters of public record, orders, materials embraced by the complaint, and exhibits attached to the complaint in deciding a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir.1999). *2 To survive a motion to dismiss, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.”Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). Although a complaint need not contain “detailed factual allegations,” it must contain facts with enough specificity “to raise a right to relief above the speculative level.”Id. at 1964–65.This standard “calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the claim].”Id. at 1965.The Court evaluates a motion brought under Rule 12(c) under the same standard as a motion brought under Rule 12(b)(6). Fed.R.Civ.P. 12(c) and (h)(2). A motion to dismiss may be granted when a claim is barred under the statute of limitations. Fed.R.Civ.P. 12; Varner v. Peterson Farms, 371 F.3d 1011, 1016 (8th Cir.2004). The parties ask the Court to assume, for the purposes of this motion, that Minnesota's statutes of limitation apply to Plaintiffs' claims. 2 Under Minnesota law, the following limitations periods apply to the Plaintiffs' causes of action: two years for intentional infliction of emotional distress, Minn.Stat. Ann. § 541.07(1); four years for breach of warranty and strict liability, Minn.Stat. Ann. § 336.2– 725; § 541.05, subd. 2; and six years for negligence, misrepresentation, fraud, and statutory claims, Minn.Stat. Ann. § 541.05, subd. 1. Also under Minnesota law, a civil action is commenced against a defendant for statute of limitations purposes by service of the summons upon the defendant, by acknowledgement of service if served by mail, or by delivery of the summons to the sheriff. Minn. R. Civ. P. 3.01; see also MW Ag, Inc. v. New Hampshire Ins. Co., 107 F.3d 644, 646 (8th Cir.1997). 3 B. Wyeth's Motion to Dismiss Wyeth seeks dismissal of Plaintiffs' complaint on the grounds that the claims asserted against it are barred by the applicable statutes of limitation. Plaintiffs served Wyeth on October 19, 2007. Therefore, October 19, 2007, is the date on which this action was commenced against Wyeth. 1. Warranty claims Plaintiffs' warranty claims are subject to a four-year statute of limitations. Minn.Stat. § 336.2–725. In addition, Plaintiffs' warranty claims accrued when the breach of warranty occurred, which is “when tender of delivery is made.”Id. Wyeth asserts that this claim is time-barred. Plaintiffs do not offer any arguments disputing this assertion. Plaintiffs have alleged that Mr. Edwards' injury was caused by the ingestion of Reglan® and/or metoclopramide. Plaintiffs further allege that Mr. Edwards' injury was diagnosed on or about September 17, 2001. Therefore, tender of delivery of the Reglan® and/or metoclopramide must have occurred sometime prior to September 17, 2001. Accordingly, more than four years have passed since the statute began to run, and Plaintiffs' warranty claims are time-barred. 2. Minnesota Consumer Protection Act *3 Plaintiffs' MCPA claim is subject to a six-year statute of limitations.Minn.Stat. Ann. § 541.05, subd. 1(2). Wyeth Case 4:13-cv-00323-CDL Document 40-8 Filed 08/29/16 Page 3 of 7 Edwards v. Wyeth, Inc., Not Reported in F.Supp.2d (2008) 2008 WL 1908907 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 asserts that this claim is time-barred. Plaintiffs do not offer any arguments in opposition. Plaintiffs' MCPA claims began to accrue on the date of sale when each alleged statutory violation occurred. Klehr v. A.O. Smith Corp., 875 F.Supp. 1342, 1352–53 (D.Minn.1995). Again, Plaintiffs have alleged that Mr. Edwards' injury was caused by the ingestion of Reglan® and/or metoclopramide and that his injury occurred on or about September 17, 2001. Therefore, the Reglan® and/or metoclopramide that allegedly caused Mr. Edwards' injury must have been purchased prior to September 17, 2001. Accordingly, more than six years have passed since the statute began to run, and Plaintiffs' MCPA claim is time-barred. 3. Remaining claims The statutes of limitation on Plaintiffs' remaining claims began to run on the date that Mr. Edwards was aware of some damage resulting from Defendants' alleged conduct. See Offerdahl v. Univ. of Minn. Hosps. and Clinics, 426 N.W.2d 425, 429 (Minn.1988) (citing Dalton v. Dow Chem. Co., 158 N.W.2d 580, 583–84 (Minn.1968)); see also Herrmann v. McMenomy & Severson, 590 N.W.2d 641, 643 & n. 17 (Minn.1999). “Some damage” exists when a cognizable physical manifestation of the disease is present and there is evidence of a causal connection between the disease and the defendant's product, act, or omission.Klepmka v. G.D. Searle & Co., 963 F.2d 168, 170 (8th Cir.1992). The parties dispute when the statutes of limitation on Plaintiffs' remaining causes of action began to run. Wyeth asserts that Plaintiffs' causes of action accrued on or before September 17, 2001, the date on which Plaintiff has alleged “[Mr. Edwards] was diagnosed with Tardive Dyskinesia.”(Compl.¶ 25.) Plaintiffs, on the other hand, argue that their causes of action did not actually accrue until January 17, 2002, the date they claim Mr. Edwards was definitively diagnosed with Tardive Dyskinesia. Plaintiffs have since moved for leave to amend their Complaint to allege that the actual date of Mr. Edwards' diagnosis was January 17, 2002. The Court denies Plaintiffs' motion for leave to amend, as discussed below, and therefore looks only to the allegations of the original Complaint in considering the motions to dismiss. 4 Based on the Plaintiffs' own allegations in Paragraph 25 of the Complaint, wherein Plaintiffs specifically allege that Mr. Edwards was diagnosed with Tardive Dyskinesia on September 17, 2001, it is appropriate to conclude that Mr. Edwards suffered some damage on or before September 17, 2001. In addition, the allegations in Plaintiffs' Complaint indicate that Plaintiffs were aware that Mr. Edwards' ingestion of Reglan® and/or metoclopramide likely caused his claimed injury. In particular, Plaintiffs allege that Defendants warned that Reglan® and/or metoclopramide could cause Tardive Dyskinesia. Thus, Plaintiffs allege both knowledge of Mr. Edwards' injury and of a causal connection between the injury and his ingestion of Reglan® and/or metoclopramide on or about September 17, 2001. Accordingly, Plaintiffs' remaining claims accrued, and the statutes of limitation began to run, on September 17, 2001. a. Intentional Infliction of Emotional Distress (“IIED”) *4 Plaintiffs' IIED claim is subject to a two-year statute of limitations.Minn.Stat. Ann. § 541.07(1). As explained above, Plaintiffs' IIED claim accrued on September 17, 2001. Plaintiffs did not commence this action against Wyeth until October 19, 2007, more than two years later. Accordingly, Plaintiffs' IIED claim is barred by the statute of limitations. Even if the Court accepted Plaintiffs' alleged date-of-injury, January 17, 2002, more than two years passed before Plaintiffs commenced this action and their claims would still be time-barred. b. Strict Liability Plaintiffs' strict liability claim is subject to a four-year statute of limitations. Minn.Stat. Ann. § 541.05, subd. 2. As explained above, Plaintiffs' strict liability claim accrued on September 17, 2001. Plaintiffs did not commence this action against Wyeth until October 19, 2007, more than four years later. Accordingly, Plaintiffs' strict liability claim is time-barred. Even accepting Plaintiffs' alleged date-of- injury, January 17, 2002, more than four years passed before Plaintiffs commenced this action and their claims would still be time-barred. c. Negligence, Misrepresentation, and Fraud claims Plaintiffs' negligence, misrepresentation, and fraud claims are subject to a six-year statute of limitations. Minn.Stat. Ann. § 541.05, subd. 1. After Plaintiffs' claims accrued on September 17, 2001, more than six years passed before Plaintiffs served Wyeth on October 19, 2007. Accordingly, these claims are time-barred. Case 4:13-cv-00323-CDL Document 40-8 Filed 08/29/16 Page 4 of 7 Edwards v. Wyeth, Inc., Not Reported in F.Supp.2d (2008) 2008 WL 1908907 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 4. Fraudulent Concealment Plaintiffs argue that the doctrine of equitable estoppel prevents Defendants from relying on the statute of limitations defense because of Plaintiffs' allegedly fraudulent conduct. Specifically, Plaintiffs assert that Defendants concealed material facts about the risk of contracting Tardive Dyskinesia, that Plaintiffs and the treating physicians were unaware of the risks, and that Plaintiffs relied on the Defendants to their detriment. Plaintiffs actually seek to toll the statute of limitations pursuant to the “fraudulent concealment” exception. Fraudulent concealment tolls the statute of limitations until the plaintiff discovers or has a reasonable opportunity to discover the concealed facts.Hydra–Mac, Inc. v. Onan Corp., 450 N.W.2d 913, 918 (Minn.1990). The very existence of the facts which establish the cause of action must be fraudulently concealed in order to toll the statute of limitations. Id.“Merely establishing that a defendant had intentionally concealed the alleged defects is insufficient; the claimant must establish that it was actually unaware that the defect existed before a finding of fraudulent concealment can be sustained.”Id. The allegations contained in Plaintiffs' Complaint fail to support the tolling of the statute of limitations due to fraudulent concealment. First, Plaintiffs do not allege that Defendants affirmatively tried to conceal the presence of a cause of action from Plaintiffs. In addition, Plaintiffs allege that Defendants disclosed Tardive Dyskinesia as a possible risk of taking Reglan® and/or metoclopramide. (Compl.¶¶ 431.) Therefore, Plaintiffs cannot claim that Defendants concealed the basis for a cause of action or that Plaintiffs were unaware of any basis for a cause of action. C. Actavis Elizabeth, Alpharma, and Purepac's Motion to Dismiss *5 Plaintiffs assert various claims against Actavis Elizabeth, Alpharma, and Purepac. These claims include strict products liability, negligence, misrepresentation by omission, negligent misrepresentation, fraud by concealment, violation of the MCPA, breach of implied warranties, strict and joint liability, constructive fraud, IIED, negligent infliction of emotional distress, and loss of consortium. Alpharma and Actavis Elizabeth were served on October 19, 2007 and October 25, 2007, respectively. (Aff. of John R. Duff ¶¶ 3, 4.) Purepac has not been served. (Id. ¶ 6.) As explained above, the longest statute of limitations for any of Plaintiffs' claims against Actavis, Alpharma, and Purepac is six years. Plaintiffs' various causes of action accrued no later than September 17, 2001. Plaintiffs, however, did not commence this action against Actavis, Alpharma, or Purepac until more than six years had passed. In addition, as explained above, the allegations contained in Plaintiffs' Complaint fail to support the tolling of the statute of limitations due to fraudulent concealment. Accordingly, all claims asserted against these defendants are time-barred. II. Plaintiffs' Motion For Leave to File an Amended Complaint Plaintiffs filed their original Complaint on September 7, 2007. In that Complaint, Plaintiffs allege that Mr. Edwards was diagnosed with Tardive Dyskinesia on or about September 17, 2001. As discussed above, Plaintiffs' claims are time- barred using September 17, 2001, as the day that Mr. Edwards' causes of action accrued. Shortly before the hearing on Defendants' motions to dismiss, Plaintiffs filed a motion for leave to amend their Complaint. The Court heard oral arguments on the motions to dismiss and received further briefing on Plaintiffs' motion for leave to amend. “[A] party may amend its pleading ... with the opposing party's written consent or the court's leave.”Fed.R.Civ.P. 15(a)(2). Leave to amend should be freely given “when justice so requires.” Id. However, leave should not be given when the proposed amendments are futile. See DeRoche v. All Am. Bottling Corp., 38 F.Supp.2d 1102, 1005 (D.Minn.1998). The Court finds that justice does not require the granting of Plaintiffs' motion for leave to amend. Indeed, it would be contrary to the interests of justice to allow an amendment, as Plaintiffs essentially ask the Court to engage in a fiction. Plaintiffs represent that they made a “clerical error” in pleading September 21, 2007, as the date of Mr. Edwards' diagnosis. Plaintiffs purport to correct the error in their proposed Amended Complaint by omitting any reference to the September 17, 2001, date and instead asserting that the alleged correct date of Mr. Edwards' diagnosis as January 17, 2002. Even accepting Plaintiffs' newly alleged date of diagnosis, the Court notes that this date is not necessarily the same date on which Mr. Edwards sustained “some damage” for the purpose commencing the statute of limitations. Instead, “some damage” existed when Mr. Edwards' experienced a cognizable physical manifestation of his disease and there Case 4:13-cv-00323-CDL Document 40-8 Filed 08/29/16 Page 5 of 7 Edwards v. Wyeth, Inc., Not Reported in F.Supp.2d (2008) 2008 WL 1908907 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 was evidence of a causal connection between his disease and Reglan® and/or metoclopramide. Klepmka, 963 F.2d at 170.Plaintiffs' original Complaint plainly alleges that Mr. Edwards was diagnosed with Tardive Dyskinesia on or about September 17, 2001. Even if not the date of diagnosis, it is evident that Mr. Edwards was suffering symptoms at that time and knew the likely cause of his symptoms was his ingestion of Reglan® and/or metoclopramide. Although Plaintiffs now claim that they made a “clerical error” in alleging the September 2001 date, they do not claim that the facts underlying their original assertion of the September 2001 date to, likewise, be erroneous. In fact, Plaintiffs have put before the Court extrinsic evidence that substantiates the significance of the September 17, 2001, date. The evidence submitted by Plaintiffs demonstrates that Mr. Edwards saw a neurologist on September 17, 2001, and that the neurologist informed Mr. Edwards that his neurological symptoms were likely caused by Reglan®. Indeed, Plaintiffs readily acknowledge these facts. 5 The Court will not allow Plaintiffs to amend their original Complaint to assert directly contradictory factual allegations when it is evident that they are omitting key facts that, if included, would render the amendment futile. *6 In addition, the allegations contained in Plaintiffs' proposed Amended Complaint fail to support the tolling of the statute of limitations due to fraudulent concealment. In particular, the allegations do not demonstrate that Defendants affirmatively attempted to conceal from Plaintiffs the presence of a cause of action. Nor can Plaintiffs demonstrate that they were unaware of any basis for a cause of action against Defendants. Accordingly, the Court denies Plaintiffs' motion for leave to amend. CONCLUSION Accordingly, based on the files, records, and proceedings herein, and for the reasons set forth above, IT IS ORDERED that: 1. Wyeth's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b) (6) or, in the Alternative, to Transfer Venue Pursuant to 28 U.S.C. § 1404(a) (Doc. No. 26) is GRANTED. 2. Actavis, Alpharma, and Purepac's Joint Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(c) (Doc. No. 45) is GRANTED. 3. PLIVA's Motion to Dismiss, or in the Alternative, Notice of Joinder in Wyeth and Schwarz Pharma, Inc.'s Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a) (Doc. No. 51), is DENIED AS MOOT; and 4. Plaintiffs' Motion for Leave to File and Amended Complaint (Doc. No. 77) is DENIED. 5. Plaintiffs' Complaint (Doc. No. 1) is DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY. All Citations Not Reported in F.Supp.2d, 2008 WL 1908907 Footnotes 1 Subsequent to the hearing on the motions to dismiss, all claims against Defendants Schwarz, PLIVA, and Teva Pharmaceuticals USA, Inc ., have been dismissed. Therefore, any motion brought by one of these Defendants is now moot. 2 Plaintiffs acknowledge that they filed this case in Minnesota because the statute of limitations had run in Plaintiffs' home forum. 3 Minnesota's commencement rules also apply. See Larsen v. Mayo Med. Ctr., 218 F.3d 863, 867 (8th Cir.2000). 4 For purposes of opposing the present motions to dismiss, Plaintiffs rely on extrinsic exhibits. The Court need not consider those exhibits as they are not “necessarily embraced by the pleadings.” Porous Media Corp., 186 F.3d at 1079.However, even if the Court did, the extrinsic evidence supports the finding that Plaintiffs' causes of action accrued on September 17, 2001. 5 In their memorandum in opposition to Defendants' motions to dismiss, Plaintiffs acknowledge that Mr. Edwards saw a neurologist on September 17, 2001, presenting with a “shuffling gait and masked face,” and that the doctor recommended cessation of Reglan®. (Plfs.' Mem. in Supp. of Her Resp. to Wyeth and Schwarz Pharma's Mot. to Dismiss at 2 (citing Dep. of David Weidman, M.D.).) Case 4:13-cv-00323-CDL Document 40-8 Filed 08/29/16 Page 6 of 7 Edwards v. Wyeth, Inc., Not Reported in F.Supp.2d (2008) 2008 WL 1908907 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 4:13-cv-00323-CDL Document 40-8 Filed 08/29/16 Page 7 of 7 EXHIBIT F Case 4:13-cv-00323-CDL Document 40-9 Filed 08/29/16 Page 1 of 10 In re Mentor Corp. Obtape Transobturator Sling Products Liability..., Slip Copy (2015) 2015 WL 9307267 - 2015 WL 9307267 Only the Westlaw citation is currently available. United States District Court, M.D. 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-93 (Jackson), 4:13-cv-101 (Rupert), 4:13-cv-151 (Charles), 4:13-cv-153 (Klum), 4:13-cv-241 (Leon), 4:13-cv-346 (Urbieta), 4:13-cv-377 (Lovell), 4:13-cv-426 (Suen), 4:13- cv-483 (Uriegas), 4:13-cv-503 (Degroot), 4:14-cv-61 (Hall), 4:14-cv-63 (Chambers) Signed 12/21/2015 ORDER CLAY D. LAND, CHIEF U.S. DISTRICT COURT JUDGE *1 Defendant Mentor Worldwide LLC developed a suburethral sling product called ObTape Transobturator Tape, which was used to treat women with stress urinary incontinence. Plaintiffs Michele Jackson, Andrea Rupert, Wendy Charles, Carrie Klum, Olga Leon, Graciela Urbieta, Sharon Lovell, Arleen Suen, Sylvia Uriegas, Debra Degroot, Libby Hall, and Sherry Lynn Chambers were implanted with ObTape and assert that they suffered injuries caused by ObTape. Each Plaintiff brought a product liability action against Mentor, contending that ObTape had design and/or manufacturing defects that proximately caused her injuries. Plaintiffs also assert that Mentor did not adequately warn their physicians about the risks associated with ObTape. Plaintiffs brought their claims under several theories. Mentor seeks summary judgment on all of their claims. For the reasons set forth below, the Mentor's summary judgment motions 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 movant is entitled to judgment as a matter of law."Fed. R. 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. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 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. Plaintiff Michele Jackson (ECF No. 37 in 4:13-cv-93) Michele Jackson sought treatment for stress urinary incontinence from Dr. Glen Diacon. Dr. Diacon recommended ObTape, and he implanted Jackson with ObTape on March 26, 2004. In October 2004, Jackson visited Dr. Diacon's assistant and complained of pain near the ObTape incision site, as well as suprapubic discomfort and dyspareunia. The assistant felt some exposed graft material. Jackson sought a second opinion from Dr. Daniel Barnes. Dr. Barnes diagnosed Jackson with an erosion of the ObTape. He recommended that Jackson have the exposed portion of the ObTape removed, and he told Jackson that the revision surgery "would most likely take away her pain."Barnes Dep. 16:6-13, ECF No. 37-7 in 4:13-cv-93. Dr. Barnes removed portions of Jackson's ObTape in November 2004. Jackson is an Oklahoma resident whose ObTape-related treatment took place in Oklahoma. On March 27, 2013, Jackson served Mentor with a copy of her Complaint captioned in Hennepin County District Court of the State of Minnesota. Jackson brought claims for strict liability, negligence, breach of express warranty, breach of implied warranty, common law fraud, constructive fraud, and negligent and intentional misrepresentation. II. Plaintiff Andrea Rupert (ECF No. 41 in 4:13-cv-101) *2 Dr. Murphy Townsend diagnosed Andrea Rupert with incontinence, and he implanted Rupert with ObTape on May 3, 2004. After the surgery, Rupert's incontinence improved. In June 2005, Rupert went to the emergency room with extreme pain in her right groin, vaginal discharge and bleeding, and a foul odor. The emergency room doctor attributed Rupert's symptoms to a urinary tract infection. © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 4:13-cv-00323-CDL Document 40-9 Filed 08/29/16 Page 2 of 10 In re Mentor Corp. Obtape Transobturator Sling Products Liability..., Slip Copy (2015) 2015 WL 9307267 ~~~ Rupert went to Dr. Townsend for follow-up on her emergency room visit. According to Rupert, Dr. Townsend told her that she had an infection and that "perhaps [her] body was not adapting well to the" ObTape. Rupert Dep. 47:8-15, ECF No. 43-3 in 4:13-cv-101. Dr. Townsend recommended that Rupert's ObTape be removed. On June 22, 2005, Dr. Townsend removed part of Rupert's ObTape and drained an abscess he discovered during the explant surgery. At some point, Dr. Townsend came to believe that ObTape was defective. Townsend Dep. 19:15-18, ECF No. 43-3 in 4:13-cv-101. He encouraged Rupert to contact Mentor to tell Mentor about her complications with ObTape, and Rupert did so. Id. at 18:18-19:10. In August 2005, Rupert visited Dr. Thomas Fassuliotis with recurrent incontinence. Dr. Fassuliotis noted that Rupert was concerned that half of her ObTape was still in her body and that it may become infected. Def.'s Mot. for Summ. J. Ex. E, History & Physical Examination (Aug. 2, 2005), ECF No. 41-8 in 4:13-cv-101. Dr. Fassuliotis also noted that Rupert stated that "this may be a litigious issue with the manufacturer of the Mentor Ob Tape."/d. I Rupert is a Georgia resident whose ObTape-related treatment took place in Georgia. On April 1, 2013, Rupert served Mentor with a copy of her Complaint captioned in Hennepin County District Court of the State of Minnesota. Rupert brought claims for strict liability, negligence, breach of express warranty, breach of implied warranty, common law fraud, constructive fraud, and negligent and intentional misrepresentation. III. Plaintiff Wendy Charles (ECF No. 34 in 4:13- cv-151) 2 Wendy Charles sought treatment from Dr. Mitesh Parekh for stress urinary incontinence. On February 9, 2004, Dr. Parekh implanted Charles with ObTape. In April 2004 and again in January 2005, Charles reported to Dr. Parekh with groin pain. And in May 2005, Charles sent Dr. Parekh a medical journal article entitled "Groin Pain After a Tension-Free Vaginal Tape or Similar Suburethral Sling: Management Strategies" and expressed concern that ObTape was causing her groin pain. After Charles and Dr. Parekh discussed the pros and cons of removing Charles's ObTape, Charles decided to have the ObTape removed because she believed it was causing her groin pain. Dr. Parekh removed Charles's ObTape on March 27, 2006. At her follow-up visit, Charles reported that she was happy with the revision surgery and that her groin pain symptoms were gone. *3 Charles is a Pennsylvania resident whose ObTape- related treatment took place in Pennsylvania. On May 7, 2013, Charles served Mentor with a copy of her Complaint captioned in Hennepin County District Court of the State of Minnesota. Charles brought claims for strict liability, negligence, breach of express warranty, breach of implied warranty, common law fraud, constructive fraud, and negligent and intentional misrepresentation. IV. Plaintiff Carrie Klum (ECF No. 34 in 4:13-cv-153) Carrie Klum visited Dr. Sakina Khalidi for treatment of stress urinary incontinence. Dr. Khalidi implanted Klum with ObTape on June 3, 2004. In February 2005, Klum visited Dr. Khalidi because she had been experiencing pressure in the lower abdomen and an occasional bleed for about three weeks. Dr. Khalidi examined Klum and saw some exposed ObTape. Dr. Khalidi told Klum that the ObTape was infected and that the bleeding was caused by the ObTape. Dr. Khalidi prescribed an antibiotic and advised that the exposed portion of ObTape may need to be removed. The next week, Dr. Khalidi removed a small segment of Klum's ObTape. In February 2006, Klum returned to Dr. Khalidi complaining of blood in her urine and vaginal bleeding. Klum understood from Dr. Khalidi that her body was rejecting the ObTape and that is why she had an infection. Dr. Khalidi advised Klum that the entire ObTape needed to be removed, but when Dr. Khalidi performed the revision surgery the entire ObTape could not be removed. Klum is a Florida resident whose ObTape-related treatment took place in Florida. On April 29, 2013, Klum served Mentor with a copy of her Complaint captioned in Hennepin County District Court of the State of Minnesota. Klum brought claims for strict liability, negligence, breach of express warranty, breach of implied warranty, common law fraud, constructive fraud, and negligent and intentional misrepresentation. Her husband Anthony brought a loss of consortium claim. V. Plaintiff Olga Leon (ECF No. 40 in 4:13-cv-241) Dr. Bernard Morris implanted Olga Leon with ObTape on August 19, 2004. In January 2005, Leon returned to Dr. Morris with complaints of pain and irritation. Dr. Morris examined Leon, diagnosed an erosion of the ObTape, and told Leon that there was a problem with her ObTape and he would have to perform a revision surgery. Leon Dep. 162:7-15, ECF No. 42-3 in 4:13-cv-241. Dr. Morris removed Leon's eroded ObTape on January 11, 2005. Leon testified that she started C) 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 Case 4:13-cv-00323-CDL Document 40-9 Filed 08/29/16 Page 3 of 10 In re Mentor Corp. Obtape Transobturator Sling Products Liability..., Slip Copy (2015) 2015TNT 9307267 — thinking about bringing a lawsuit regarding ObTape "after the second surgery." Id. at 197:2-199:25. It is not clear from the present record whether Leon meant the revision surgery she had in January 2005 or a later surgery performed by a different doctor in 2006. Leon is a California resident whose ObTape-related treatment took place in California. On June 10, 2013, Leon served Mentor with a copy of her Complaint captioned in Hennepin County District Court of the State of Minnesota. Leon brought claims for strict liability, negligence, breach of express warranty, breach of implied warranty, common law fraud, constructive fraud, and negligent and intentional misrepresentation. VI. Plaintiff Graciela Urbieta (ECF No. 31 in 4:13- cv-346) Graciela Urbieta visited Dr. Charles Feinstein complaining of urinary incontinence, and Dr. Feinstein recommended ObTape. Dr. Feinstein implanted Urbieta with ObTape on March 8, 2005. In January 2006, Urbieta went to the emergency room complaining of a painful rash, leg pain, and vaginal odor. She was admitted to the hospital and treated for necrotizing fasciitis. Later that year, she was treated for abscesses by Dr. Marie Crandall. Dr. Crandall became concerned that Urbieta's ObTape was chronically infected; Dr. Crandall told Urbieta of this concern and referred her to Dr. Stephanie Kielb for further evaluation. Crandall Dep. 54:8-21, ECF No. 31-8 in 4:13-cv-346. Dr. Crandall also told Urbieta that her ObTape might need to be removed. Urbieta Dep. 6:1-2, 59:3-13, ECF No. 31-5 in 4:13-cv-346. Dr. Kielb examined Urbieta, found an erosion of the ObTape, and told Urbieta that the ObTape would have to be removed because it was causing discharge and other problems. Id. at 59:24-60:4; Kielb Dep. 42:13-44:4, ECF No. 31-9 in 4:13-cv-346. After Dr. Kielb performed the excision surgery in December 2006, Urbieta's symptoms improved, and she no longer had pus. Urbieta Dep. 60:6-13. *4 Urbieta is an Illinois resident whose ObTape-related treatment took place in Illinois. On July 11, 2013, Urbieta served Mentor with a copy of her Complaint captioned in Hennepin County District Court of the State of Minnesota. Urbieta brought claims for strict liability, negligence, breach of express warranty, breach of implied warranty, common law fraud, constructive fraud, and negligent and intentional misrepresentation. Her husband Mateo brought a loss of consortium claim. VII. Plaintiff Sharon Lovell (ECF No. 31 in 4:13-cv-377) Sharon Lovell sought treatment for stress urinary incontinence from Dr. Bechara Tabet. Dr. Tabet implanted Lovell with ObTape on December 27, 2004. In May 2006, Lovell was hospitalized with a left thigh abscess and vaginal discharge, and her doctors suspected that the infection was related to Lovell's ObTape. Dr. Tabet examined Lovell, discovered that the ObTape had eroded, and removed the entire sling. After the excision procedure, Dr. Tabet explained to Lovell that the ObTape "had eroded and snapped and embedded in [her] leg and caused the abscess."Lovell Dep. 130:5-14, ECF No. 31-5 in 4:13-cv-377. Lovell is an Ohio resident whose ObTape-related treatment took place in Ohio. On July 16, 2013, Lovell served Mentor with a copy of her Complaint captioned in Hennepin County District Court of the State of Minnesota. Lovell brought claims for strict liability, negligence, breach of express warranty, breach of implied warranty, common law fraud, constructive fraud, and negligent and intentional misrepresentation. VIII. Plaintiff Arleen Suen (ECF No. 32 in 4:13-cv-426) Arleen Suen visited Dr. Laurence Orbuch for treatment of incontinence. Dr. Orbuch diagnosed Suen with stress urinary incontinence and recommended that she undergo an ObTape implant. Dr. Orbuch implanted Suen with ObTape on December 2, 2004. After the surgery, Suen had abnormal vaginal discharge and several follow-up operative procedures and sought treatment from Dr. William McCormack, who referred Suen to Dr. Victor Nitti. Suen visited Dr. Nitti in December 2005, and he told her that the ObTape was infected and that it would be best to remove it. At the time, Dr. Nitti understood that it was "well-established that ObTapes had a higher rate of infection than other tapes."Nitti Dep. 45:17-46:10, ECF No. 32-6 in 4:13-cv-426. Dr. Nitti removed Suen's ObTape in December 2005. When Dr. McCormack followed up with Suen in May of 2006, Suen reported that her "ongoing problems with bleeding, yeast and vaginal infections and numbness in [her] left leg [had] all disappeared."Suen Dep. 103:5-8, ECF No. 32-4 in in 4:13- cv-426. Suen also reported that Dr. Nitti had told her that "the mesh used to act as a sling has had a history of creating infections therefore he removed all traces of the mesh."/d. at 103:8-11. Suen is a New York resident whose ObTape-related treatment took place in New York. On August 8, 2013, Suen served © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 4:13-cv-00323-CDL Document 40-9 Filed 08/29/16 Page 4 of 10 In re Mentor Corp. Obtape Transobturator Sling Products Liability..., Slip Copy (2015) 2015 WI :0307267 - - Mentor with a copy of her Complaint captioned in Hennepin County District Court of the State of Minnesota. Suen brought claims for strict liability, negligence, breach of express warranty, breach of implied warranty, common law fraud, constructive fraud, and negligent and intentional misrepresentation. IX. Plaintiff Sylvia Uriegas (ECF No. 29 in 4:13-cv-483) Sylvia Uriegas visited Dr. Leopoldo Tecuanhuey complaining of incontinence and other symptoms. Dr. Tecuanhuey implanted Uriegas with ObTape on October 25, 2004. After her ObTape implant, Uriegas experienced vaginal infections, bleeding, malodorous discharge, incontinence, painful urination, urinary tract infections, and pain during intercourse. In October and November of 2006, Dr. Tecuanhuey removed portions of Uriegas's ObTape. And in December of 2006, Dr. Tecuanhuey told Uriegas that he had removed her ObTape and that he suspected that the ObTape had caused her problems. Tecuanhuey Dep. 197:4-198:12, ECF No. 29-5 in 4:13-cv-483. *5 Uriegas is a Texas resident whose ObTape-related treatment took place in Texas. On September 27, 2013, Uriegas served Mentor with a copy of her Complaint captioned in Hennepin County District Court of the State of Minnesota. Uriegas brought claims for strict liability, negligence, breach of express warranty, breach of implied warranty, common law fraud, constructive fraud, and negligent and intentional misrepresentation. X. Plaintiff Debra Degroot (ECF No. 30 in 4:13-cv-503) Dr. David Grapey implanted Debra Degroot with ObTape on September 29, 2004. In November 2005, Degroot returned to Dr. Grapey complaining of chronic malodorous vaginal discharge, and she reported that she had seen a portion of her ObTape protruding from her vagina. Dr. Grapey examined Degroot and found an erosion of the ObTape. He removed the eroded portion of ObTape. Degroot returned to Dr. Grapey again in April 2007 complaining of chronic malodorous vaginal discharge. Dr. Grapey became concerned that Degroot's ObTape was chronically infected, and he referred her to Dr. Scott MacDiarmid for further treatment. Dr. MacDiarmid told Degroot that at least some of her remaining ObTape was infected, and he recommended surgery to remove more of her ObTape. Dr. Grapey and Dr. MacDiarmid performed an excision surgery in May of 2007 to remove additional ObTape. When she filed her Complaint, Degroot was a North Carolina resident, and all of her ObTape-related treatment took place in North Carolina. On October 11, 2013, Degroot served Mentor with a copy of her Complaint captioned in Hennepin County District Court of the State of Minnesota. Degroot brought claims for strict liability, negligence, breach of express warranty, breach of implied warranty, common law fraud, constructive fraud, and negligent and intentional misrepresentation. XI. Plaintiff Libby Hall (ECF No. 25 in 4:14-cv-61) Libby Hall sought treatment for incontinence from Dr. Stephen Farmer. Dr. Farmer diagnosed Hall with stress urinary incontinence and recommended that Hall undergo an ObTape implant procedure. Dr. Farmer implanted Hall with ObTape on January 10, 2005. Hall returned to Dr. Farmer in July 2005 with complaints of continued incontinence and dyspareunia. Dr. Farmer examined Hall and told her that the ObTape, which was just under the vaginal mucosa, was likely the source of her pain. Dr. Farmer also told Hall that removing the ObTape should improve her symptoms, and he removed Hall's ObTape on July 11, 2005. Hall is a Mississippi resident whose ObTape-related treatment took place in Mississippi. On January 23, 2014, Hall served Mentor with a copy of her Complaint captioned in Hennepin County District Court of the State of Minnesota. Hall brought claims for strict liability, negligence, breach of express warranty, breach of implied warranty, common law fraud, constructive fraud, and negligent and intentional misrepresentation. XII. Plaintiff Sherry Lynn Chambers (ECF No. 26 in 4:14-cv-63) Dr. Luis Sanz diagnosed Sherry Lynn Chambers with stress urinary incontinence and recommended that she undergo a transobturator tape procedure. Dr. Sanz implanted Chambers with ObTape on April 1, 2004. In September 2004, Chambers complained to Dr. Sanz of some vaginal bleeding, and Dr. Sanz recommended a revision surgery to try and stop the bleeding. Chambers Dep. 91:1-92:10, ECF No. 26-4 in 4:14- cv-63. After the September 2004 revision surgery, Chambers continued to experience problems with bleeding, and she had two additional revision surgeries during June and October of 2005. At some point after the October 2005 surgery, the sling scratched Chambers's husband during intercourse. 0 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 Case 4:13-cv-00323-CDL Document 40-9 Filed 08/29/16 Page 5 of 10 In re Mentor Corp. Obtape Transobturator Sling Products Liability..., Slip Copy (2015) 20151A/C0307267 - *6 In 2006, Chambers was still experiencing bleeding, so she consulted with Dr. Briana Walton in August or September of 2006. Dr. Walton observed an erosion of the ObTape, and she showed the erosion to Chambers's husband. Dr. Walton told the Chamberses, "This is what scratched you. This is the erosion of the sling. This is what's making you bleed."/d. at 138:9-15. After that, Chambers was referred to Dr. George Webster, who recommended a complete removal of the ObTape. Chambers is a Maryland resident whose ObTape-related treatment took place in Washington, D.C., Virginia, and North Carolina. On February 7, 2014, Chambers served Mentor with a copy of her Complaint captioned in Hennepin County District Court of the State of Minnesota. Chambers brought claims for strict liability, negligence, breach of express warranty, breach of implied warranty, common law fraud, constructive fraud, and negligent and intentional misrepresentation. DISCUSSION Each Plaintiff filed her action in Minnesota state court, and Mentor removed each Plaintiffs action to the United States District Court for the District of Minnesota. The cases were later transferred to this Court as part of a multidistrict litigation proceeding regarding ObTape. The parties agree for purposes of summary judgment that Minnesota law applies to Plaintiffs' claims. See In re Mentor Corp. ObTape Transobturator Sling Prods. Liab. Litig., No. 4:08-md-2004, 2013 WL 286276, at *7 (concluding that Minnesota law applied to claims of non-Minnesota ObTape plaintiffs who brought their actions in Minnesota). I. Strict Liability and Negligence Claims Mentor contends that Plaintiff strict liability and negligence claims are time-barred under Minnesota law. 3 The statute of limitations for a strict liability claim is four years. Minn. Stat. § 541.05 subd. 2 ("[A]ny action based on the strict liability of the defendant and arising from the manufacture, sale, use or consumption of a product shall be commenced within four years."). The statute of limitations for a negligence claim is six years. Minn. Stat. § 541.05 subd. 1(5) (establishing six- year limitation period for personal injury claims not arising in contract or strict liability). Under Minnesota law, "a claim involving personal injuries allegedly caused by a defective product accrues when two elements are present: (1) a cognizable physical manifestation of the disease or injury, and (2) evidence of a causal connection between the injury or disease and the defendant's product, act, or omission.' "Klempka v. G.D. Searle & Co., 963 F.2d 168, 170 (8th Cir. 1992) (quoting Hildebrandt v. Allied Corp., 839 F.2d 396, 398 (8th Cir. 1987)) (applying Minnesota law)."A plaintiff who is aware of both her injury and the likely cause of her injury is not permitted to circumvent the statute of limitations by waiting for a more serious injury to develop from the same cause."/d. For example, in Klempka, the plaintiff suffered injuries and was diagnosed with chronic pelvic inflammatory disease, which her doctor said was caused by the plaintiffs intrauterine device. Id at 169. Several years later, the plaintiff was told that she was infertile and that the intrauterine device caused her infertility. Id Applying Minnesota law, the Eighth Circuit concluded that the plaintiffs cause of action accrued when she first learned that she had an injury (chronic pelvic inflammatory disease) that was caused by the intrauterine device. Id at 170. *7 Here, each Plaintiff contends that she did not learn of a connection between ObTape and her injuries until 2011 or later — either based on a television commercial regarding mesh complications or a consultation with a new doctor. But each Plaintiff knew that she suffered some injuries caused by ObTape well before then. Michele Jackson. In October 2004, Jackson visited her doctor because she was experiencing pain, and her doctor found an erosion of the ObTape. Her doctor recommended removal of the exposed portion of the ObTape, and he told Jackson that the revision surgery "would most likely take away her pain."Barnes Dep. 16:6-13. Therefore, Jackson knew by October 2004 that there was a likely connection between ObTape and some of her injuries. She did not file her complaint until more than eight years later, in March 2013. Andrea Rupert. After Rupert reported to the emergency room complaining of extreme pain and vaginal bleeding in June 2005, Rupert was diagnosed with an infection and her doctor recommended that her ObTape be removed. When Rupert's doctor removed the ObTape, he discovered an abscess. Rupert's doctor encouraged Rupert to contact Mentor about her problems with ObTape, which she did. And in August 2005, Rupert visited another doctor, who noted that Rupert was concerned that half of her ObTape was still in her body t:`•ti1t4C' © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 Case 4:13-cv-00323-CDL Document 40-9 Filed 08/29/16 Page 6 of 10 In re Mentor Corp. Obtape Transobturator Sling Products Liability..., Slip Copy (2015) 2015 WL 9307267 and that it may become infected. Thus, by August 2005, Rupert connected her injuries to ObTape. She did not file her complaint until nearly eight years later, on April 1, 2013. Wendy Charles. Charles began experiencing severe groin pain several months after her ObTape implant. Based on her independent research, Charles became convinced by May 2005 that there was a connection between her pain and the ObTape. Charles persuaded her doctor to remove her ObTape in March 2006; after the ObTape removal, Charles did not experience more groin pain symptoms. Therefore, Charles was aware of a connection between ObTape and her injuries by March 2006 at the latest. She did not file her complaint until more than seven years later, on May 7, 2013. Carrie Klum. Klum visited her doctor complaining of pressure in the lower abdomen and bleeding. She was diagnosed with an infection and erosion of her ObTape in 2005. At the time, Klum's doctor told her that her pain and bleeding were caused by the ObTape. And in February 2006, when Klum experienced similar symptoms, her doctor told her that the entire ObTape needed to be removed. Thus, by February 2006 at the latest, Klum knew that her injuries were connected to ObTape. She did not file her complaint until more than seven years later, on April 29, 2013. Olga Leon.Leon was diagnosed with an erosion of her ObTape in January 2005 after she complained to her doctor of pain and irritation. The doctor told Leon that there was a problem with her ObTape and he would have to perform a revision surgery. Therefore, Leon knew by January 2005 that some of her injuries were connected to ObTape. Furthermore, in 2005 or 2006, Leon started thinking about bringing a lawsuit regarding ObTape. But Leon did not bring her lawsuit until June 10, 2013. Graciela Urbieta.After her ObTape implant, Urbieta experienced a variety of problems; her doctor became concerned that Urbieta's ObTape was chronically infected, and she referred Urbieta to a specialist. The specialist diagnosed Urbieta with an erosion of ObTape in late 2006 and told Urbieta that the ObTape would have to be removed because it was causing discharge and other problems. After Urbieta's excision surgery in December 2006, Urbieta's symptoms improved. Therefore, Urbieta knew by December 2006 that there was likely a connection between ObTape and at least some of her injuries. She did not file her complaint until more than six years later, on July 11, 2013. *8 Sharon Lovell.In May 2006, Lovell was hospitalized with a left thigh abscess and vaginal discharge, and her doctors suspected that the infection was related to Lovell's ObTape. After an examination, Lovell's doctor confirmed that the ObTape had eroded, and he removed the entire sling. At the time, Lovell's doctor explained to her that the ObTape had eroded and caused the abscess. Therefore, Lovell knew by May 2006 that there was a connection between her ObTape and her injuries. She did not file her complaint until more than seven years later, on July 16, 2013. Arleen Suen.Suen experienced abnormal vaginal discharge and had to have several follow-up operative procedures after her ObTape implant. When she was referred to another doctor for treatment, that doctor told Suen that the ObTape was infected and that it would be best to remove it. Suen's doctor told her that ObTape had a history of creating infections. After her ObTape was explanted in December 2005, Suen's adverse symptoms disappeared. Thus, Suen knew by December 2005 that there was a connection between ObTape and her injuries. She did not file her complaint until more than seven years later, on August 8, 2013. Sylvia Uriegas.Uriegas had multiple adverse symptoms after her ObTape implant and sought additional treatment from her doctor. The doctor removed portions of Uriegas's ObTape and told her in December of 2006 that he suspected that the ObTape had caused her problems. Therefore, Uriegas knew by December 2006 that there was a possible connection between ObTape and her adverse symptoms. She did not file her complaint until nearly seven years later, on September 27, 2013. Debra Degroot.After her ObTape implant, Degroot experienced chronic malodorous vaginal discharge and saw a portion of her ObTape protruding from her vagina. In November 2005, Degroot's doctor diagnosed Degroot with an erosion of the ObTape and removed the eroded portion. Degroot continued to experience malodorous discharge. In April 2007, Degroot's doctor told her that her remaining ObTape was infected and needed to be removed, so Degroot had another excision procedure in May 2007. Therefore, Degroot knew by April 2007 at the latest that there was a connection between ObTape and at least some of her injuries. She did not file her complaint until more than six years later, on October 11, 2013. Libby Hall.Hall had problems with dyspareunia after her ObTape implant. In July 2005, Hall's doctor told her that the © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 4:13-cv-00323-CDL Document 40-9 Filed 08/29/16 Page 7 of 10 In re Mentor Corp. Obtape Transobturator Sling Products Liability..., Slip Copy (2015) 2015 WL 9307267 ObTape was likely the source of her pain. The doctor also told Hall that her symptoms should improve if the ObTape was removed. Therefore, Hall knew in July 2005 that there was a likely connection between ObTape and some of her injuries. She did not file her complaint until more than eight years later, on January 23, 2014. Sherry Lynn Chambers.After her ObTape implant, Chambers experienced vaginal bleeding and had at least three revision surgeries by October 2005. In 2006, Chambers was still experiencing vaginal bleeding, so she visited a different doctor, who found an erosion of the ObTape and told Chambers that the erosion was causing her bleeding and had scratched Chambers's husband during intercourse. Therefore, Chambers knew by 2006 at the latest that her symptoms were connected to ObTape. She did not file her complaint until more than seven years later, on February 7, 2014. In summary, each Plaintiff connected at least some of her injuries to ObTape more than six years before she filed suit. Accordingly, their strict liability and negligence claims are time-barred under Minnesota law. Plaintiffs contend that it is not enough that they made a connection between ObTape and some of their injuries. Rather, they appear to argue that they must have been on notice that a defect in ObTape caused their injuries. Plaintiffs did not point to any Minnesota authority holding that a plaintiff must be on actual notice that her specific injuries were caused by a product defect.Rather, the precedent establishes that a claim accrues when the plaintiff becomes aware of an injury and a causal connection between the injury and the defendant's product. Klempka, 963 F.2d at 170. *9 Plaintiffs nonetheless contend that two Eighth Circuit cases and one Minnesota District Court case support denial of summary judgment on their negligence and strict liability claims The Court disagrees. First, they point to Hildebrandt v. Allied Corp., 839 F.2d 396 (8th Cir. 1987), where the plaintiffs alleged that they suffered lung damage due to their exposure to a toxic chemical at their workplace. But there, unlike here, the plaintiffs' doctors initially told the plaintiffs that there was no correlation between their symptoms and the chemical. Id. at 399. The Eighth Circuit thus concluded that the plaintiffs' claims did not accrue until the cause of the plaintiffs' injuries was rationally identified. Second, Plaintiffs point to Tuttle v. Lorillard Tobacco Co., 377 F.3d 917 (8th Cir. 2004). In Tuttle, the district court found that the decedent's smokeless tobacco product liability action accrued when the decedent discovered a lump in his cheek. The Eighth Circuit reversed because the decedent's doctor initially told the decedent that the lump was caused by an oral infection and was treatable with antibiotics—not that it was oral cancer caused by the tobacco. Id. at 922. Third, Plaintiffs point to Huggins v. Stryker Corp., 932 F. Supp. 2d 972 (D. Minn. 2013). In Huggins, the plaintiff asserted that the defendant's pain pump caused a condition that resulted in degeneration of his cartilage. The plaintiffs doctor discovered the loss of cartilage in 2002, but he did not connect the condition to the pain pump or tell the plaintiff that there was such a connection. The district court noted that the "first article recognizing a potential causal link between pain pumps" and the plaintiffs condition was not published until 2007. Id. Hildebrandt, Tuttle, and Huggins are all distinguishable from Plaintiffs' cases. In Hildebrandt, Tuttle, and Huggins, the plaintiffs suffered injuries that could have been caused by the defendant's product OR could have been caused by something else, and the courts concluded that the cause of action did not accrue until the plaintiffs had some objective information suggesting a causal link between the product and the injury. In contrast, here, each Plaintiff suffered injuries that were connected to an erosion or infection of the ObTape, and each Plaintiff 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 of her excision procedure, if not before. Plaintiffs argue that even if Minnesota's discovery rule does not save their strict liability and negligence claims, the statute of limitations should be tolled by fraudulent concealment. "Fraudulent concealment, if it occurs, will toll the running of the statute of limitations until discovery or reasonable opportunity for discovery of the cause of action by the exercise of due diligence."Ho/stad v. Sw. Porcelain, Inc., 421 N.W.2d 371, 374 (Minn. Ct. App. 1988); accord Hydra-Mac, Inc. v. Onan Corp., 450 N.W.2d 913, 918 (Minn. 1990)."The party claiming fraudulent concealment has the burden of showing that the concealment could not have been discovered sooner by reasonable diligence on his part and was not the result of his own negligence."Wild v. Rarig, 234 N.W.2d 775, 795 (Minn. 1975). As discussed above, each Plaintiff 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 of her excision procedure, if not before. A reasonable person in that situation would take some action to follow up on the cause of her injuries and try to find out whether the injuries © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 4:13-cv-00323-CDL Document 40-9 Filed 08/29/16 Page 8 of 10 In re Mentor Corp. Obtape Transobturator Sling Products Liability..., Slip Copy (2015) 2015 WI:0307267— were caused by a problem with ObTape, a problem with the implant surgery, or some other problem. But Plaintiffs pointed to no evidence that they took any action to investigate their potential claims even though they knew (or had enough information to know) there was a connection between their injuries and the ObTape.4 Under these circumstances, the Court concludes that fraudulent concealment does not toll the statute of limitations. *10 None of the Plaintiffs filed their complaints within six years after their claims accrued. Their strict liability and negligence claims (including their negligent misrepresentation claims) are therefore time-barred. The loss of consortium claims of Anthony Klum and Mateo Urbieta fail because their wives' claims fail. Kohler v. Fletcher, 442 N.W.2d 169, 173 (Minn. Ct. App. 1989). ("As a husband's claim for loss of consortium is derivative only, if his wife's underlying tort claim fails, his claim for loss of consortium also fails."). II. Fraud and Intentional Misrepresentation Claims Mentor also seeks summary judgment on Plaintiffs' fraud and intentional misrepresentation claims. 5 The statute of limitations for fraud claims is six years. Minn. Stat. § 541.05 subd. 1(6). A fraud cause of action "shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud."/d. But "the facts constituting fraud are deemed to have been discovered when, with reasonable diligence, they could and ought to have been discovered."Veldhuizen v. A.O. Smith Corp., 839 F. Supp. 669, 674 (D. Minn. 1993) (quoting Bustad v. Bustad, 116 N.W.2d 552, 555 (Minn. 1962))."The failure to actually discover the fraud does not toll the statute of limitations if it is inconsistent with reasonable diligenceNd.; accord Blegen v. Monarch Life Ins. Co., 365 N.W.2d 356, 357-58 (Minn. Ct. App. 1985) Plaintiffs "carry the burden of proving that they did not discover the facts constituting fraud within six years before commencement of the action."Veldhuizen, 839 F. Supp. 674. "They must also show that they could not have discovered the fraud through the exercise of reasonable diligence."/d. Again, each Plaintiff 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 of her excision procedure, if not before. A reasonable person in that 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. But Plaintiffs pointed to no evidence that they exercised reasonable diligence to investigate their potential claims even though they knew (or had enough information to know) there was a connection between their injuries and the ObTape. They also did not point to evidence that they could not have discovered enough facts to support their fraud and intentional misrepresentation claims had they started investigating the connection they made (or had enough information to make) between ObTape and their injuries within a reasonable time after they discovered the connection. For these reasons, the Court finds that Plaintiffs' fraud and intentional misrepresentation claims are time-barred. CONCLUSION *11 For the reasons set forth above, Mentor's summary judgment motions are granted as to Jackson (ECF No. 37 in 4:13-cv-93), Rupert (ECF No. 41 in 4:13-cv-101), Charles (ECF No. 34 in 4:13-cv-151), Klum (ECF No. 34 in 4:13- cv-153), Leon (ECF No. 40 in 4:13-cv-241), Urbieta (ECF No. 31 in 4:13-cv-346), Lovell (ECF No. 31 in 4:13-cv-377), Suen (ECF No. 32 in 4:13-cv-426), Uriegas (ECF No. 29 in 4:13-cv-483), Degroot (ECF No. 30 in 4:13-cv-503), Hall (ECF No. 25 in 4:14-cv-61), and Chambers (ECF No. 26 in 4 :14-cv-63). IT IS SO ORDERED, this 21st day of December, 2015. All Citations Slip Copy, 2015 WL 9307267 Footnotes 1 Rupert objects to the medical record because it has not been authenticated since scheduling conflicts prevented the parties from taking Dr. Fassuliotis's deposition before the dispositive motion deadline. Rupert does not appear to dispute that the document is her medical record from Dr. Fassuliotis's office, which she produced to Mentor during discovery. Nestiaw © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 Case 4:13-cv-00323-CDL Document 40-9 Filed 08/29/16 Page 9 of 10 In re Mentor Corp. Obtape Transobturator Sling Products Liability..., Slip Copy (2015) 2015 WL 9307267 . TheCourt thus finds that this document could be reduced to admissible evidence at trial and thus may be considered at summary judgment. 2 Charles did not respond to Mentor's summary judgment motion or statement of material facts. Therefore, under the Court's local rules, Mentor's material facts are deemed admitted. M.D. Ga. R. 56. The Court has reviewed Mentor's citations to the record and determined that no genuine fact dispute exists. 3 Mentor also argues that Plaintiffs' warranty claims are time-barred. Jackson, Rupert, Klum, Leon, Urbieta, Lovell, Suen, Degroot, Hall, and Chambers do not contest summary judgment as to their warranty claims, so Mentor is entitled to summary judgment on those claims. Charles did not respond to Mentor's summary judgment motion on this point and does not dispute that her warranty claims accrued when she was implanted with ObTape on February 9, 2004. SeeMinn. Stat. § 336.2-725(2) CA breach of warranty occurs when tender of delivery is made[.]"). She also does not dispute that she did not file her action within four years after her warranty claims accrued. SeeMinn. Stat. § 336.2-725(1) (establishing four- year limitations period for warranty claims). Accordingly, Mentor is entitled to summary judgment on Charles's warranty claims. Uriegas also did not file her complaint within four years after her ObTape implant. Uriegas contends that the statute of limitations for her warranty claims is tolled due to fraudulent concealment. As discussed in more detail below, fraudulent concealment does not apply to Uriegas's claims, and Mentor is entitled to summary judgment on her warranty claims. 4 There is evidence that two plaintiffs attempted an investigation regarding their problems with ObTape. First, Charles researched the issue and even had her doctor remove the ObTape because she was convinced it was causing her pain, but she did nothing to pursue her claims until years later. Second, Urbieta suspected that her implanting doctor had placed the sling incorrectly. About a year after her excision procedure, Urbieta asked the physician who excised her ObTape to make a statement to that effect. Urbieta Dep. 65:20-66:1. The physician refused and also told Urbieta that leg infections had been reported with mesh slings. Kielb Dep. 31:23-32:1. Urbieta offered no explanation for why she waited a year before asking questions of her physicians; such a delay does not demonstrate reasonable diligence. 5 In addition to their common law fraud and intentional misrepresentation claims, Plaintiffs assert "constructive fraud" claims. The Court construes those claims as claims for fraudulent misrepresentation based on the concealment of a material fact. See Flynn v. Am. Home Prods. Corp., 627 N.W.2d 342, 350 (Minn. Ct. App. 2001) ("Under Minnesota law, fraudulent misrepresentation based on the concealment of a material fact occurs when one party knowingly conceals a material fact that is 'peculiarly within his own knowledge,' and the other party relies on the presumption that the fact does not exist.") (quoting Richfield Bank & Trust Co. v. Sjogren, 309 Minn. 362, 364, 244 N.W.2d 648, 650 (1976)). End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. VW.StiaN1 © 2016 Thomson Reuters. 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