Kelley Lange et al v. Mentor Worldwide Llc et al

MOTION for Summary Judgment

M.D. Ga.October 24, 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-00533 (Peace) DEFENDANT MENTOR WORLDWIDE LLC’S MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF CAROL PEACE 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 summary judgment on all claims. Mentor is entitled to summary judgment because Plaintiff’s claims are time-barred under North Carolina law. The grounds for this Motion are more fully set forth in the attached Memorandum in Support. Dated: October 24, 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-00533-CDL Document 83 Filed 10/24/16 Page 1 of 2 2 2875709.1 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 24th day of October, 2016: Noah M. Wexler nwexler@arnolditkin.com Counsel for Plaintiff Carol Peace s/ John Q. Lewis John Q. Lewis Designated Lead Counsel for Defendant Mentor Worldwide LLC Case 4:13-cv-00533-CDL Document 83 Filed 10/24/16 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 No. 2004 Master Case No. 4:08-md-2004-CDL Individual Case No. 4:13-cv-00533 (Peace) DEFENDANT MENTOR WORLDWIDE LLC’S MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF CAROL PEACE Plaintiff Carol Peace brought this product liability action against Mentor for injuries she allegedly experienced following her ObTape implant surgery. All of her claims, however, are time-barred under North Carolina’s six-year statute of repose because she filed suit more than six years after the date of the product’s purchase. As this Court has determined on four prior occasions, her claims should thus be dismissed as a matter of law. UNDISPUTED FACTS RELEVANT TO THIS MOTION This Court previously described general facts related to ObTape (e.g., Apr. 22, 2010 Order, Doc. No. 241 at 4-5); Mentor will not restate them here because this motion is premised on undisputed facts unique to Plaintiff Carol Peace. In 2003, Plaintiff was diagnosed with stress urinary incontinence (“SUI”). (See Separate Statement of Material Facts (“SSMF”) ¶ 1.) By May 2005, Plaintiff’s SUI was significantly worse and, in consultation with Dr. Daljit Caberwal, she decided to proceed with an ObTape implant to treat her symptoms. (Id. ¶ 2.) On June 29, 2005, Dr. Caberwal performed Plaintiff’s ObTape implant surgery. (Id. ¶ 3.) Case 4:13-cv-00533-CDL Document 83-1 Filed 10/24/16 Page 1 of 8 2 Within a year and a half of her ObTape implant surgery, Plaintiff experienced vaginal discharge and bleeding and “knew something was wrong.” (Id. ¶ 4.) Plaintiff “decided it must be the tape in there or the device they used” because she “didn’t have them problems” before her ObTape was implanted. (Id. ¶ 5.) In December 2007, Dr. Caberwal told Plaintiff that she needed her sling removed to resolve her symptoms. (Id. ¶ 6.) Plaintiff testified that she knew then that the sling “didn’t work” and was causing her symptoms. (Id. ¶ 7.) Plaintiff told Dr. Caberwal that she saw on TV that some slings were defective and she was considering seeking legal help. (Id. ¶ 8.) On December 26, 2007, Dr. Caberwal removed a portion of Plaintiff’s ObTape. (Id. ¶ 9.) Her symptoms improved after the removal surgery. (Id. ¶ 10.) Plaintiff filed her suit alleging injury related to her ObTape implant on July 12, 2013 in the Los Angeles Superior Court for the State of California. (Id. ¶ 11.) She asserts six claims against Mentor: (I) Negligence & Negligence Per Se; (II) Strict Liability Design Defect; (III) Strict Liability Manufacturing Defect; (IV) Strict Liability Failure to Warn; (V) Breach of Implied Warranties; and (VI) Gross Negligence. (Id. ¶ 12.) Plaintiff is a North Carolina resident, and all of her ObTape-related medical treatment occurred in North Carolina. (Id. ¶ 13.) LAW AND ARGUMENT “The court shall grant summary judgment 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). “Rule 56(c) 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 Case 4:13-cv-00533-CDL Document 83-1 Filed 10/24/16 Page 2 of 8 3 Corp. v. Catrett, 477 U.S. 317, 322 (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). A. North Carolina Law Applies to Plaintiff’s Claims. “[I]n multidistrict litigation under 28 U.S.C. § 1407, the transferee court applies the state law that the transferor court would have applied.” In re Conagra Peanut Butter Prods. Liab. Litig., 251 F.R.D. 689, 693 (N.D. Ga. 2008) (citing Murphy v. F.D.I.C., 208 F.3d 959, 965 (11th Cir. 2000)); see also In re Managed Care Litig., 298 F. Supp. 2d 1259, 1296 (S.D. Fla. 2003) (“In cases transferred pursuant to 28 U.S.C. § 1407, the transferee district court must apply the state law, including its choice of law rules, that would have applied had there been no change of venue”). This case was originally filed in the Superior Court of California, Los Angeles County, and subsequently transferred to these MDL proceedings. (SSMF ¶ 11; Doc. 1-1.) Thus, this Court must apply California law. Under California’s borrowing statute, when a cause of action arises in another state and it is time-barred in that state, the cause of action is also time-barred in California. See Cal. Code Civ. Proc. § 361 (“When a cause of action has arisen in another State . . . and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this State[.]”). In other words, a plaintiff whose cause of action arose in another state cannot file her claim in California simply in an attempt to avoid the statutes of repose or limitations in her home state. Case 4:13-cv-00533-CDL Document 83-1 Filed 10/24/16 Page 3 of 8 4 This Court found in two prior cases in nearly identical circumstances that California’s borrowing statute requires application of the law of the state where the plaintiff resided and received her ObTape-related medical treatment. See In re Mentor Corp. ObTape Transobturator Sling Prod. Liab. Litig., ., MDL No. 2004, No. 4:12-CV- 102 (Purol), 2015 WL 4644626, at *2 (M.D. Ga. Aug. 4, 2015) (same, under Michigan law) (attached as Ex. D to Lewis Decl.); In re Mentor Corp. ObTape Transobturator Sling Prod. Liab. Litig., MDL No. 2004, No. 4:10-CV-5058, 2013 WL 123079 (Liszka), at *1 (M.D. Ga. Jan. 9, 2013) (holding Complaint filed in Central District of California was time-barred under New York’s statute of limitations, the state of the plaintiff’s residency and relevant medical treatment) (attached as Ex. E to Lewis Decl.); see also Vestal v. Shiley Inc., No. SACV96-1205, 1997 WL 910373, at *2 (E.D. Cal. Nov. 17, 1997) (concluding that a claim arises in the state where medical device was purchased and implanted and where injury occurred) (attached as Ex. F to Lewis Decl.). Here, it is undisputed that Plaintiff is a North Carolina resident and that all of Plaintiff’s medical treatment involving her ObTape occurred in North Carolina. (SSMF ¶ 13). Thus, Plaintiff’s cause of action arose in North Carolina, and North Carolina’s statute of repose applies under California’s borrowing statute. B. Summary Judgment Is Warranted as a Matter of Law Because Plaintiff’s Claims Are Time-Barred Under North Carolina’s Statute of Repose. Under North Carolina law, the statute of repose bars product liability claims filed more than six years after the date of a product’s purchase: “No action for the recovery of damages for personal injury . . . based upon or arising out of any alleged defect or any failure in relation to a product shall be brought more than six years after the date of Case 4:13-cv-00533-CDL Document 83-1 Filed 10/24/16 Page 4 of 8 5 initial purchase for use or consumption.” N.C. Gen. Stat. § 1-50(a)(6).1 “Statutes such as N.C.G.S. § 1-50(6) [predecessor to § 1-46.1(1)] have been denominated statutes of repose because they set a fixed limit after the time of the product’s manufacture, sale, or delivery beyond which a plaintiff’s claim will not be recognized.” Boudreau v. Baughman, 368 S.E.2d 849, 856-57 (N.C. 1988). North Carolina’s statute of repose jurisprudence is well-established. “Whether a statute of repose has expired is a question of law.” Chicopee, Inc. v. Sims Metal Works, Inc., 391 S.E.2d 211, 213 (N.C. Ct. App. 1990). “A statute of repose is a substantive limitation, and is a condition precedent to a party’s right to maintain a lawsuit.” Tipton & Young Constr. Co., Inc. v. Blue Ridge Structure Co., 446 S.E.2d 603, 605 (N.C. Ct. App. 1994), aff’d per curiam, 456 S.E.2d 308 (N.C. 1995). “It is well established North Carolina law . . . that a plaintiff has the burden of proving that the statute of repose does not bar his or her claim.” Robinson v. Bridgestone/Firestone N. Am. Tire, L.L.C., 703 S.E.2d 883, 889 (N.C. Ct. App. 2011). The statute of repose cannot be tolled for delayed discovery; the date of purchase starts the clock under all circumstances: Unlike an ordinary statute of limitations which begins running upon accrual of the claim . . . the period contained in the statute of repose begins when a specific event occurs, regardless of whether a cause of action has accrued or whether any injury has resulted. Thus, the repose serves as an unyielding and absolute barrier that prevents a plaintiff’s right of action even before his cause of action may accrue. . . . 1 This statute of repose was amended in 2009 (see N.C. Gen. Stat. § 1-46.1(1)), but that amendment only applies to causes of action that accrued on or after October 1, 2009. The amended statute of repose does not apply in this case because Plaintiff’s ObTape was purchased more than four years before its effective date. Case 4:13-cv-00533-CDL Document 83-1 Filed 10/24/16 Page 5 of 8 6 Black v. Littlejohn, 325 S.E.2d 469, 474-75 (N.C. 1985); see also Lackey v. DePuy Orthopaedics, Inc., No. 5:10-cv-00030, 2011 WL 2791264 (W.D.N.C., July 14, 2011) (holding § 1-50(a)(6) barred plaintiff’s claims relating to hip implant purchased in January 1998) (attached as Ex. G to Lewis Decl.). Under North Carolina’s statute of repose, “the date of initial purchase for use or consumption” triggers the repose period. N.C. Gen. Stat. § 1-50(a)(6). Here, Plaintiff’s ObTape was implanted on June 29, 2005 (SSMF ¶ 3), and that is the latest possible date that can be considered “the date of initial purchase for use or consumption.” Plaintiff filed her Complaint on July 12, 2013 - over eight years after her ObTape implant. (Id. ¶ 11.) Plaintiff’s action is therefore time-barred as a matter of law under N.C. Gen. Stat. § 1-50(a)(6). See Bryant v. Don Galloway Homes, Inc., 556 S.E.2d 597, 600 (N.C. Ct. App. 2001) (“Summary judgment is proper if the pleadings or proof show without contradiction that the statute of repose has expired.”). This Court recently found, under nearly identical circumstances, that North Carolina’s statute of repose barred a plaintiff’s claims when her ObTape was purchased no later than February 17, 2005 (the date of her implant surgery) and she delayed filing her Complaint until July 15, 2013 - over eight years later. In re Mentor Corp. ObTape Transobturator Sling Prod. Liab. Litig., MDL No. 2004, No. 4:13-CV-301 (Jeffcoat- Canter), 2016 WL 4385846, at *3 (M.D. Ga. Aug. 15, 2016) (attached as Ex. H to Lewis Case 4:13-cv-00533-CDL Document 83-1 Filed 10/24/16 Page 6 of 8 7 Decl.).2 Here, it is undisputed that Plaintiff’s ObTape was purchased more than eight years before she filed her Complaint. Her claims are therefore barred. C. Plaintiff’s Claims Are Time-Barred Under North Carolina’s Three-Year Statute Of Limitations. In the alternative, Plaintiff’s claims are time-barred by the applicable statute of limitations. This Court should grant summary judgment in favor of Mentor for this alternative reason. Under North Carolina law, claims involving personal injury or bodily harm must be commenced within three years of the date the bodily harm “becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs.” N.C. Gen. Stat. § 1-52(16); see also Fischer v. GlaxoSmithKline, LLC, No. 1:12- cv-392, 2012 WL 6738318, at *4 (M.D.N.C. Dec. 28, 2012) (attached as Ex. L to Suppl. Lewis Decl.) (granting motion to dismiss on statute of limitations grounds where plaintiff was aware of a causal connection between the product and his injuries more than six years before filing suit). Plaintiff admits that (1) she sustained injuries attributed to her ObTape in December 2007, and (2) she did not file her complaint until July 2013, nearly six years later. (SSMF ¶¶ 4-11.) These undisputed facts establish that her claims are time-barred as a matter of law. Mentor accordingly requests dismissal on this alternative ground. 2 This court previously reached similar conclusions in Wallace v. Mentor Worldwide LLC, No. 4:12-cv-335, Order Granting Mentor’s Mot. for Summ. J. (M.D. Ga. March 4, 2016) (attached as Ex. I to Lewis Decl.), Duarte v. Mentor Worldwide LLC, No. 4:13-cv- 267, Order Granting Mentor’s Mot. for Summ. J. (M.D. Ga. Dec. 23, 2015) (attached as Ex. J to Lewis Decl.), and Broome v. Mentor Worldwide LLC, No. 4:11-cv-5078, Order Granting Mentor’s Mot. for Summ. J. (M.D. Ga. Feb. 11, 2013) (attached as Ex. K to Lewis Decl.). Case 4:13-cv-00533-CDL Document 83-1 Filed 10/24/16 Page 7 of 8 8 012813\003609\2875733.1 CONCLUSION Plaintiff’s claims fail as a matter of law because her claims are barred under North Carolina’s six-year statute of repose and three-year statute of limitations. Accordingly, Defendant Mentor Worldwide LLC respectfully requests that this Court grant summary judgment in its favor as to all of Plaintiff’s claims. Dated: October 24, 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-00533-CDL Document 83-1 Filed 10/24/16 Page 8 of 8 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-00533 (Peace) DEFENDANT MENTOR WORLDWIDE LLC’S SEPARATE STATEMENT OF MATERIAL FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF CAROL PEACE 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 against Plaintiff Carol Peace. 1. In 2003, Plaintiff was diagnosed with stress urinary incontinence (“SUI”). (Dep. of Carol Peace (“Peace Dep.”) 62:18-63:17, attached as Ex. A to Decl. of John Q. Lewis (“Lewis Decl.”).) 2. By May 2005, Plaintiff’s SUI was significantly worse and, in consultation with Dr. Daljit Caberwal, she decided to proceed with an ObTape implant to treat her symptoms. (Id. 68:1-14, 70:5-18; Dep. of Daljit S. Caberwal, M.D. (“Caberwal Dep.”) 41:13-21, attached as Ex. B to Lewis Decl.) 3. On June 29, 2005, Dr. Caberwal performed Plaintiff’s ObTape implant surgery. (Caberwal Dep. 42:12-14; see also Plaintiff’s Fact Sheet (“PFS”), p. 2, attached as Ex. C to Lewis Decl.) Case 4:13-cv-00533-CDL Document 83-2 Filed 10/24/16 Page 1 of 3 2 4. Within a year and a half of her ObTape implant surgery, Plaintiff experienced vaginal discharge and bleeding and “knew something was wrong.” (Peace Dep. 24:1-11.) 5. Plaintiff “decided it must be the tape in there or the device they used” because she “didn’t have them problems” before her ObTape was implanted. (Id. 33:10- 24.) 6. In December 2007, Dr. Caberwal told Plaintiff that she needed her sling removed to resolve her symptoms. (Id. 88:9-22; Caberwal Dep. 62:7-63:1, 63:18-25, 172:18-173:1.) 7. Plaintiff testified that she knew then that the sling “didn’t work” and was causing her symptoms. (Peace Dep. 21:22-22:4, 88:9-22, 93:8-20.) 8. Plaintiff told Dr. Caberwal that she saw on TV that some slings were defective and she was considering seeking legal help. (Caberwal 170:13-171:6.) 9. On December 26, 2007, Dr. Caberwal removed a portion of Plaintiff’s ObTape. (Id. 65:10-22; see also PFS p 2.) 10. Plaintiff’s symptoms improved after the removal surgery. (Peace Dep. 94- 12:16, 96-2:15; Caberwal Dep. 69:11-70:3.) 11. Plaintiff filed her suit alleging injury related to her ObTape implant on July 12, 2013 in the Los Angeles Superior Court for the State of California. (Compl., Doc. 1-1.) 12. She asserts six claims against Mentor: (I) Negligence & Negligence Per Se; (II) Strict Liability Design Defect; (III) Strict Liability Manufacturing Defect; (IV) Strict Liability Failure to Warn; (V) Breach of Implied Warranties; and (VI) Gross Negligence. (Id.) Case 4:13-cv-00533-CDL Document 83-2 Filed 10/24/16 Page 2 of 3 3 2875713.1 13. Plaintiff is a North Carolina resident, and all of her ObTape-related medical treatment occurred in North Carolina. (PFS, pp. 2-3.) Dated: October 24, 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-00533-CDL Document 83-2 Filed 10/24/16 Page 3 of 3 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-00533 (Peace) DECLARATION OF JOHN Q. LEWIS IN SUPPORT OF DEFENDANT MENTOR WORLDWIDE LLC’S MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF CAROL PEACE 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 are true and correct copies of excerpts from the Deposition of Carol Peace, dated August 1, 2016. 3. Attached as Exhibit B are true and correct copies of excerpts from the Deposition of Daljit S. Caberwal, M.D., dated August 17, 2016. 4. Attached as Exhibit C is a true and correct copy of Plaintiff Carol Peace’s Plaintiff Fact Sheet. 5. Attached as Exhibit D is a true and correct copy of this Court’s Order in In re Mentor Corp. ObTape Transobturator Sling Products Liability Litigation, MDL No. 2004, No. 4:12-CV-102 (Purol), 2015 WL 4644626 (M.D. Ga. Aug. 4, 2015). Case 4:13-cv-00533-CDL Document 83-3 Filed 10/24/16 Page 1 of 3 2 6. Attached as Exhibit E is a true and correct copy of this Court’s Order in In re Mentor Corp. ObTape Transobturator Sling Products Liability Litigation, MDL No. 2004, No. 4:10-CV-5058 (Liszka), 2013 WL 123079 (M.D. Ga. Jan. 9, 2013). 7. Attached as Exhibit F is a true and correct copy of an unreported case, Vestal v. Shiley Inc., No. SACV96-1205, 1997 WL 910373 (E.D. Cal. Nov. 17, 1997). 8. Attached as Exhibit G is a true and correct copy of an unreported case, Lackey v. DePuy Orthopaedics, Inc., No. 5:10-cv-30, 2011 WL 2791264 (W.D.N.C. July 14, 2011). 9. Attached as Exhibit H is a true and correct copy of this Court’s Order in In re Mentor Corp. ObTape Transobturator Sling Products Liability Litigation, No. 4:13- CV-301 (Jeffcoat-Canter), 2016 WL 4385846 (M.D. Ga. Aug. 15, 2016). 10. Attached as Exhibit I is a true and correct copy of this Court’s Order in Wallace v. Mentor Worldwide LLC, No. 4:12-cv-335, Order Granting Mentor’s Mot. for Summ. J. (Doc. 39) (M.D. Ga. March 4, 2016). 11. Attached as Exhibit J is a true and correct copy of this Court’s Order in Duarte v. Mentor Worldwide LLC, No. 4:13-cv-267, Order Granting Mentor’s Mot. for Summ. J. (Doc. 41) (M.D. Ga. Dec. 23, 2015). 12. Attached as Exhibit K is a true and correct copy of this Court’s Order in Broome v. Mentor Worldwide LLC, No. 4:11-cv-5078, Order Granting Mentor’s Mot. for Summ. J. (Doc. 47) (M.D. Ga Feb. 11, 2013). 13. Attached as Exhibit L is a true and correct copy of an unreported case, Fischer v. GlaxoSmithKline, LLC, No. 1:12-cv-392, 2012 WL 6738318 (M.D.N.C. Dec. 28, 2012). Case 4:13-cv-00533-CDL Document 83-3 Filed 10/24/16 Page 2 of 3 3 2875732.1 I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this 24th day of October, 2016, in Cleveland, Ohio. s/ John Q. Lewis John Q. Lewis Case 4:13-cv-00533-CDL Document 83-3 Filed 10/24/16 Page 3 of 3 EXHIBIT A Case 4:13-cv-00533-CDL Document 83-4 Filed 10/24/16 Page 1 of 16 1 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA 2 COLUMBUS DIVISION 3 4 IN RE: MENTOR CORP. OBTAPE ) MDL Case No. 2004 5 TRANSOBTURATOR SLING ) PRODUCTS LIABILITY ) 6 LITIGATION ) ) 7 ) THIS DOCUMENT RELATES TO: ) Individual Case No. 8 ) 4:13-cv-00533 (Peace) Carol Peace v. Mentor ) 9 Worldwide, LLC ) Case No. 4:13-cv-00533-CDL ) 10 ) 11 12 13 Videotape Deposition of CAROL PEACE, taken 14 on behalf of the Defendant, before K. Denise Neal, 15 Registered Professional Reporter and Notary Public, 16 at the offices of Regus Green Valley, 717 Green 17 Valley Road, Suite 200, Greensboro, North Carolina, 18 on the 1st day of August, 2016, commencing at 9:10 19 a.m. 20 21 22 23 * * * * * 24 25 Job No. CS2346146 Page 1 Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00533-CDL Document 83-4 Filed 10/24/16 Page 2 of 16 1 APPEARANCES OF COUNSEL: 2 On Behalf of the Plaintiff: 3 RYAN S. MACLEOD, Esq. 4 Arnold & Itkin, LLP 5 6009 Memorial Drive 6 Houston, Texas 77007 7 (713) 222-3800 8 rmacleod@arnolditkin.com 9 10 On Behalf of the Defendant: 11 ZACHARY ADAMS, Esq. 12 Tucker Ellis, LLP 13 950 Main Avenue, Suite 1100 14 Cleveland, Ohio 44113-7213 15 (216) 696-5474 16 zachary.adams@tuckerellis.com 17 18 Also Present: 19 Mr. Jerry Peace 20 21 Videographer: 22 DeAndre Shivers, CLVS 23 24 * * * * * 25 Page 2 Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00533-CDL Document 83-4 Filed 10/24/16 Page 3 of 16 1 when did you first begin experiencing that? 2 A. During -- after surgery before it was 3 removed. 4 Q. So between having it implanted and before 5 it was explanted? 6 A. Right. 7 Q. And when did you begin to feel like the 8 ObTape was causing that pain? 9 A. I saw two OBY-GNs and one said I had 10 vaginal infection, gave me -- well, didn't give it 11 to me, a prescription vaginal cream and antibiotics. 12 Didn't work. I went to another one. He said I had 13 a hole in my intestines. I needed to go to Baptist 14 Hospital. 15 And it was just stress, stress and concern. 16 Well, have I got cancer or what is going on? And 17 that's when I decided it was coming from that. I 18 went back to see Dr. Caberwal. 19 Q. So it was after these two doctors' 20 appointments where you got, I guess, let's say 21 conflicting diagnoses? 22 A. Right, both of them. One was infection. I 23 took antibiotics about the whole time it was in. 24 Q. And so by the time you were getting the 25 ObTape removed, you thought for sure the ObTape was Page 21 Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00533-CDL Document 83-4 Filed 10/24/16 Page 4 of 16 1 causing your issues? 2 A. Yes. Dr. Caberwal said it had to come out 3 and in about six months we could try again, but it 4 won't no way. 5 Q. And so were those two doctors you mentioned 6 the only doctors you saw for the tenderness in your 7 lower abdomen? 8 A. And the bleeding and smell. 9 Q. Sure. 10 A. The discharge. 11 Q. Okay. I'm just looking at, you know, the 12 things you have going on today. We'll get into the 13 bleeding and the discharge. I want to know all 14 about that for sure. I'm just trying to get into, 15 you know, the things that you're experiencing today, 16 understanding your course of treatment for those 17 specific things. 18 So right now we're only talking about that 19 tenderness you're feeling. And so what I'm 20 wondering is were those two doctors you saw the only 21 doctors you saw for treatment of the tenderness in 22 your lower abdomen? 23 A. Yes. 24 Q. And after those doctor visits you thought 25 the tenderness was caused by the ObTape? Page 22 Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00533-CDL Document 83-4 Filed 10/24/16 Page 5 of 16 1 A. When I started bleeding and had that 2 discharge, I knew something was wrong. I didn't 3 know exactly what. 4 Q. And when was that? When did you have the 5 bleeding and discharge? 6 A. About a year-and-a-half. Not too long 7 after surgery the bleeding started, and then the 8 smell just come on worse and worse. 9 Q. So it was a year-and-a-half after surgery 10 that you had the bleeding and discharge? 11 A. Yes, before it was removed. 12 Q. Okay. And you said, again, you didn't see 13 anyone specifically for treatment about the leakage, 14 but you were seeing doctors for other reasons; 15 correct? 16 A. Yes, for the symptoms I was having. 17 Q. And you said today that you still have 18 leakage. Can you describe how much? 19 A. If I laugh hard, jump. If I hold it too 20 long, I start leaking when I stand up. 21 Q. So when you exert yourself? 22 A. Yes. 23 Q. And do you wear any panty liners? 24 A. Yes. I wear pads. 25 Q. About how many a day would you go through? Page 24 Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00533-CDL Document 83-4 Filed 10/24/16 Page 6 of 16 1 Q. So for all these symptoms, vaginal 2 bleeding, vaginal discharge and vaginal odor, you 3 began experiencing them within three months after 4 the surgery, but you never attributed them to ObTape 5 until you saw the commercial; correct? 6 MR. MACLEOD: Objection to form. 7 THE WITNESS: I'd say -- could you read 8 that again? 9 (The record was read by the reporter.) 10 THE WITNESS: Correct. And after I saw 11 the two doctors, I decided it must be the tape in 12 there or the device they used because I've not -- I 13 didn't have them problems, most of them, before. 14 Q. (By Mr. Adams) So then after you saw Dr. 15 Brooks and Dr. Lemmons -- 16 A. Yeah. 17 Q. -- you thought your complications were 18 related to your ObTape? 19 A. Yes. 20 Q. And, again, you didn't see Dr. Brooks and 21 Lemmons after you had the sling removed; correct? 22 A. No, because some of the symptoms 23 disappeared. I went back to Caberwal and he didn't 24 tell me. He just said it had to come out. 25 Q. Now, I want to talk about a couple of Page 33 Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00533-CDL Document 83-4 Filed 10/24/16 Page 7 of 16 1 Q. And she works with Dr. Blake? 2 A. Schultz. She did work with Dr. Blake until 3 he went out. 4 Q. Before your ObTape procedure did you ever 5 have any surgery involving the use of vaginal mesh? 6 A. No. 7 Q. So now we're going to talk a little bit 8 about symptoms that led to you having the ObTape 9 done. So I just want to represent to you that 10 whenever I talk about stress urinary incontinence, 11 I'm talking about urine leakage whenever you exert 12 yourself, so lifting, coughing, sneezing, that kind 13 of thing. 14 Whenever I talk about urge incontinence, 15 I'm talking about the feeling like you have to go to 16 the bathroom even if you just went or feeling like 17 you've got to go, you know, when you wake up in the 18 night, things like that. So the first medical 19 record I have of you experiencing incontinence 20 issues is August 25th, 2003. Does that sound about 21 right to you? 22 A. Yes. 23 Q. Okay. And it looks like you saw a Dr. 24 Chao. Do you remember seeing Dr. Chao? 25 A. Yes. Page 62 Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00533-CDL Document 83-4 Filed 10/24/16 Page 8 of 16 1 Q. Okay. And he notes that you are 2 experiencing mild to moderate urgency, which again 3 is that feeling of, you know, needing to go to the 4 bathroom a lot, more often than you normally would. 5 A. Yes. 6 Q. Do you remember experiencing that? 7 A. Yes. 8 Q. Okay. And he also mentions that you were 9 experiencing nocturia, which is having to wake up 10 and go to the bathroom? 11 A. Yes. 12 Q. You were experiencing that two to four 13 times a night. Do you remember that? 14 A. Yes. 15 Q. Okay. And then you also complain of stress 16 incontinence with coughing? 17 A. Yes. 18 Q. Okay. And so with those symptoms of the 19 urgency, waking up to go to the bathroom, leaking 20 whenever you're lifting things, about how long were 21 you experiencing those before you decided to see a 22 doctor? 23 A. That was why I saw him. 24 Q. Right, but, you know, did you just have 25 those symptoms for a week and you were like I'm Page 63 Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00533-CDL Document 83-4 Filed 10/24/16 Page 9 of 16 1 Q. And so right before you had the surgery to 2 implant the ObTape, what kinds of symptoms were you 3 experiencing? 4 A. Leakage, bad. 5 Q. Like can you explain? What do you mean by 6 bad leakage? Like how many pads a day? What 7 triggered it? 8 A. Sometimes two or three. I did lifting at 9 work. 10 Q. So it was a pretty serious problem? 11 A. Yes. 12 Q. And it had progressively been getting 13 worse; correct? 14 A. Yes. 15 Q. And so before the surgery aside from 16 leakage, were you experiencing any other symptoms? 17 A. No. 18 Q. Okay. And before you mentioned that you'd 19 kind of keep going through your day regardless of 20 leakage. Right before you had the surgery were you 21 able to still kind of do your day-to-day activities 22 or was it impacting your life in any other way? 23 A. Some, but not to the extent -- I would 24 eventually get done. 25 Q. Can you give me like an example, something Page 68 Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00533-CDL Document 83-4 Filed 10/24/16 Page 10 of 16 1 surgery with you? 2 A. No. 3 Q. Not at the seminar; right? 4 A. No. 5 Q. And so do you remember having a test done 6 on your bladder? The medical records are like 7 uroflowmetry, stuff like that. Do you remember 8 those tests? 9 A. Yes, yes. 10 Q. Okay. And you remember those being 11 consistent with a diagnosis of stress urinary 12 incontinence? Do you remember those results being 13 bad? 14 A. Yes. 15 Q. And so you had tried the exercise. You had 16 the testing done. Things weren't going well and 17 then you decided to have the sling; correct? 18 A. I decided to have surgery. 19 Q. Okay. 20 A. And I think to his knowledge he done what 21 he thought was best. 22 Q. All right. And so whenever he proposed 23 this sling operation at the seminar, was he talking 24 specifically to you or just to all women? 25 A. No, just in general. Page 70 Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00533-CDL Document 83-4 Filed 10/24/16 Page 11 of 16 1 incontinence? 2 A. Not again. 3 Q. But it was your understanding that the 4 ObTape sling was designed to help with both of 5 those; correct? 6 A. Right. 7 Q. But you knew it wasn't? 8 MR. MACLEOD: Objection to form. 9 THE WITNESS: When he told me it had to be 10 removed, I knew it didn't work. 11 Q. (By Mr. Adams) Okay. So you knew at that 12 time it didn't work? 13 A. Yes. 14 Q. And, again, that's the visit with Dr. 15 Caberwal on August 14th, 2007; correct? 16 A. I didn't hear you. 17 (The record was read by the reporter.) 18 THE WITNESS: I don't know. 19 Q. (By Mr. Adams) But it was when he told you 20 you needed to have the sling removed; correct? 21 A. Yeah. The best of my knowledge, yes. It 22 had to come out. 23 Q. And so two days later you see Dr. Caberwal 24 again complaining of pain in the vaginal area, which 25 we've talked about, and itching. When did the Page 88 Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00533-CDL Document 83-4 Filed 10/24/16 Page 12 of 16 1 A. Yes. 2 Q. And was that because you thought the sling 3 was causing the infections and pain you were 4 experiencing? 5 A. It was not told to me it wasn't until I 6 seen it, that thing on TV, and I thought it could 7 very well have been that. 8 Q. So whenever you just said that you were 9 happy to have the sling removed, why were you happy 10 to have the sling removed? 11 A. Because the symptoms would go away I was 12 having. 13 Q. So you thought that the sling was causing 14 those symptoms? 15 A. Well, maybe back in my mind some way. He 16 just said it -- why would you take it out if it 17 wasn't? 18 Q. Right. So you thought if we're removing 19 this, there has to be a reason we're removing it? 20 A. Right. 21 Q. Okay. 22 A. But he never told me it was bad or 23 anything. I don't think he actually knowed. 24 Q. Sure. But you knew the sling was 25 causing -- Page 93 Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00533-CDL Document 83-4 Filed 10/24/16 Page 13 of 16 1 A. At the end when I -- 2 MR. MACLEOD: Objection to form. 3 Q. (By Mr. Adams) So did the urinary tract 4 infections go away once you had the sling removed? 5 A. If I took antibiotics, yes. 6 Q. Did you still have pain while urinating 7 after the sling was removed? 8 A. No. 9 Q. Did you still have vaginal itching once the 10 sling was removed? 11 A. No. 12 Q. So your first follow-up with Dr. Caberwal 13 after the removal of your sling, he said that you're 14 feeling much better. Is that consistent with your 15 memory? 16 A. Yes. 17 Q. Okay. And he says that this was a visit 18 post removal of an infected sling graft. Did he 19 tell you that he thought your sling was infected? 20 A. No. 21 Q. Did you ask him if the sling was infected? 22 A. No. 23 Q. Did Dr. Caberwal offer any explanation to 24 you as to why your symptoms regarding pain and 25 infection were resolved after your ObTape was Page 94 Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00533-CDL Document 83-4 Filed 10/24/16 Page 14 of 16 1 A. Yes. 2 Q. -- related to your ObTape surgery? So you 3 haven't had any infections since your ObTape was 4 removed? 5 A. Not that -- well, I can't say. If I take 6 certain medicines, I get a yeast infection. 7 Q. Okay. So aside from -- 8 A. Not related to that. 9 Q. So aside from yeast infections, you haven't 10 had any infection since your ObTape was removed; 11 correct? 12 A. No. 13 Q. And have you had any pain while urinating 14 since your ObTape was removed? 15 A. Not that I recall. 16 Q. And so in May of 2008 Dr. Caberwal makes 17 another -- you see him and he makes another medical 18 record and talked about how he had to remove the 19 sling because it had eroded through your vaginal 20 mucosa. Did Dr. Caberwal ever tell you that he 21 thought that is what had happened? 22 A. No. 23 Q. And he also notes that even though you were 24 experiencing incontinence, you didn't want to have 25 another sling put in; correct? Page 96 Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00533-CDL Document 83-4 Filed 10/24/16 Page 15 of 16 ·1· · · · · · · · · ·C E R T I F I C A T E ·2· ·NORTH CAROLINA: ·3· ·GUILFORD COUNTY: ·4· · · · · · ·I hereby certify that the foregoing ·5· ·deposition was reported, as stated in the caption, ·6· ·and the questions and answers thereto were reduced ·7· ·to the written page under my direction; that the ·8· ·foregoing pages 1 through 118 represent a true and ·9· ·correct transcript of the evidence given.· I further 10· ·certify that I am not in any way financially 11· ·interested in the result of said case. 12· · · · · · ·I have no written contract to provide 13· ·reporting services with any party to the case, any 14· ·counsel in the case, or any reporter or reporting 15· ·agency from whom a referral might have been made to 16· ·cover this deposition.· I will charge my usual and 17· ·customary rates to all parties in the case. 18· · · · · · ·This, the 10th day of August, 2016. 19 20 · · · · · · · · · · · · K. Denise Neal, RPR 21· · · · · · · · · · · Registered Professional Reporter · · · · · · · · · · · · Notary Public No. 200517500101 22 23 24 25 Page 119 Case 4:13-cv-00533-CDL Document 83-4 Filed 10/24/16 Page 16 of 16 EXHIBIT B Case 4:13-cv-00533-CDL Document 83-5 Filed 10/24/16 Page 1 of 13 1 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA 2 COLUMBUS DIVISION 3 4 IN RE: MENTOR CORP. OBTAPE ) MDL Case No. 2004 5 TRANSOBTURATOR SLING ) PRODUCTS LIABILITY ) 6 LITIGATION ) ) 7 ) THIS DOCUMENT RELATES TO: ) Individual Case No. 8 ) 4:13-cv-00533 (Peace) Carol Peace v. Mentor ) 9 Worldwide, LLC ) Case No. 4:13-cv-00533-CDL ) 10 ) 11 12 13 Videotape Deposition of DALJIT S. 14 CABERWAL, M.D., taken on behalf of the Defendant, 15 before K. Denise Neal, Registered Professional 16 Reporter and Notary Public, at the offices of 17 Asheboro Urology Clinic, 283 White Oak Street, 18 19 Asheboro, North Carolina, on the 17th day of August, 20 21 2016, commencing at 1:03 p.m. 22 23 24 25 * * * * * Page 1 Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00533-CDL Document 83-5 Filed 10/24/16 Page 2 of 13 1 APPEARANCES OF COUNSEL: 2 On Behalf of the Plaintiff: 3 RYAN S. MACLEOD, Esq. 4 Arnold & Itkin, LLP 5 6009 Memorial Drive 6 Houston, Texas 77007 7 (713) 222-3800 8 rmacleod@arnolditkin.com 9 10 On Behalf of the Defendant: 11 ANDREA M. GLINKA PRZYBYSZ, Esq. 12 Tucker Ellis, LLP 13 233 South Wacker Drive, Suite 6950 14 Chicago, Illinois 60606 15 (312) 624-6300 16 Andrea.przybysz@tuckerellis.com 17 18 On Behalf of the Deponent: 19 ROBERT N. YOUNG, Esq. 20 Carruthers & Roth, P.A. 21 235 North Edgeworth Street 22 Greensboro, North Carolina 27401 23 (336) 379-8651 24 rny@crlaw.com 25 Page 2 Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00533-CDL Document 83-5 Filed 10/24/16 Page 3 of 13 1 A. She did not come back to us in between. If 2 she had, then she didn't come to us. Many times not 3 necessarily is a pathological problem, but sometime 4 it is. So we rule it out that there's nothing 5 really wrong with her even though she had 6 microscopic hematuria. 7 Q. When you started treating her again in 2005 8 and between 2008, did you ever note microhematuria 9 in those years? 10 A. No, no, not that I recollect. 11 (Defendant's Exhibit Number 4 was marked 12 for identification.) 13 Q. (By Ms. Przybysz) Doctor, I'm going to 14 hand what I'm marking as Exhibit Number 4 to you, 15 which is a May 10th, 2005 visit with yourself; 16 correct? 17 A. Uh-huh. 18 Q. And Doctor, can you tell us what the chief 19 complaint of Ms. Peace was on this date? 20 A. The progressively worsening stress urinary 21 incontinence. 22 Q. And you agree that this complaint captures 23 what we discussed earlier that alternative 24 treatments including drug therapy and Kegel 25 exercises had failed in Ms. Peace; correct? Page 41 Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00533-CDL Document 83-5 Filed 10/24/16 Page 4 of 13 1 A. Right. 2 Q. Doctor, what do you mean in this note by 3 progressive? 4 A. That means it's stress incontinence which 5 is getting worse. 6 Q. And with respect to quite some time -- 7 A. Uh-huh. 8 Q. -- can you quantify that for me? 9 A. I would say for a period of months. 10 (Defendant's Exhibit Number 5 was marked 11 for identification.) 12 Q. (By Ms. Przybysz) Doctor, I'm going to 13 hand you the registration form from June 29th, 2005 14 as well as your op report. This is going to be 15 Exhibit Number 5. 16 MR. MACLEOD: Both these documents 17 together? 18 MS. PRZYBYSZ: Yes. So for the record, 19 Exhibit Number 5 is OBT PEACE C 00236 and PLF PEACE 20 C 00025 to 26. 21 Q. (By Ms. Przybysz) Doctor, with respect to 22 the first page of Exhibit Number 5, is this part of 23 the informed -- bless you. 24 MR. MACLEOD: Bless you. 25 THE WITNESS: I'm sorry. Page 42 Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00533-CDL Document 83-5 Filed 10/24/16 Page 5 of 13 1 A. Right. 2 Q. -- on Exhibit Number 6; correct? 3 A. Right, okay. 4 Q. And Doctor, you performed a pelvic 5 examination on this day; correct? 6 A. Uh-huh. 7 Q. Why did you perform pelvic examination on 8 December 3rd, 2007? 9 A. As a follow-up. She had induration in the 10 area, so we just wanted to see what's happening. 11 Q. You wanted to see if you could find a 12 reason for the infection; correct? 13 A. Yeah. 14 Q. Doctor, you identified a possible foreign 15 body on December 3rd, 2007; correct? 16 A. Uh-huh. 17 Q. And you scheduled a visit to remove the 18 foreign body with the patient; correct? 19 A. Uh-huh. 20 Q. Why did you schedule a visit to remove the 21 foreign body with the patient? 22 A. Why do you schedule for the foreign body to 23 be removed? 24 Q. Correct. 25 A. Because foreign body is causing the Page 62 Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00533-CDL Document 83-5 Filed 10/24/16 Page 6 of 13 1 infection. There's an induration there. There's 2 one time was a small drainage. And when I felt it, 3 I felt something is there just causing this 4 reaction. The induration is a reaction to something 5 eroding. 6 Q. Doctor, was it your opinion on 7 December 3rd, 2007 that the foreign body causing the 8 infection could be the patient's ObTape? 9 A. Pull it for me. One of my possibilities 10 are that it could be ObTape. 11 Q. And as you stated when we were looking at 12 the August 14th, 2007 note is that you thought that 13 induration could be related to her previous surgery, 14 specifically, the ObTape; correct? 15 A. Uh-huh, uh-huh. 16 Q. That's a yes; correct? 17 A. Yes. 18 Q. Doctor, did you tell Ms. Peace why you 19 scheduled a visit to remove her foreign body? 20 A. Yes. 21 Q. What did you tell her specifically? 22 A. Tell her there's a possibility that there's 23 a graft is eroding through and we're going to 24 explore that area and whatever is the causative 25 factor, we will try to correct it. Page 63 Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00533-CDL Document 83-5 Filed 10/24/16 Page 7 of 13 1 hand you the surgical note, what I'm marking as 2 Exhibit Number 8 -- 3 A. Okay. 4 Q. -- from December 26th, 2007 when you 5 removed part of the graft material. 6 A. Uh-huh. 7 Q. Let me know when you've had a moment to 8 review the document. 9 A. Uh-huh. Okay. 10 Q. Doctor, on December 26th, 2007 you were 11 able to locate the graft material in Mrs. Peace; 12 correct? 13 A. Correct. 14 Q. And you removed a portion of it; correct? 15 A. I removed whatever I could see was there, 16 correct. 17 Q. In terms of whatever you could see was 18 there -- 19 A. Uh-huh. 20 Q. -- do you recall whether or not the sling 21 had incorporated into Ms. Peace's tissues? 22 A. It was lying in the tissues, of course. 23 Q. For example, did you try to pull the mesh 24 at all on December 26th, 2007 or did you cut it out? 25 A. Whatever I could pull, I normally try to Page 65 Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00533-CDL Document 83-5 Filed 10/24/16 Page 8 of 13 1 A. Yes. Postoperative diagnosis. 2 Q. Doctor, can you explain to me what you mean 3 by this diagnosis? 4 A. That means patient, the graft has ulcerated 5 through the vaginal wall with chronic inflammation 6 around it causing patient's symptoms like urinary 7 tract infection. 8 Q. Doctor, going back to Exhibit Number 7 if 9 you would, please -- 10 A. Okay. 11 Q. -- Ms. Peace came back to see you about a 12 week after you removed her vaginal graft or ObTape; 13 correct? 14 A. Uh-huh. 15 Q. Is that a yes, Doctor? 16 A. Yes. 17 Q. And your note also states that you removed 18 granuloma. That's that fibrous tissue around the 19 eroded area; correct? 20 A. Granulation tissue, yes. 21 Q. Doctor, your note states that the patient 22 is doing very well; correct? 23 A. Uh-huh. 24 Q. Is that a yes, Doctor? 25 A. Yes. Page 69 Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00533-CDL Document 83-5 Filed 10/24/16 Page 9 of 13 1 Q. And so if Ms. Peace testified that she 2 believed that she may have been a candidate for 3 another sling procedure but she didn't want to move 4 forward with it, is that supported by your notes 5 that you had in your -- 6 A. Yeah. I tell if it gets worse, we will try 7 another one. She said she is not interested at this 8 time. 9 Q. I think her own words were on May 27, 2008 10 she said she does not want to have a sling procedure 11 anytime soon until things get any worse; correct? 12 A. Yeah, exactly. 13 Q. Is it true, Doctor, did you and her ever 14 have a conversation where you said Mr. Peace, you 15 need to go out and you need to hire an attorney? 16 A. She asked me if this could well come from a 17 faulty graft. It's possible. She said I've been 18 watching on the TV, and she volunteered the 19 statement that she might be seeking legal help. 20 Q. Okay. Would that have been if she 21 testified that she called an attorney and consulted 22 with an attorney in 2013 -- 23 A. I don't know when she called. I have no 24 idea. 25 Q. Because I don't see anywhere in your notes Page 170 Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00533-CDL Document 83-5 Filed 10/24/16 Page 10 of 13 1 A. Right, right, right. 2 MS. PRZYBYSZ: Form, misstates evidence. 3 Q. (By Mr. MacLeod) Were you able to tell her 4 that the graft, that the sling was exactly what 5 caused her all of her problems? 6 A. I told her this could be one of the 7 complications, that the graft would be infected. 8 It's one of the complications. So when it's 9 infected, we have to take it out. 10 Q. Did you tell her other reasons? 11 A. The other reasons I didn't know at that 12 time. 13 Q. No, no. I mean, did you tell her other 14 things that could be causing infection? 15 A. Like? 16 Q. Well, that's what I'm asking you is if you 17 told her alternatives because you said -- 18 A. I told her that's one of the reasons, that 19 the graft is infected, that the graft could be 20 infected because of faulty graft or infection 21 somewhere, whether it's a urinary tract and then 22 going through the mucosa into the graft, so the 23 graft has to come out. 24 Q. Did you ever communicate to her that it 25 could have just been an issue with her own body? Page 172 Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00533-CDL Document 83-5 Filed 10/24/16 Page 11 of 13 1 A. I did not communicate it. 2 Q. Did you ever have any communication with 3 her about what other doctors were telling her may 4 have been the cause of her complications? 5 A. No. 6 Q. Did you ever review any medical records 7 from other doctors that discussed what some of those 8 complications could have been caused by? 9 A. No. 10 Q. There's a note here on January 14, 2008 11 that says I told her she can resume sexual activity 12 after the first week of February. What type of 13 sexual activity did Ms. Peace engage in while the 14 sling was in place, do you know? 15 A. This is the statement she wanted to know if 16 she could, and in response to that, writing in 17 response she wanted to know if I could have sexual 18 activity. So I would write that for that reason. 19 Q. And I guess my question is the time between 20 the implantation in June of 2005 until this note in 21 February 25th, 2008, do you have any personal -- 22 A. I have no knowledge whether or not she had 23 any sexual activity. Normally I stop them for six 24 weeks. Whether she had in between, no, but after we 25 removed the graft and she was feeling better, she Page 173 Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00533-CDL Document 83-5 Filed 10/24/16 Page 12 of 13 ·1· · · · · · · · · ·C E R T I F I C A T E ·2· ·NORTH CAROLINA: ·3· ·GUILFORD COUNTY: ·4· · · · · · ·I hereby certify that the foregoing ·5· ·deposition was reported, as stated in the caption, ·6· ·and the questions and answers thereto were reduced ·7· ·to the written page under my direction; that the ·8· ·foregoing pages 1 through 208 represent a true and ·9· ·correct transcript of the evidence given.· I further 10· ·certify that I am not in any way financially 11· ·interested in the result of said case. 12· · · · · · ·I have no written contract to provide 13· ·reporting services with any party to the case, any 14· ·counsel in the case, or any reporter or reporting 15· ·agency from whom a referral might have been made to 16· ·cover this deposition.· I will charge my usual and 17· ·customary rates to all parties in the case. 18· · · · · · ·This, the 29th day of August, 2016. 19 20 · · · · · · · · · · · · K. Denise Neal, RPR 21· · · · · · · · · · · Registered Professional Reporter · · · · · · · · · · · · Notary Public No. 200517500101 22 23 24 25 Page 209 Case 4:13-cv-00533-CDL Document 83-5 Filed 10/24/16 Page 13 of 13 EXHIBIT C Case 4:13-cv-00533-CDL Document 83-6 Filed 10/24/16 Page 1 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION IN RE: MENTOR CORP. OBTAPE TRANSOBTURATION SLING PRODUCTS LIABILITY LITIGATION MDL NO. 2004 HON. CLAY D. LAND U.S. DISTRICT JUDGE THIS DOCUMENT RELATES TO: Carol Peace v. Mentor Worldwide, LLC Case No. 4:13-cv-00533-CDL PLAINTIFF’S 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-00533-CDL Document 83-6 Filed 10/24/16 Page 2 of 17 2 I. CASE INFORMATION 1. Name of person completing this form: Carol Peace 2. Name of person on whose behalf a claim is being made: Carol Peace 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): 5599808-051 2. Date of Implantation: 6/29/2005 3. Name and Address of Implanting Surgeon(s): Dr. Daljit Caberwal Asheboro Urology Clinic 283 White Oak Street Asheboro, NC 27203 4. Name and Address of Hospital, Clinic, or Doctor’s Office where implantation surgery was performed: Randolph Hospital 364 White Oak Street Asheboro, NC 27203 5. If the ObTape has been removed, provide the date on which it was removed: 12/26/2007 6. Name and Address of Surgeon(s) who removed the ObTape: Dr. Daljit Caberwal Asheboro Urology Clinic 283 White Oak Street Asheboro, NC 27203 Case 4:13-cv-00533-CDL Document 83-6 Filed 10/24/16 Page 3 of 17 3 7. Name and Address of Hospital, Clinic, or Doctor’s Office where surgery(ies) performed: Randolph Hospital 364 White Oak Street Asheboro, NC 27203 8. Name of the Manufacturer and Type of the replacement sling, if any: N/A 9. Were any portions of the ObTape surgically removed? Yes  No  a) If yes, what is the present location of the removed portions of the ObTape? Unknown - hospital pathology 10. Has any doctor ever told you that there are portions of the ObTape still in your body? Yes  No  If yes, please provide name and address of each such doctor: 11. Has any doctor told you that those portions of the ObTape still in your body need to be removed? Yes  No  If yes, please provide name and address of each such doctor: III. PERSONAL INFORMATION 1. Name (first, middle name or initial, last): Carol Dean Peace 2. Maiden or other names used and dates you used those names: Carol Dean Cooke 3. Current address and date when you began living at this address: 873 W. Main Street Franklinville, NC 27248 4. 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 Case 4:13-cv-00533-CDL Document 83-6 Filed 10/24/16 Page 4 of 17 4 5. Social Security Number: 246-62-3351 6. Date and place of birth: 7/18/1943, Edgecomb County, NC 7. Current marital status: Married 8. If married, please provide the following information: Date of marriage: 6/12/1992 Name of spouse: Jerry Peace Date and Place of Birth: 2/22/1945, Guilford/Randolph County, NC 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): Ray Moseley 7/23/1960 thru 9/1982 Reason for Termination: Deceased 10. If you have children, list each child’s name and date of birth and whether they were delivered vaginally or by Caesarian. Thomas Moseley 6/8/1962 Delivered Vaginal 11. Identify all schools you attended, starting with high school: Name of School Address Dates of Attendance Degree Awarded Major or Primary Field Randolph Community College Asheboro, NC Diploma Systems Tech Henderson High School Henderson, NC Diploma 12. Are you currently employed? Yes  No  If yes, please identify your current employer with name, address and telephone number and your position there: If not, did you leave your last job for a medical reason? Yes  No  If yes, describe why you left: Case 4:13-cv-00533-CDL Document 83-6 Filed 10/24/16 Page 5 of 17 5 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 Carol’s Hairstyling 873 W. Main Franklinville, NC 27248 Owner 14. If you have Medicare, please state your HICN number: 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  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: Worker’s Compensation (c) Nature of claimed injury/disability: Broken Arm (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  If yes, please provide the following information and attach copies of all pleadings, releases or settlement agreements and deposition transcripts you have: Case 4:13-cv-00533-CDL Document 83-6 Filed 10/24/16 Page 6 of 17 6 Party You Sued/Made Claim Against Court in Which Suit Filed/Claim Made Case/Claim Number Attorney Who Represented You Nature of Claim and Injury 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  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  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  If yes, please state the name and address of the third party with whom you have entered into such a contract. IV. HEALTHCARE PROVIDERS 1. 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. To the best of Plaintiff’s memory and knowledge, Plaintiff states: Name (Specialty) Address and Telephone Number Approx Dates/Years of Visits Reason/Procedure Performed Dr. Daljit Caberwal, Asheboro Urology Clinic (Urologist) 283 White Oak Street Asheboro, NC 27203 336/625-3997 Mentor ObTape mesh implant and partial explant Case 4:13-cv-00533-CDL Document 83-6 Filed 10/24/16 Page 7 of 17 7 Name (Specialty) Address and Telephone Number Approx Dates/Years of Visits Reason/Procedure Performed Randolph Hospital 364 White Oak Street Asheboro, NC 27203 336/625-5151 Mentor ObTape mesh implant and partial explant Dr. Lemmons (OB/GYN) Fayettville Street Ashboro, NC Dr. Brooks (OB/GYN) Ashboro, NC Plaintiff reserves the right to supplement as she continues to be treated for injuries sustained as a result of the implant/explant of her mesh sling. 2. 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. Plaintiff reserves the right to supplement as she continues to be treated for injuries sustained as a result of the implant/explant of her mesh sling. Name of Pharmacy/Supplier Address and Telephone Number of Pharmacy/Supplier Approx. Dates/Years You Used Pharmacy/Supplier V. MEDICAL BACKGROUND 1. Current Height: 5’0” 2. Please state your weight at the following times: (a) Current: 119 lbs. (b) Time of implant: unknown (c) Time of explant/excision surgery (if any): unknown 3. Smoking History (a) Have you ever smoked cigarettes? Yes  No  State amount smoked: 1 pack per day for 50 years, during the years 1966 to Present. 4. Other Conditions Case 4:13-cv-00533-CDL Document 83-6 Filed 10/24/16 Page 8 of 17 8 (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: To the best of Plaintiff’s memory and knowledge, Plaintiff states: Condition Experienced or Diagnosed Yes No Don’t Know 1. Abnormal pap smear  2. Autoimmune disease  3. Bacterial vaginosis  4. Cervical cancer  5. Cystocele  6. Diabetes  7. Endometriosis  8. Gestational diabetes  9. Hormone deficiency  10. Hypertension/high blood pressure  11. Interstitial cystitis  12. Obesity  13. Ovarian cancer  14. Pelvic inflammatory disease  15. Polycystic ovary disease  16. Rectocele  17. Stress urinary incontinence  18. Thyroid disorder  19. Toxic shock syndrome  20. Urethral erosion  21. Urinary tract infection  22. Urge incontinence  23. Uterine cancer  24. Vaginal erosion  25. Vaginal infection  26. Venereal disease  27. Yeast infection  (b) For each condition for which you answered Yes in the previous chart, please provide the information requested below: Case 4:13-cv-00533-CDL Document 83-6 Filed 10/24/16 Page 9 of 17 9 Condition You Experienced Approximate Date of Onset Name, Address and Telephone Number of Treating Physician (if any) Treatment Received VI. MEDICATIONS 1. List all of the medications (prescription and over the counter) you currently take. To the best of Plaintiff’s memory and knowledge, Plaintiff states: Medication Dose/Frequency/Dates of Use Physician Ordering Pharmacy Dispensing Purpose Metropol Blood Pressure 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  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 VII. IMPLANT AND EXCISION/REMOVAL 1. Describe the condition for which the ObTape was implanted: Stress Urinary Incontinence (SUI) 2. Before the implantation of the ObTape, did you receive non-surgical treatment for your stress urinary incontinence? Yes  No  (a) State the period during which you received non-surgical treatment: Dates unknown - before mesh implant Case 4:13-cv-00533-CDL Document 83-6 Filed 10/24/16 Page 10 of 17 10 (b) State the nature of the non-surgical treatment (e.g., physical therapy, medication, injections): Exercise (c) State the name and address of all doctors or health care providers involved in your non-surgical treatment: Dr. Daljit Caberwal Asheboro Urology Clinic 283 White Oak Street Asheboro, NC 27203 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  No  (a) If yes, identify each document/source of information. (b) When did you read the document/receive the information? (c) How did you obtain the document or information? (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  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  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: VIII. INJURIES & DAMAGES 1. Are you claiming any physical injuries or illness as a result of the ObTape? Yes  No  If yes, please describe in detail the following: Case 4:13-cv-00533-CDL Document 83-6 Filed 10/24/16 Page 11 of 17 11 (a) The physical injuries or illness claimed and when the symptoms began: Following Plaintiff’s ObTape implant, she sustained injuries and has suffered from numerous complaints including, but not limited to, recurrent vaginal discharge with odor, pain, infection, urinary problems and bleeding. In addition, these issues have caused mental anguish, pain and suffering. (b) Are those injuries or illnesses continuing? Yes  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) All of above issues and complaints Dr. Daljit Caberwal 283 White Oak Street Asheboro, NC 27203 336/625-3997 2. Have you ever been hospitalized as a result of any of these conditions? Yes  No  If yes, please provide the following information: (a) Approximate date(s) of hospital admission: 12/26/2007 (b) Approximate date(s) of discharge: unknown (c) Hospital names(s) and address(es): Randolph Hospital 364 White Oak Street Asheboro, NC 27203 3. Do you claim any psychological or psychiatric injury (other than garden variety emotional distress) as a consequence of having the ObTape? Yes  No  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  Case 4:13-cv-00533-CDL Document 83-6 Filed 10/24/16 Page 12 of 17 12 1. 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: 2. 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  No  6. Is your spouse claiming physical injury from the ObTape? Yes  No  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) Case 4:13-cv-00533-CDL Document 83-6 Filed 10/24/16 Page 13 of 17 13 IX. MEDICAL AND OUT-OF-POCKET EXPENSES 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: Plaintiff does not have exact calculation regarding economic damages or out of pocket expenses at this time and reserves the right to supplement concurrent with ongoing treatment. 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? Yes  No  Don’t Know  If yes, identify which expenses, the amount reimbursed and the date reimbursed. X. FACT WITNESSES 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: Jerry Peace 873 W. Main Street Franklinville, NC 27248 Relationship to you: Husband Case 4:13-cv-00533-CDL Document 83-6 Filed 10/24/16 Page 14 of 17 14 XI. DOCUMENT 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. REQUEST NO. 1: All medical records (including, but no limited to, all charts, hospital records, consent forms, treating physician records, photographs, videotapes/DVDs, drawings, Xrays, 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. See medical and pharmacy records produced to date. Plaintiff reserves the right to supplement as she continues to be treated for injuries sustained as a result of the implant/explant of her mesh sling. REQUEST 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. See billing records produced to date. Plaintiff reserves the right to supplement as she continues to be treated for injuries sustained as a result of the implant/explant of her mesh sling. REQUEST 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. See billing records produced to date. Plaintiff reserves the right to supplement as she continues to be treated for injuries sustained as a result of the implant/explant of her mesh sling. REQUEST NO. 4: All photographs and videos of plaintiff’s surgery and all photographs and videos of plaintiff which show plaintiff’s condition since the date of the original implantation. Plaintiff has no responsive documents currently in her possession. Case 4:13-cv-00533-CDL Document 83-6 Filed 10/24/16 Page 15 of 17 15 REQUEST 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. Plaintiff has no responsive documents currently in her possession. XII. AUTHORIZATIONS Complete and sign the Authorization attached as Exhibit A. See attached medical authorization. Case 4:13-cv-00533-CDL Document 83-6 Filed 10/24/16 Page 16 of 17 Case 4:13-cv-00533-CDL Document 83-6 Filed 10/24/16 Page 17 of 17 EXHIBIT D Case 4:13-cv-00533-CDL Document 83-7 Filed 10/24/16 Page 1 of 4 In re Mentor Corp. ObTape Transobturator Sling Products..., Not Reported in... 2015 WL 4644626 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2015 WL 4644626 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. | Nos. 4:08-MD-2004 (CDL), 4:12-cv-102 (S.PUROL). | Signed Aug. 4, 2015. ORDER CLAY D. LAND, Chief 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. Plaintiff Sandra Purol was implanted with ObTape, and she asserts that she suffered injuries caused by ObTape. Mrs. Purol brought this product liability action against Mentor, contending that ObTape had design and/or manufacturing defects that proximately caused her injuries. Mrs. Purol also asserts that Mentor did not adequately warn her physicians about the risks associated with ObTape. Mrs. Purol's husband Joseph brought a loss of consortium claim. Mentor contends that the Purols' claims are barred by the applicable statute of limitations. For the reasons set forth below, the Court agrees, and Mentor's Motion for Summary Judgment (ECF No. 63 in 4:12-cv-102) is granted. SUMMARY JUDGMENT STANDARD Summary judgment may be granted only “if the movant shows 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 Viewed in the light most favorable to the Purols, the record reveals the following. The Purols are residents of Michigan, and all of Mrs. Purol's medical treatment related to this action occurred in Michigan. Mrs. Purol experienced symptoms of stress urinary incontinence and urinary urgency. She visited Dr. Richard Bates for an evaluation of her symptoms. Dr. Bates implanted Mrs. Purol with ObTape on November 4, 2004. After the implant surgery, Mrs. Purol developed dyspareunia (difficult or painful sexual intercourse), vaginal discharge, and spotting. She went to see Dr. Bates's nurse practitioner, Bonnie Bartz, in May of 2005. Ms. Bartz conducted a physical exam and observed a vaginal erosion of the ObTape. Ms. Bartz told Mrs. Purol that there was a hole in her vaginal wall, that Ms. Bartz could feel the ObTape coming through the hole, that Mrs. Purol had an infection, and that the ObTape needed to be removed. S. Purol Dep. 67:11-68:24, ECF No. 68-19. Mrs. Purol did not ask Ms. Bartz why she had a hole in her vaginal wall or why she had an infection. Id. at 69:9- 18. Dr. Bates surgically excised all of Mrs. Purol's ObTape on May 18, 2005. Mrs. Purol did not point to any evidence that she suffered injuries due to ObTape after the sling was removed in 2005. The Purols filed this action in the United States District Court for the Central District of California on March 8, 2012. See generally Compl., ECF No. 1 in 4:12-cv-102. The action was later transferred to this Court as part of a multidistrict litigation proceeding regarding ObTape. DISCUSSION *2 The Court must apply California's choice-of-law rules to determine which state law controls. In re Nucorp Energy Case 4:13-cv-00533-CDL Document 83-7 Filed 10/24/16 Page 2 of 4 In re Mentor Corp. ObTape Transobturator Sling Products..., Not Reported in... 2015 WL 4644626 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 Sec. Litig., 772 F.2d 1486, 1492 (9th Cir.1985) (noting that MDL transferee court must apply transferor court's choice-of-law rules); accord Anschutz Corp. v. Merrill Lynch & Co., 690 F.3d 98, 112 (2d Cir.2012) (same). Under California law, if a cause of action that arose in another state is time-barred in that state, then it is also time-barred in California. Cal.Civ.Proc.Code § 361 (“When a cause of action has arisen in another State ... and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this State[.]”). Thus, the first question for the Court is where this action arose. Mentor asserts that the action arose in Michigan, so California's choice-of-law rules require application of Michigan law. The Purols argue that their cause of action arose in California, so California's statute of limitations applies. The Purols' argument is based on their assertion that a number of Mentor's employees who made key decisions about the sale of ObTape were based in California. But the case the Purols cite in support of their argument that their cause of action arose in California concluded that a product liability action for a defective medical device arose where the device was purchased, implanted, and allegedly caused injuries. Vestal v. Shiley, Inc., No. SACV96-1205- GLT(EEX), 1997 WL 910373, at *2 (C.D.Cal. Nov. 17, 1997) (finding that the plaintiff's claims arose in North Carolina, “where she purchased the heart valves, where the valves were implanted, and where the alleged injury occurred”); accord Cossman v. DaimlerChrysler Corp., 133 Cal.Rptr.2d 376, 381-82 (Cal.Ct.App.2003) (finding that the plaintiff's personal injury claims arose in Indiana, where she was exposed to asbestos and diagnosed with mesothelioma); Giest v. Sequoia Ventures, Inc., 99 Cal.Rptr.2d 476, 478 (Cal.Ct.App.2000) (finding that the plaintiffs' product liability claims arose in Montana, where the decedent was exposed to asbestos). The Court thus finds that the Purols' cause of action arose in Michigan, where Mrs. Purol was implanted with ObTape and suffered injuries. Michigan's statute of limitations thus applies. Under Michigan law, the statute of limitations for a product liability action is three years. Mich. Comp. Laws Ann. § 600.5805(13). The statute of limitations begins to run “at the time the wrong upon which the claim is based was done regardless of the time when damage results.” Id. § 600.5827. The “wrong” is done on the date the plaintiff is harmed by the defendant's actions. Connelly v. Paul Ruddy's Equip. Repair & Serv. Co., 200 N.W.2d 70, 72-73 (Mich.1972). It is undisputed that Mrs. Purol experienced complications with her ObTape in 2005 and had the sling removed. During that same timeframe, she experienced painful sexual intercourse that led to a decline in her intimate relationship with Mr. Purol. *3 The Purols argue that their claims should be tolled because Mentor fraudulently concealed ObTape's design defects. Michigan does not have a general discovery rule that tolls the statute of limitations in product liability cases. Bearup v. Gen. Motors Corp., Docket Nos. 272654, 272666, 2009 WL 249456, at *5-*6 (Mich.Ct.App. Feb. 3, 2009) (per curiam) (citing Trentadue v. Buckler Lawn Sprinkler, 738 N.W.2d 664, 684 (Mich.2007)). But if a defendant “fraudulently conceals the existence of the claim,” then the statute of limitations is tolled until the person “discovers, or should have discovered, the existence of the claim.” Mich. Comp. Laws Ann. § 600.5855. Thus, the Court must determine whether the Purols pointed to evidence that Mentor fraudulently concealed their claim. Under Michigan law, fraudulent concealment of a claim “means concealment of the fact that the plaintiff has a cause of action.” Tonegatto v. Budak, 316 N.W.2d 262, 266 (Mich.Ct.App.1982) (per curiam) (finding that fraudulent concealment statute did not toll medical malpractice claims because hospital's failure to inform the plaintiff of the risks of her operation did “not constitute fraudulent concealment of her malpractice claim”). The fraudulent concealment statute only applies when a defendant takes an affirmative act to hinder a plaintiff's investigation into the cause of her problem with a product. Ciborowski v. Pella Window & Door Co., No. 257091, 2005 WL 3478159, at *3-*4 (Mich.Ct.App. Dec. 20, 2005) (per curiam) (finding no fraudulent concealment where manufacturer told the plaintiffs that their window leaks were caused by faulty installation, not a defect in the product, and did not tell the plaintiffs that the window model had been designed to remedy a defect). Here, the Purols argue that because Mentor sold ObTape to Mrs. Purol's doctor and continued selling it until 2006 without disclosing certain complication rates that Mentor had allegedly discovered, the statute of limitations should be tolled due to fraudulent concealment. The Purols also contend that they could not reasonably Case 4:13-cv-00533-CDL Document 83-7 Filed 10/24/16 Page 3 of 4 In re Mentor Corp. ObTape Transobturator Sling Products..., Not Reported in... 2015 WL 4644626 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 discover the existence of their claims until 2012, when Mrs. Purol decided to read her medical records after seeing a television commercial related to vaginal mesh injuries. S. Purol Dep. 100:5-9. But the Purols knew in 2005-when Mrs. Purol experienced complications that required the removal of her ObTape-that ObTape may have caused their injuries. At that time, a person of common knowledge and experience in the Purols' position would have been on notice that their injuries may be related to ObTape, and they would have been able to begin an investigation to determine whether those injuries were caused by a problem with ObTape, a problem with the implantation surgery, or another problem. In fact, Mrs. Purol testified that “it came to” her when she read her medical records-which presumably would have been available to her in 2005 had she asked-that ObTape caused her injuries. Id. In sum, the Purols did not point to any evidence that Mentor took affirmative acts to prevent them from knowing of a potential connection between ObTape and their injuries, so Mich. Comp. Laws Ann. § 600.5855 does not apply to toll the statute of limitations. *4 For these reasons, the Court finds that no genuine fact dispute exists on when the Purols' claims accrued. Their claims accrued by May of 2005. They did not file their action within three years after their claims arose. Therefore, the Purols' claims are barred by Mich. Comp. Laws Ann. § 600.5805(13), and Mentor is entitled to summary judgment on their claims. IT IS SO ORDERED. All Citations Not Reported in F.Supp.3d, 2015 WL 4644626 End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 4:13-cv-00533-CDL Document 83-7 Filed 10/24/16 Page 4 of 4 EXHIBIT E Case 4:13-cv-00533-CDL Document 83-8 Filed 10/24/16 Page 1 of 5 In re Mentor Corp. ObTape Transobturator Sling Products..., Not Reported in... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2013 WL 123079 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. | Nos. 4:08-MD-2004 (CDL), 4:10-cv-5058. | Jan. 9, 2013. ORDER CLAY D. LAND, District Judge. *1 Defendant Mentor Worldwide LLC (“Mentor”) developed a suburethral sling product called ObTape Transobturator Tape (“ObTape”), which was used to treat women with stress urinary incontinence. Plaintiff Linda Liszka (“Liszka”) was implanted with ObTape, and she asserts that she suffered injuries caused by ObTape. Liszka brought this product liability action against Mentor, contending that ObTape had design and/or manufacturing defects that proximately caused her injuries. Liszka also asserts that Mentor did not adequately warn her physicians about the risks associated with ObTape. Mentor contends that Liszka's claims are barred by the applicable statutes of limitation. For the reasons set forth below, the Court agrees, and Mentor's Motion for Summary Judgment (ECF No. 74 in 4:10-cv- 5058) 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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 Viewed in the light most favorable to Liszka, the record reveals the following. Liszka is a resident of the State of New York, and all medical treatment related to Liszka's claims occurred in New York. Liszka visited Dr. Masood Naim on May 27, 2004 because she was experiencing loss of urine with coughing and laughing and an increase in urinary urgency. Def.'s Mot. for Summ. J. Ex. A, Naim Dep. 82:22-83:25, ECF No. 74-4 in 4:10-cv-5058. Dr. Naim implanted ObTape in Liszka on July 1, 2004. After the surgery, Liszka developed several infections. Because of pain, discomfort and discharge, Liszka went to see Dr. Cathy Berry in September 2005. Dr. Berry prescribed various treatments for Liszka between September 2005 and November 2005. Although Liszka's symptoms improved, the treatments did not eliminate her symptoms. Liszka continued to experience symptoms such as vaginal discharge, odor, and painful sexual intercourse. On October 5, 2006, Liszka visited Dr. Berry and reported that her partner was feeling scratched by something during intercourse. Dr. Berry examined Liszka and found a piece of exposed ObTape extruding from Liszka's vagina. Dr. Berry sent Liszka back to Dr. Naim, who informed Liszka on October 6, 2006 that her ObTape had eroded and that she would need surgery to excise it. Liszka believed as of October 6, 2006 that the ObTape was not working properly, that the ObTape had not properly integrated into her body, and that something was wrong with the ObTape. *2 On October 19, 2006, Liszka had surgery to remove the ObTape. Dr. Naim informed Liszka that her ObTape was not functioning properly and that infection had developed that was associated with the ObTape. After the excision surgery, Liszka's symptoms improved. Her infection cleared, and the degree of discharge and odor Case 4:13-cv-00533-CDL Document 83-8 Filed 10/24/16 Page 2 of 5 In re Mentor Corp. ObTape Transobturator Sling Products..., Not Reported in... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 improved dramatically. Def.'s Mot. for Summ. J. Ex. B, Liszka Dep. 225:18-226:8, ECF No. 74-5 in 4:10-cv- 5058. Liszka attributed the improvement in her symptoms to the removal of the ObTape. In 2008, Liszka conducted internet research to learn about cures for vaginal discharge and odor. In October or December 2008, Liszka found an internet advertisement regarding complications from vaginal sling products. Id. at 252:18-253:8. Based on the ad, Liszka decided to talk with an attorney regarding her experience with ObTape. Liszka filed this action in the United States District Court for the Central District of California on July 29, 2010. See generally Compl., ECF No. 1 in 4:10-cv-5058. The action was later transferred to this Court as part of a multidistrict litigation proceeding regarding ObTape. In her Complaint, Liszka asserts the following claims against Mentor: failure to warn, Compl. ¶¶ 68-79; design defect, id. ¶¶ 80-89; manufacturing defect, id. ¶¶ 90- 95; negligence, id. ¶¶ 96-102; intentional infliction of emotional distress, id. ¶¶ 103-106; breach of warranty, id. ¶¶ 107-114; negligent misrepresentation, id. ¶¶ 115-125; and failure to recall, id. ¶¶ 126-130. DISCUSSION The Judicial Panel on Multidistrict Litigation transferred Liszka's diversity action from the United States District Court for the Central District of California to this Court for pretrial proceedings. Therefore, the Court must apply the choice-of-law rules of California, the transferor forum, to determine which state law controls. Anschutz Corp. v. Merrill Lynch & Co., 690 F.3d 98, 112 (2d Cir.2012); accord Murphy v. F.D.I.C., 208 F.3d 959, 965 (11th Cir.2000) (“Our system contemplates differences between different states' laws; thus a multidistrict judge asked to apply divergent state positions on a point of law would face a coherent, if sometimes difficult, task.”) (internal quotation marks omitted); In re Nucorp Energy Sec. Litig., 772 F.2d 1486, 1492 (9th Cir.1985) (noting that court must apply transferor court's choice-of-law rules). In this action, Liszka and Mentor agree that under California's choice-of-law rules, New York's statutes of limitation apply to Liszka's claims. Under California law, if a cause of action that arose in another state is time-barred in that state, then it is also time-barred in California. Cal.Civ.Proc.Code § 361 (“When a cause of action has arisen in another State ... and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this State[.]”). It is undisputed that Liszka is a citizen of New York and that she received all medical treatment relevant to this action in New York. Therefore, as Liszka acknowledges, her cause of action arose in New York, and New York's statutes of limitation apply. *3 Liszka does not dispute that the majority of her claims are personal injury claims and that New York's three-year statute of limitations applies to those claims. 1 See N.Y. C.P.L.R. § 214(5) (stating that “action to recover damages for a personal injury” must be commenced within three years). A personal injury claim based on the latent effects of exposure to a toxic substance accrues on “the date of discovery of the injury by the plaintiff or ... the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier.” N.Y. C.P.L.R. § 214-c(2). Liszka urges the Court to conclude that she did not reasonably discover her injury until (1) she was aware of her bodily symptoms, (2) she was aware the bodily symptoms were caused by ObTape, and (3) she became aware that ObTape might be defective. Thus, Liszka argues that the three-year statute of limitations did not begin to run until October 2008, when she “began to learn of the dangers associated with ObTape” based on her internet research. Pl.'s Mem. in Supp. of Her Opp'n to Def.'s Mot. for Summ. J. 14, ECF No. 75. Liszka's interpretation of New York law, however, is wrong. Under New York law, an injury is discovered and the time for bringing an action under the statute begins to run “when the injured party discovers the primary condition on which the claim is based.” Wetherill v. Eli Lilly & Co. (In re N.Y. Cnty. DES Litig. .), 89 N.Y.2d 506, 655 N.Y.S.2d 862, 678 N.E.2d 474, 475 (N.Y.1997). In other words, “discovery of the injury” is complete when the injured party discerns her bodily symptoms. Such discovery for statute of limitations purposes is not delayed until she discovers that exposure to a foreign substance may have caused those symptoms. 2 Id. at 476-77. The New York Court of Appeals has specifically rejected the argument Liszka makes herethat the statute of limitations does not begin to run until the injured party has a reasonable belief that there is a causal connection between Case 4:13-cv-00533-CDL Document 83-8 Filed 10/24/16 Page 3 of 5 In re Mentor Corp. ObTape Transobturator Sling Products..., Not Reported in... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 a defective product and her symptoms. Id. (rejecting, for example, Braune v. Abbott Labs., 895 F.Supp. 530, 553 (E.D.N.Y.1995), which concluded that the New York Court of Appeals would construe § 214-c(2) to require a “plaintiff's awareness of both her medical problem and its cause by some human intervention”). 3 Here, Liszka knew of her bodily symptomspain, discomfort, discharge, and erosion of the ObTape through her vaginaby October 2006 at the latest. Therefore, under Wetherill, Liszka discovered her injury in October 2006. See Wetherill, 655 N.Y.S.2d 862, 678 N.E.2d at 475 (stating that a cause of action under N.Y. C.P.L.R. § 214-c(2) begins to run “when the injured party discovers the primary condition on which the claim is based”). Moreover, even if Liszka's causes of action did not accrue until she learned of the connection between ObTape and her symptoms, her claims would still be time-barred. Liszka knew in October 2006 that ObTape was the likely cause of her bodily symptoms. The only information Liszka claims she did not know in October 2006 was that ObTape might be defective. Her ignorance of the alleged defectiveness of ObTape, however, does not rescue her claim. Although a New York statute, N.Y. C.P.L.R. § 214-c(4), extends the filing deadline for one year after an injured party discovers the cause of her injury under certain circumstances, it does not contemplate that the statute of limitations is extended until the injured party herself can connect the injury to a specific cause. Rather, the statute of limitations is extended only until “the time when information is sufficient for the technical, medical or scientific community to ascertain the cause of an injury” not until a “reasonable layperson or lawyer” could ascertain that a viable cause of action exists. Giordano v. Mkt. Am., Inc., 15 N.Y.3d 590, 915 N.Y.S.2d 884, 941 N.E.2d 727, 733 (N.Y.2010). Moreover, the statute itself requires Liszka “to allege and prove that technical, scientific or medical knowledge and information sufficient to ascertain the cause of [her] injury had not been discovered, identified or determined prior to the expiration of the period within which the action or claim would have been authorized.” N.Y. C.P.L.R. § 214-c(4). Liszka has not pointed the Court to any such evidence. For all of these reasons, the Court concludes that Liszka discovered her injury in October 2006, so she was required to file her action by October 2009. Liszka did not file her action until July 2010, and her claims are therefore time-barred. 4 *4 Although the Court has no reservations about the correctness of its interpretation of New York law, it does observe that even if it accepted Liszka's argument that her discovery of her injury was not complete until she learned that ObTape might be defective, Liszka's claims are still time-barred under New York's discovery rule because an action must be brought within one year of the discovery of the injury's cause. N.Y. C.P.L.R. § 214-c(4). Liszka asserts that she learned that ObTape might be defective in October 2008, so her deadline for filing this action, even under the most liberal interpretation of § 214-c(4), was October 2009. Finally, the Court rejects Liszka's equitable estoppel argument as meritless. While a defendant may be estopped from pleading a statute of limitations defense if the defendant took specific actions to keep a plaintiff from timely bringing suit, e.g., Robare v. Fortune Brands, Inc., 39 A.D.3d 1045, 833 N.Y.S.2d 753, 755-56 (N.Y.App.Div.2007), Liszka acknowledges that she was aware in October 2008well before the statute of limitations expiredthat ObTape might be defective and that Mentor had not disclosed such information to her. CONCLUSION As discussed above, Liszka's claims are barred by the applicable statutes of limitation. Therefore, Mentor's Motion for Summary Judgment against Liszka (ECF No. 74 in 4:10-cv-5058) is granted. Since today's Order terminates this individual action, the Clerk is directed to notify the Clerk of the transferor Court and the Clerk for the Panel on Multidistrict Litigation by forwarding to them a copy of this Order. IT IS SO ORDERED. All Citations Not Reported in F.Supp.2d, 2013 WL 123079 Footnotes Case 4:13-cv-00533-CDL Document 83-8 Filed 10/24/16 Page 4 of 5 In re Mentor Corp. ObTape Transobturator Sling Products..., Not Reported in... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 1 Liszka also asserts a claim for intentional infliction of emotional distress. Under New York law, the statute of limitations for such a claim is one year. Goldner v. Sullivan, Gough, Skipworth, Summers & Smith, 105 A.D.2d 1149, 482 N.Y.S.2d 606, 608 (N.Y.App.Div.1984) (citing N.Y. C.P.L.R. 215(3)). A cause of action for intentional infliction of emotional distress “accrues on the date of injury.” Wilson v. Erra, 94 A.D.3d 756, 942 N.Y.S.2d 127, 129 (N.Y.App.Div.2012). Liszka does not seriously dispute that she became emotionally upset when she experienced difficulties with ObTape in 2006. Liszka asserts that she “began to learn of the dangers associated with ObTape on or around the first part of October 2008” and that the statute of limitations should begin running from that date. Pl.'s Mem. in Supp. of Her Opp'n to Def.'s Mot. for Summ. J. 14, ECF No. 75. Whether Liszka's intentional infliction of emotional distress claim accrued in 2006 or 2008, however, the claim is time-barred because Liska did not file this action until July 29, 2010. In addition to her product liability claims and her intentional infliction of emotional distress claim, Liszka also brought a claim for breach of warranty. For purposes of this Order, the Court presumes that the statute of limitations for a breach of warranty claim based on personal injury damages is the statute of limitations for personal injury claims, and neither party has suggested otherwise. 2 If, however, scientific knowledge has not yet revealed that a toxic substance might have caused the injured party's symptoms, then the injured party is given an extension of time to commence the action. Wetherill, 655 N.Y.S.2d 862, 678 N.E.2d at 477; accord N.Y. C.P.L.R. § 214-c(4) (providing that where the discovery of the cause of an injury occurs less than five years after discovery of the injury, an action may be commenced within one year of the discovery of the injury's cause). 3 New York's rule is more stringent than the rule adopted in some other states. See, e.g., In re Mentor Corp. ObTape Transobturator Sling Prods. Liab. Litig., 711 F.Supp.2d 1348, 1379-80 (M.D.Ga.2010) (applying Georgia law). 4 The Court notes that Liszka filed a previous action regarding ObTape in California state court in August 2009. Liszka voluntarily dismissed that action without prejudice. Liszka has not argued that her present action is saved by a renewal statute or a similar mechanism for extending the statute of limitations. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 4:13-cv-00533-CDL Document 83-8 Filed 10/24/16 Page 5 of 5 EXHIBIT F Case 4:13-cv-00533-CDL Document 83-9 Filed 10/24/16 Page 1 of 5 Vestal v. Shiley Inc., Not Reported in F.Supp. (1997) 1997 WL 910373 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 1997 WL 910373 Only the Westlaw citation is currently available. United States District Court, C.D. California. Nancy Sue VESTAL, Plaintiff, v. SHILEY INC., et al., Defendants. No. SACV96-1205-GLT(EEX). | Nov. 17, 1997. Attorneys and Law Firms Richard J Radcliffe, Capretz & Radcliffe, Newport Beach, CA, for Vestal, Nancy Sue. Aton Arbisser, Kaye Scholer Fierman Hays & Handler, Los Angeles, CA, for Howmedica Corp. John R Lister, Palmieri Tyler Wiener Wilhelm & Waldron, Irvine, CA, for Pfizer Inc. ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR A CONTINUANCE-LEAVE TO AMEND TAYLOR, J. *1 Defendants' Motion for Summary Judgement is GRANTED. Plainitff's Motion for a Continuance is DENIED. 30 days leave to amend is granted. Summary judgment is proper if “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the moving party makes this showing, the burden then shifts to the non-moving party to “designate specific facts showing that there is a genuine issue for trial.” Id. at 324. If the non-moving party fails, “the moving party is entitled to a judgment as a matter of law.” Celotex, 477 U.S. at 323. Here, defendants contend this claim is barred because, as a matter of law, the complaint is untimely. To begin, this court must determine whether to apply California's statute of limitations or North Carolina's statute of repose. To make this determination this court may apply either California's borrowing statute or its choice of law analysis. Under either examination, the North Carolina statue of repose applies to plaintiff's claim. I. California's Borrowing Statute Under Cal.Code of Civ.Proc. § 361, California's borrowing statute: When a cause of action has arisen in another State, or in a foreign country, and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this State, except in favor of one who has been a citizen of this State, and who has held the cause of action from the time it accrued. C.C.P. § 361. Here, defendants contend plaintiff's claims arose in North Carolina when, on September 9, 1985, doctors surgically implanted the BSCC valves in plaintiff's heart. Defendants reason the action arose then because the North Carolina product liability statute begins to run on the “date of initial purchase for use or consumption.” N.C.Gen.Stat. § 1-50(6). The initial purchase or consumption date starts the clock because North Carolina uses a statute of repose, not a statute of limitations. A statute of repose runs from the time of purchase or consumption, regardless of later discovery or injury. See United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (stating statutes of repose afford plaintiffs what the legislature deems a reasonable time to present their claims, then they protect defendants); School Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1259 (9th Cir.1993) (finding a statute of repose runs from the date Case 4:13-cv-00533-CDL Document 83-9 Filed 10/24/16 Page 2 of 5 Vestal v. Shiley Inc., Not Reported in F.Supp. (1997) 1997 WL 910373 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 of substantial completion or abandonment without regard to the occurrence of any actual loss or injury). 1 *2 In opposition, plaintiff contends her claim technically never “arose” in North Carolina. In this case, the only injury alleged is from the surgical replacement of plaintiff's BSCC heart valves on August 2, 1996. This injury did not occur until after the period of repose had run. Therefore, plaintiff concludes, her action never arose in North Carolina because she could not have maintained a suit there. However, plaintiff's interpretation of where a claims “arose” is contrary to the language and intent of California's borrowing statute. Under plaintiff's interpretation, California could never borrow a foreign state's statute of repose when it barred a cause of action. In actuality, the California borrowing statute expressly applies whenever “by the laws” of another state, whatever those laws may be, an action is untimely. Additionally, plaintiff's interpretation would frustrate the purpose of the borrowing statute. California adopted C.C.P. § 361 “to restrict th[e] practice” of nonresidents suing in this State when their claims would be time-barred under the laws of their home states. 3 Witkin, Cal. Procedure, Actions, § 106 at 171 (4th ed.1996). A more sensible interpretation is a claim “arises” where the events underlying the cause of action occurred. This interpretation comports with the definition: “A cause of action or suit arises, so as to start running of limitation ... at the time when, and place where, the act is unlawfully omitted or committed.” Black's Law Dictionary 20 (6th ed.1990). Here, plaintiff's claims arose where she purchased the heart valves, where the valves were implanted, and where the alleged injury occurred- in North Carolina. Since plaintiff's claims arose in North Carolina, California's borrowing statute directs this court to examine whether this claim is timely in North Carolina. The North Carolina product liability statute of repose, N.C.Gen.Stat. § 1-50(6), provides: No action for the recovery of damages for personal injury, death or damage to property based upon or arising out of any alleged defect or any failure in relation to a product shall be brought more than six years after the date of initial purchase for use or consumption. Here, “the date of initial purchase” is September 9, 1985, when doctors surgically implanted the BSCC valves. Plaintiff did not file this claim until December 10, 1996- more than ten years later. Thus, plaintiff's claims appear untimely under the North Carolina statute of repose. II. Choice of Law Even if this court were to find C.C.P. § 361 did not apply, choice of law analysis requires application of the North Carolina statute of repose. In diversity actions, federal courts must apply the choice of law rules of the state in which the court sits. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Therefore, this Court must apply California's choice of law rules. California has adopted the “governmental interests” analysis. Hurtado v. Superior Court, 11 Cal.3d 574, 579- 80, 114 Cal.Rptr. 106, 522 P.2d 666 (1974). California's choice of law analysis involves a three-step process. See Bernard v. Harrah's Club, 16 Cal.3d 313, 319, 128 Cal.Rptr. 215, 546 P.2d 719 (1976). In the first step of the analysis, the court must determine whether the substantive laws of California and the foreign jurisdiction differ. Id. Second, if the laws do differ, then the court must determine what interests, if any, the competing jurisdictions have in the application of their respective laws. Id. A “true conflict” only exists when both jurisdictions have a policy interest in the application of thier respective laws. Bernard, 16 Cal.3d at 320, 128 Cal.Rptr. 215, 546 P.2d 719. Under the third step, the “comparative impairment” test, a court must determine which jurisdiction's interest would be most impaired if its policies were subordinated. Id. *3 Turning to the first Bernhard question, this court must examine the applicable rules of North Carolina and California. As discussed above, North Carolina has a product liability statute of repose, N.C.Gen.Stat. § 1- 50(6), which bars claims brought after six-years. North Carolina has found this statute of repose to be substantive. See Bolick v. American Barmag Corp., 306 N.C. 364, 293 S.E.2d 415, 419 (N.C.1982). Conversely, it appears Case 4:13-cv-00533-CDL Document 83-9 Filed 10/24/16 Page 3 of 5 Vestal v. Shiley Inc., Not Reported in F.Supp. (1997) 1997 WL 910373 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 California law would not bar plaintiff's claims. Thus, there appears to be a true conflict. Next, this court must determine what interest each state has in having its laws applied to the particular case. The Supreme Court of North Carolina has explained, the statute of repose's purpose is to shield manufacturers from the “open-ended liability created by allowing claims for an indefinite period of time after the product was first sold and distributed.” Tetterton v. Long Mfg. Co., 314 N.C. 44, 332 S.E.2d 67, 73 (N.C.1985). The California Supreme Court has found, in suits by nonresidents involving BSCC valves, California's only interest is in deterring unlawful conduct by California companies. Stangvik v. Shiley Inc., 54 Cal.3d 744, 759, 1 Cal.Rptr.2d 556, 819 P.2d 14 (1991). Third, since there appears to be a “true” conflict, this court must determine which jurisdiction's interest would be most impaired if its policies were subordinated. Here, application of California law would impair North Carolina's effort to protect manufacturers who sell goods within its borders. Practically, North Carolina's statute of repose would no longer protect California manufactureres. However, application of North Carolina's law would have little detrimental effect on California. In Stangvik, the California Supreme court stated suits by California residents adequately serve to deter California companies from unlawful practices. Stangvik, 54 Cal.3d at 759, 1 Cal.Rptr.2d 556, 819 P.2d 14. Deterrence would only be “negligibl[y]” advanced if claims by nonresidents of California proceeded in this forum. Id. Additionally, California has voiced little interest in applying its law to compensate nonresidents for alleged injuries sustained out-of-state. See Paulo v. Bepex Corp., 792 F.2d 894, 895-96 (9th Cir.1986). For all the foregoing reasons, under California choice of law analysis, the North Carolina statue of repose applies to plaintiff's claim. Accordingly, plaintiff's claim appears untimely. III. Equitable Estoppel Generally, the North Carolina product liability statute of repose bars claims brought “more than six years after the date of initial purchase for use or consumption.” N.C.Gen.Stat. § 1-50(6). There is, however, an equitable exception to the statute. In Bryant v. Adams, 116 N.C.App. 448, 448 S.E.2d 832 (1994), the court found: The essential elements of estoppel are (1) conduct on the part of the party sought to be estopped which amounts to a false representation or concealment of material facts; (2) the intention that such conduct will be acted on by the other party; and (3) knowledge, actual or constructive, of the real facts. The party asserting the defense must have (1) a lack of knowledge and the means of knowledge as to the real facts in question; and (2) relied upon the conduct of the party sought to be estopped to his prejudice. *4 Id. at 460, 448 S.E.2d 832. Plaintiff contends, once discovery is completed, she will fall within the equitable exception. Since crucial depositions have yet to be completed, plaintiff has moved for a continuance under Fed.R.Civ.P. 56(f). Under Rule 56(f), a district court may continue a motion for summary judgment to allow additional discovery by a party opposing summary judgment. Fed.R.Civ.P. 56(f). However, the party filing a Rule 56(f) motion must show how additional discovery would be expected to assist him in opposing summary judgment. See California Union Ins. v. American Diversified Savings Bank, 914 F.2d 1271, 1278 (9th Cir.1990). Here, however, plaintiff as a matter of law does not qualify under the equitable tolling doctrine. Equitable estoppel only applies when a defendant knowingly prevented or induced the plaintiff from bringing the action earlier. Bryant, 116 N.C.App. at 460, 448 S.E.2d 832. The only injury alleged in this lawsuit is from the surgical replacement of plaintiff's BSCC heart valves on August 2, 1996. Plaintiff has not alleged defendants induced her not to file a lawsuit based on the August 1996 injury earlier than she did. Nor has plaintiff alleged defendants induced her not to file a lawsuit based on any pre-1996 injury. In fact, in 1993 defendants settled an earlier claim brought by plaintiff. Arbisser Dec. ¶ 2. As a matter of law, equitable estoppel is not available in this case and additional discovery under 56(f) will not change this. Case 4:13-cv-00533-CDL Document 83-9 Filed 10/24/16 Page 4 of 5 Vestal v. Shiley Inc., Not Reported in F.Supp. (1997) 1997 WL 910373 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 Since plaintiff as a matter of law does not qualify under the equitable estoppel exception, plaintiff's request for continuance under Fed.R.Civ.P. 56(f) is DENIED. Under North Carolina's statute of repose, this action is barred as untimely and defendants' motion for summary judgement is GRANTED. 30 days leave to amend is granted. All Citations Not Reported in F.Supp., 1997 WL 910373 Footnotes 1 The common law “discovery rule” serves to delay the start of a statute of limitations until the plaintiff knows both the injury has occurred and it may have been wrongfully caused. See Jolly v. Eli Lilly & Co., 44 Cal.3d 1103, 245 Cal.Rptr. 658, 751 P.2d 923 (1988). A statute of repose places an absolute outer time limit on when an action can be brought regardless of later discovery or injury. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 4:13-cv-00533-CDL Document 83-9 Filed 10/24/16 Page 5 of 5 EXHIBIT G Case 4:13-cv-00533-CDL Document 83-10 Filed 10/24/16 Page 1 of 5 Lackey v. DePuy Orthopaedics, Inc., Not Reported in F.Supp.2d (2011) 2011 WL 2791264 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2011 WL 2791264 Only the Westlaw citation is currently available. United States District Court, W.D. North Carolina, Statesville Division. Randy D. LACKEY, Plaintiff, v. DePUY ORTHOPAEDICS, INC., Defendant. No. 5:10-cv-00030-RLV-DSC. | July 14, 2011. Attorneys and Law Firms Angela Newell Gray, Gray Newell, LLP, Greensboro, NC, for Plaintiff. John E. Grupp, Parker Poe Adams & Bernstein L.L.P., Charlotte, NC, for Defendant. ORDER RICHARD L. VOORHESS, District Judge. *1 THIS MATTER is before the Court on Defendant DePuy Orthopaedics, Inc.'s Motion to Dismiss (Doc. # 2) and accompanying Memorandum in Support (Doc. # 3), filed March 16, 2010; Plaintiff's Memorandum in opposition to Defendant DePuy's Motion to Dismiss (Doc. # 7), filed April 4, 2010; and Defendant's Reply Memorandum in Support of its Motion to Dismiss (Doc. # 8), filed April 14, 2010. This matter is now ripe for disposition. I. Background Plaintiff Randy D. Lackey (“Lackey”) is a citizen of the state of North Carolina. 1 Compl. ¶ 1. Defendant DePuy Orthopaedics, Inc. (“DePuy”) is a corporation engaged in the business of manufacturing, designing, assembling, inspecting, and distributing prosthetic hip components. Id. ¶ 5. On January 19, 1998, Lackey underwent hip replacement surgery. Id. ¶ 2. During this surgery, Lackey received a hip prosthetic manufactured and distributed by DePuy. 2 Subsequent to the hip replacement surgery, in approximately January 2009, the Plaintiff experienced a painful abrupt popping sensation in his left hip. Plaintiff began having discomfort and constant and severe pain in his left hip. Id. ¶ 7. In June 2009, Plaintiff underwent a left total hip revision, allegedly to address the damage caused by the defective hip prosthetic. Id. ¶ 9. Plaintiff contends that the design of the prosthetic device, the selection of the materials from which it was fabricated, the manufacturing procedures by which it was made, and the inspection procedures attendant on the manufacturer Defendant, were solely within the control of the Defendant and were the cause of the failure of the device which resulted in Plaintiff's injuries. Id. ¶ 10. Plaintiff's Complaint asserts claims for: (1) negligent infliction of injury, (2) breach of express warranty, and (3) breach of implied warranty. II. Standard of Review When deciding a motion to dismiss, the plaintiff must allege facts in the Complaint that “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint will not survive a Motion to Dismiss where it contains “naked assertion[s] devoid of further factual enhancement.” Id. at 557. Instead, a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ “ Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citations omitted). A “claim has facial plausibility when the plaintiff pleads sufficient factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1949. When ruling on a motion to dismiss, “a judge must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). However, a court “need not accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Eastern Shore Mkt.'s Inc. v. J.D. Assoc.'s LLP, 213 F.3d 175, 180 (4th Cir.2000). III. Discussion A. Plaintiff's Claims for Negligence and Breach of Warranty Sound in Product Liability *2 As a threshold issue, this Court must determine the nature of the Plaintiff's claims. Plaintiff's Complaint asserts the following claims: (1) negligent infliction of Case 4:13-cv-00533-CDL Document 83-10 Filed 10/24/16 Page 2 of 5 Lackey v. DePuy Orthopaedics, Inc., Not Reported in F.Supp.2d (2011) 2011 WL 2791264 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 injury; (2) breach of implied warranty; and (3) breach of express warranty. Defendant contends that Plaintiff's claims are multiple ways of asserting a product liability action. A “ ‘[p]roduct liability action’ includes any action brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formulation, development of standards, preparation, processing, assembly, testing, listing, certifying, warning, instructing, marketing, selling, advertising, packaging, or labeling of any product.” Couick v. Wyeth, Inc., 691 F.Supp.2d 643, 645 (W.D . N.C.2010) (citing N.C. Gen.Stat. § 99B-1(3)). A thorough review of Plaintiff's Complaint reveals that Plaintiff's claims all stem from the purchase of an allegedly defective hip prosthetic designed and manufactured by DePuy. Plaintiff alleges personal injury and damages caused by the purportedly defective hip prosthetic. Artful pleading does not allow Plaintiff to transform product liability claims into claims sounding in negligence and breach of warranty. See Couick v. Wyeth, Inc., No. 3:09-cv-00210-RJC-DSC, 2010 WL 785952, at *2 (W.D.N.C. March 8, 2010) (holding that each of Plaintiff's 11 claims for relief, ranging from negligence to unfair and deceptive trade practices, was grounded in the injuries Plaintiff allegedly suffered from the inadequate warnings associated with defendants' drug and, therefore, constituted a single product liability action). Plaintiff's claims clearly fall within North Carolina's definition of a product liability action. B. Plaintiff's Claims are Barred by the Statute of Repose Defendant contends that this Court should dismiss Plaintiff's claims because they are barred by the product liability statute of repose. Plaintiff argues that the applicable statute of repose is N .C. Gen.Stat. § 1-46.1, which would provide Plaintiff with twelve years from the initial purchase date to bring a claim for an injury resulting from the defective prosthetic hip. Defendant argues that the applicable statute of repose is N.C. Gen.Stat. § 1-50(a) (6), which was in effect at the time Plaintiff purchased the allegedly defective product. This Court agrees with Defendant. All product liability claims, regardless of their nature, are subject to a statute of repose. Nat'l Property Investors, VIII v. Shell Oil Co., 950 F.Supp. 710, 713 (E.D.N.C.1996); Colony Hill Condominium I Ass'n v. Colony Co., 320 S.E.2d 273 (N.C.Ct.App.1984), review denied, 325 S.E.2d 485 (1985) (noting that the North Carolina legislature intended that the product liability statute of repose cover “the multiplicity of claims that can arise out of a defective product”). Compliance with the statute of repose is a condition precedent to a product liability action. See Winslow v. Dedmon, 615 S.E.2d 41, 44 (N.C.Ct.App.2005) (noting that unlike a statute of limitations which affects a plaintiff's remedy and not his right to recover, the statute of repose establishes a time period in which suit must be brought in order for the cause of action to be recognized). “If the action is not brought within the specified time period, the plaintiff literally has no cause of action.” Id. at 615 S.E.2d at 44 (emphasis in original). A statute of repose bars a right of action even before injury has occurred, in instances when the injury occurs outside of the prescribed time period. Bollick v. Am. Barmag Corp ., 293 S.E.2d 415, 418 (N.C.1982). The purpose of the statute of repose is to “limit the manufacturer's liability at some definite point in time.” Chicopee, Inc. v. Sims Metal Works, Inc. 391 S.E .2d 211, 214 (N.C.Ct.App.1990) (emphasis in original). *3 Plaintiff purchased the allegedly defective hip in January 1998. The applicable statute of repose for a product liability claim for the period of October 1, 1979, through October 1, 2009, was N.C. Gen.Stat. § 1-50(a)(6), which provides that: No action for the recovery of damages for personal injury, death or damage to property based upon or arising out of any alleged defect or any failure in relation to a product shall be brought more than six years after the date of initial purchase for use or consumption. N.C. Gen.Stat. § 1-50(a)(6). This statute functions as an “unyielding and absolute barrier” to claims brought more than six years after the product at issue was purchased. Nat'l Property Investors, VIII v. Shell Oil, 950 F.Supp. 710, 713 (1996). The statute “is intended to be a substantive definition of rights which sets a fixed limit after the time of the product's manufacture beyond which the seller will not be held liable.” Id. (quoting Bryant v. Adams, 448 S.E.2d 832, 836 (N.C.Ct.App.1994), review denied, 454 S.E.2d 647 (1995). “This statute gives the defendant a ‘vested right not to be sued’ if the plaintiff fails to file within the six-year period.” Id. As such, in order for Plaintiff to Case 4:13-cv-00533-CDL Document 83-10 Filed 10/24/16 Page 3 of 5 Lackey v. DePuy Orthopaedics, Inc., Not Reported in F.Supp.2d (2011) 2011 WL 2791264 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 have a cognizable product liability claim against DePuy, Plaintiff must have asserted the claim within six years of the initial purchase of the allegedly defective prosthetic hip device. Plaintiff failed to bring any claim against Defendant within the time period established by the statute of repose. Put another way, Plaintiff's claims were barred and extinguished by the statute of repose on January 19, 2004. It is undisputed that Plaintiff filed this action approximately 12 years after Plaintiff's initial use and consumption of the subject prosthetic hip device. Accordingly, the statute of repose is an insurmountable bar to any recovery by Plaintiff. C.N.C. Gen.Stat. § 1-46.1 Does Not Apply to This Case Plaintiff argues that the applicable statute of repose in the instant case is N.C. Gen.Stat. § 1-46.1, 3 which provides that: No action for the recovery of damages for personal injury, death, or damage to property based upon or arising out of any alleged defect or any failure in relation to a product shall be brought more than 12 years after the date of initial purchase for use or consumption. N.C. Gen.Stat. § 1-46.1. Plaintiff argues that because Plaintiff purchased the prosthetic hip device on January 19, 1998 and then filed the present action on January 14, 2010, it is apparent from the face of the Complaint that Plaintiff did bring this action within the time limit established by N.C. Gen.Stat. § 1-46.1. Plaintiff's argument is misplaced. The thrust of Plaintiff's argument is that when the North Carolina General Assembly modified the statute of repose for product liability claims in 2009 it revived Plaintiff's claim. Plaintiff's argument misses the mark and has been specifically rejected by the North Carolina Supreme Court and the North Carolina Court of Appeals. McCarter v. Stone & Webster Eng'g Corp., 104 S.E.2d 858 (N.C.1958); Colony Hill Condominium I Ass'n v. Colony Co., 320 S.E.2d 273 (N.C.Ct.App.1984), review denied, 325 S.E.2d 485 (1985). In Colony Hill, the North Carolina Court of Appeals held that the real property statute of repose in effect at the time the plaintiff purchased a condominium applied despite the fact that a subsequently-enacted law extended the statute of repose. Colony Hill, 320 S.E.2d at 275-76. The Court of Appeals went on to reject the plaintiff's argument that the subsequently-enacted statute of repose revived Plaintiff's claims. Id. Similarly, in McCarter, the North Carolina Supreme Court held that a subsequent statute extending the time for filing a claim after a worker's compensation accident did not revive the plaintiff's claim. Plaintiff fails to present any argument addressing why the newly-enacted statute of repose in the instant case would revive a previously extinguished claim. The precedent set forth in McCarter and Colony Hill provides further support for the dismissal of Plaintiff's claims under N.C. Gen.Stat. § 1-50(a)(6). *4 The analysis articulated in McCarter and Colony Hill is also consistent with the legislative intent and purpose behind the statute of repose. As the North Carolina Supreme Court has explained, statutes of repose are distinguishable from ordinary statutes of limitation in that they begin to run “at a time unrelated to the traditional accrual of the cause of action.” Bollick v. Am. Barmag Corp., 293 S.E.2d 415, 418 (N.C.1982). Unlike statutes of limitation which are procedural in nature, statutes of repose are substantive, deriving their substantive quality from the fact that they will bar a right of action even before injury has occurred if the injury occurs subsequent to the prescribed time period. Id. The intent of the legislature in enacting the statute of repose was “to limit the manufacturer's liability at some definite point in time.” Chicopee, Inc. v. Sims Metal Works, Inc., 391 S.E.2d 211, 214 (1990) (emphasis in original) (citing Tetterton v. Long Mfg. Co., 332 S.E.2d 67, 74 (1985)). The legislature wanted to avoid subjecting manufacturers to “open-ended liability created by allowing claims for an indefinite period of time after the product was first sold and distributed.” Id. (emphasis in original). Because the statute of repose is a condition precedent, it establishes a time period in which suit must be brought for a cause of action to be recognized -if the condition precedent is not met, the court does not acquire jurisdiction. Nello L. Teer Co. v. N.C. Dep't of Transp., 625 S.E.2d 135, 137 (N.C.Ct.App.2006). In sum, N.C. Gen.Stat. § 1-50(a)(6) set the fixed time limit at six years from the time of the product's sale or delivery beyond which DePuy cannot be liable for a product sold in 1998. A statute enacted after expiration of that six-year period, such as N.C. Gen.Stat. § 1-46.1, cannot change that outcome. Accordingly, Plaintiff's Complaint must be dismissed. IV. CONCLUSION THEREFORE, IT IS HEREBY ORDERED that: Case 4:13-cv-00533-CDL Document 83-10 Filed 10/24/16 Page 4 of 5 Lackey v. DePuy Orthopaedics, Inc., Not Reported in F.Supp.2d (2011) 2011 WL 2791264 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 (1) Defendant's Motion to Dismiss (Doc. # 2) is GRANTED. All of Plaintiff's claims are therefore dismissed and the case is closed. All Citations Not Reported in F.Supp.2d, 2011 WL 2791264 Footnotes 1 All facts are presented in the light most favorable to Plaintiff, the party opposing the Motion to Dismiss. 2 Lackey originally filed this suit in the North Carolina General Court of Justice, Superior Court Division, against Depuy and Biomet 3i, LLC. Lackey subsequently dismissed Biomet 3i, LLC without amending his Complaint. The Court assumes that Plaintiff's allegations in the Complaint originally designated as the responsibility of both Defendants can apply solely to Defendant DePuy. 3 In 2009, N.C. Gen.Stat. § 1-50(a)(6) was repealed by Session Law 2009-420, effective October 1, 2009. Session Law 2009-420 applies only to causes of action that accrue on or after October 1, 2009. See Act of Aug. 5, 2009, S.L.2009-420 § 3 (2009) (clarifying and reforming the statutes of limitation and repose in product liability actions). Even when viewing the facts in the light most favorable to Plaintiff, Plaintiff's cause of action accrued on or about January 2009. As a result, N.C. Gen.Stat. § 1-46.1., by its terms, does not apply to the instant case. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 4:13-cv-00533-CDL Document 83-10 Filed 10/24/16 Page 5 of 5 EXHIBIT H Case 4:13-cv-00533-CDL Document 83-11 Filed 10/24/16 Page 1 of 4 In re Mentor Corp., Slip Copy (2016) 2016 WL 4385846 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2016 WL 4385846 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 No. 4:13-cv-301 (Jeffcoat-Canter) | Signed 08/15/2016 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. Plaintiff Susan Jeffcoat-Canter was implanted with ObTape and asserts that she suffered injuries caused by ObTape. Jeffcoat-Canter brought a product liability action against Mentor, contending that ObTape had design and/or manufacturing defects that proximately caused her injuries. Jeffcoat-Canter also asserts that Mentor did not adequately warn her physicians about the risks associated with ObTape. Mentor seeks summary judgment on all of Jeffcoat- Canter's claims, contending that the claims are barred by North Carolina's statute of repose. For the reasons set forth below, the Court agrees, and Mentor's summary judgment motion (ECF No. 38 in 4:13-cv-301) 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. FACTUAL BACKGROUND Jeffcoat-Canter developed symptoms of stress urinary incontinence and sought treatment from Dr. Donald Pittaway. Dr. Pittaway implanted Jeffcoat-Canter with ObTape on February 17, 2005. In November 2005, Jeffcoat-Canter reported to Dr. Pittaway that she was experiencing pain during intercourse and a rigid sensation in her vaginal area. In December 2005, while Dr. Pittaway was performing a hysterectomy on Jeffcoat-Canter, Dr. Pittaway found that her ObTape had extruded, and he excised the exposed portion of her ObTape. Then, in August 2006, Dr. Pittaway found an abscess on Jeffcoat- Canter's right side; he attributed it to ObTape, and he treated the abscess. In November 2006, Jeffcoat-Canter reported to Dr. Pittaway that a piece of tape was coming out of her vagina; Dr. Pittaway excised the exposed piece of mesh. In 2012, Jeffcoat-Canter suffered another abscess that Dr. Pittaway attributed to ObTape, and Jeffcoat- Canter asked Dr. Pittaway who manufactured the sling. Jeffcoat-Canter asserts claims for negligence, strict liability (design defect, manufacturing defect, and failure to warn), breach of express warranty, breach of implied warranty, fraudulent misrepresentation, fraudulent concealment, and negligent misrepresentation. DISCUSSION Jeffcoat-Canter filed her action in this Court on July 15, 2013 under the Court's direct filing order. The parties agreed that for direct-filed cases, the “Court will apply the choice of law rules of the state where the plaintiff resides at the time of the filing of the complaint.” Order Regarding Direct Filing § II(E), ECF No. 446 in 4:08-md-2004. Jeffcoat-Canter lives in North Carolina, and all of her ObTape-related treatment took place in North Carolina. The parties agree that North Carolina law applies to Jeffcoat-Canter's claims. ase 4:13-cv-00533-CDL Document 83-11 Filed 10/24/16 Page 2 of 4 In re Mentor Corp., Slip Copy (2016) 2016 WL 4385846 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 *2 As the Court previously observed, “[u]ntil 2009, North Carolina law provided that no personal injury claims ‘based upon or arising out of any alleged defect or any failure in relation to a product shall be brought more than six years after the date of initial purchase for use or consumption.’ ” Wallace v. Mentor, Case No. 4:12-cv-355, 2016 WL 873854, at *2 (M.D. Ga. Mar. 4, 2016) (quoting N.C. Gen. Stat. § 1-50(a)(6) (1995)). In 2009, the statute of repose was modified, but Jeffcoat-Canter does not argue that the 2009 amendment applies to her claims. Rather, she argues that the North Carolina courts would not apply the statute of repose to her claims. In support of her argument, Jeffcoat-Canter points to a line of cases recognizing a “disease exception” to the North Carolina statute of repose. The Fourth Circuit concluded that the North Carolina Supreme Court “does not consider disease to be included within a statute of repose directed at personal injury claims unless the Legislature expressly expands the language to include it.” Stahle v. CTS Corp., 817 F.3d 96, 102 (4th Cir. 2016) (quoting Hyer v. Pittsburgh Corning Corp., 790 F.2d 30, 34 (4th Cir. 1986)). The Fourth Circuit noted that the North Carolina legislature “ha[s] long been cognizant of the difference between diseases on the one hand and other kinds of injury on the other from the standpoint of identifying legally relevant time periods.” 1 Id. at 104 (alteration in original) (quoting Bullard v. Dalkon Shield Claimants Trust, 74 F.3d 531, 534 (4th Cir. 1996)). The Fourth Circuit further emphasized that while the current North Carolina statute of repose applies to latent injury claims, North Carolina courts do not consider disease to be a latent injury. 2 Id. So the key question is whether this is a “disease” case. It is not. The Fourth Circuit has found that cases fall within the “disease exception” if (1) the plaintiff's injury is a disease, (2) it is difficult to establish the exact time of injury (when the disease process started) and (3) it is difficult to establish that the disease was caused by the product. Bullard, 74 F.3d 531, 535 (4th Cir. 1996). The Fourth Circuit has suggested that the “disease exception” does not apply in situations where it is possible to identify a single point in time when the plaintiff was first injured. Hyer, 790 F.2d at 33 (noting that exposure to a toxic substance does not result in injury until the toxic substance causes a disease; the injury is not identifiable until the disease is diagnosed). In Stahle, the Fourth Circuit found that the plaintiff's leukemia, which was allegedly caused by exposure to toxic solvents in his water, fell within the disease exception. Stahle, 817 F.3d at 98-99. The Fourth Circuit also concluded that pelvic inflammatory disease allegedly caused by an intrauterine device fell within the disease exception. Bullard, 74 F.3d at 535 (4th Cir. 1996). And the Fourth Circuit determined that asbestosis caused by asbestos exposure fell within the disease exception. Hyer, 790 F.2d at 34. *3 In all of these cases, the plaintiff developed a disease after being exposed to a product. Jeffcoat- Canter argues that Bullard is indistinguishable from her case because Bullard also involved an implantable medical device. In Bullard, the plaintiff developed pelvic inflammatory disease, which was ultimately attributed to her intrauterine device. But Jeffcoat-Canter did not point to any evidence that she was diagnosed with a disease caused by ObTape. Rather, she experienced symptoms when her medical device eroded through her bodily tissues. And while pelvic inflammatory disease can occur due to a variety of reasons other than an intrauterine device, the types of complications Jeffcoat- Canter suffered-like erosion of her ObTape-were directly attributable to ObTape when they happened. Thus, the rationale behind the disease exception does not apply here. Under § 1-50(a)(6), the pre-2009 statute of repose that applies here, no personal injury claims “based upon or arising out of any alleged defect or any failure in relation to a product shall be brought more than six years after the date of initial purchase for use or consumption.” N.C. Gen. Stat. § 1-50(a)(6) (1995). Therefore, a personal injury cause of action based on a product defect must be brought within six years of the date when the product was initially purchased for use or consumption. See Robinson v. Bridgestone/Firestone N. Am. Tire, L.L.C., 703 S.E.2d 883, 887 (N.C. Ct. App. 2011) (finding that to bring a claim related to an allegedly defective tire, the plaintiffs had to prove that the “tire was initially purchased within six years of the filing of the complaint”). Here, Jeffcoat-Canter's ObTape was initially purchased for use on February 17, 2005 at the latest, when the ObTape was implanted into her body. Jeffcoat-Canter did not file her Complaint until more than eight years later, on July 15, 2013. Her claims are barred by the North Carolina statute of repose, and Mentor is entitled to summary judgment on all of her claims. 3 ase 4:13-cv-00533-CDL Document 83-11 Filed 10/24/16 Page 3 of 4 In re Mentor Corp., Slip Copy (2016) 2016 WL 4385846 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 CONCLUSION As discussed above, Mentor's summary judgment motion (ECF No. 38 in 4:13-cv-301) is granted. IT IS SO ORDERED, this 15th day of August, 2016. All Citations Slip Copy, 2016 WL 4385846 Footnotes 1 In 2009, the North Carolina legislature modified the statute of repose for product liability actions. The legislature noted that nothing in the new law “is intended to change existing law relating to product liability actions based upon disease.” 2009 North Carolina Laws S.L. 2009-420 (S.B. 882). 2 Stahle was not a product liability case; it involved a manufacturer's dumping of toxic chemicals into local streams. In Stahle, the Fourth Circuit analyzed the personal injury statute of limitations, which also contains a ten-year statute of repose. Stahle, 817 F.3d at 102 (discussing N.C. Gen. Stat. § 1-52(16)). The Fourth Circuit relied on the “disease exception” product liability cases that had been decided under pre-2009 version of § 1-50(6), the product liability statute of repose that applies here. 3 Even if the statute of repose did not bar Jeffcoat-Canter's claims, her claims are likely time-barred under North Carolina's statute of limitations. Under North Carolina law, actions “for personal injury” must be brought within three years of accrual; personal injury actions do not accrue “until bodily harm to the claimant ... becomes apparent or ought reasonably to have become apparent to the claimant”. N.C. Gen. Stat. § 1-52(16). Jeffcoat-Canter pointed to evidence that her doctor diagnosed her with an abscess that he attributed to ObTape in August 2006. Jeffcoat-Canter also pointed to evidence that she noticed a piece of tape coming out of her vagina in November 2006 and that Dr. Pittaway excised the exposed portion. Thus, by November 2006 at the latest, Jeffcoat-Canter knew or should have known that at least some of her injuries were related to ObTape. She did not bring this action until more than six years later. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. ase 4:13-cv-00533-CDL Document 83-11 Filed 10/24/16 Page 4 of 4 EXHIBIT I Case 4:13-cv-00533-CDL Document 83-12 Filed 10/24/16 Page 1 of 8 Case 4:12-cv-00335-CDL Document 46 Filed 03/04/16 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION IN RE MENTOR CORP. OBTAPE MDL Docket No. 2004 4:08-MD-2004 (CDL) TRANSOBTURATOR SLING PRODUCTS Case Nos. LIABILITY LITIGATION 4:12-cv-335 (Wallace) ORDER Defendant Mentor Worldwide LLC developed a suburethral sling product called ObTape Transobturator Tape, which was used to treat women with stress urinary incontinence. Plaintiff Gale Wallace was implanted with ObTape and asserts that she suffered injuries caused by ObTape. Mrs. Wallace brought a product liability action against Mentor, contending that ObTape had design and/or manufacturing defects that proximately caused her injuries. Mrs. Wallace also contends that Mentor did not adequately warn her physicians about the risks associated with ObTape. Mrs. Wallace's husband asserts a loss of consortium claim. Mentor seeks summary judgment on the Wallaces' claims, contending that they are barred under North Carolina's statute of repose. The Court agrees, and Mentor's summary judgment motion (ECF No. 39 in 4:12-cv-335) 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 Case 4:13-cv-00533-CDL Document 83-12 Filed 10/24/16 Page 2 of 8 Case 4:12-cv-00335-CDL Document 46 Filed 03/04/16 Page 2 of 7 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 Dr. Thomas Barefoot implanted Mrs. Wallace with ObTape on March 24, 2005 to treat her stress urinary incontinence. Within three or four months of the surgery, Mrs. Wallace began experiencing dyspareunia, which she attributed to ObTape. She contends that she continues to suffer ObTape complications. The Wallaces are North Carolina residents, and all of Mrs. Wallace's ObTape-related treatment took place in North Carolina. The Wallaces filed their action in this Court pursuant to the Court's direct filing order on December 13, 2012, asserting claims for negligence, strict liability - design defect, strict liability - manufacturing defect, strict liability - failure to warn, breach of implied warranties, breach of express warranties, fraudulent misrepresentation, fraudulent 2 Case 4:13-cv-00533-CDL Document 83-12 Filed 10/24/16 Page 3 of 8 Case 4:12-cv-00335-CDL Document 46 Filed 03/04/16 Page 3 of 7 concealment, and negligent misrepresentation. Mr. Wallace asserts a loss of consortium claim. DISCUSSION The Wallaces filed their action in this Court under the Court's direct filing order. The parties agreed that for direct-filed cases, the "Court will apply the choice of law rules of the state where the plaintiff resides at the time of the filing of the complaint." Order Regarding Direct Filing § II(E), ECF No. 446 in 4:08-md-2004. The Wallaces are North Carolina residents, and Mrs. Wallace's ObTape-related treatment took place in North Carolina. The parties agree that North Carolina law applies to the Wallace's claims. Mentor contends that the Mrs. Wallace's claims are barred by North Carolina's statute of repose and that Mr. Wallace's loss of consortium claim fails because Mrs. Wallace's claim fails. Until 2009, North Carolina law provided that no personal injury claims "based upon or arising out of any alleged defect or any failure in relation to a product shall be brought more than six years after the date of initial purchase for use or consumption." N.C. Gen. Stat. § 1-50(a)(6) (1995). On October 1, 2009, a new statute of repose for product liability claims became effective: no personal injury claims "based upon or arising out of any alleged defect or any failure in relation to a product shall be brought more than 12 years after the date of 3 Case 4:13-cv-00533-CDL Document 83-12 Filed 10/24/16 Page 4 of 8 Case 4:12-cv-00335-CDL Document 46 Filed 03/04/16 Page 4 of 7 initial purchase for use or consumption." N.C. Gen. Stat. § 1- 46.1(1). The new rule became effective on October 1, 2009 and applies only "to causes of action that accrue on or after that date." 2009 N.C. Sess. Laws 2009-420 § 3. North Carolina courts apply the statute of repose in effect at the time of the initial product sale or delivery. Robinson v. Bridgestone/Firestone N. Am. Tire, LLC, 703 S.E.2d 883, 886- 87 (N.C. Ct. App. 2011 (applying statute of repose in effect when the allegedly defective tires were initially purchased in 1995 or 1996 and declining to apply N.C. Gen. Stat. § 1-46.1(1) (2009)); see Lackey v. DePuy Orthopaedics, Inc., No. 5:10-CV- 00030-RLV, 2011 WL 2791264, at *3 (W.D.N.C. July 14, 2011) (applying statute of repose in effect when allegedly defective replacement hip was purchased in 1998); see also Colony Hill Condo. I Ass'n v. Colony Co., 320 S.E.2d 273, 276 (N.C. Ct. App. 1984) (applying real property statute of repose in effect when the plaintiff purchased his condominium); McCrater v. Stone Webster Eng'g Corp., 104 S.E.2d 858, 860 (N.C. 1958) (applying worker's compensation statute of limitations in effect on the date of the plaintiff's accident); cf. Black v. Littlejohn, 325 S.E.2d 469, 474-75 (N.C. 1985) ("Unlike an ordinary statute of limitations which begins running upon accrual of the.claim, the period contained in the statute of repose begins when a specific event occurs, regardless of whether a cause of action has Case 4:13-cv-00533-CDL Document 83-12 Filed 10/24/16 Page 5 of 8 Case 4:12-cv-00335-CDL Document 46 Filed 03/04/16 Page 5 of 7 accrued or whether any injury has resulted.") (citations omitted). Therefore, the 1995 statute of repose applies here. Mrs. Wallace nonetheless argues that § 1-50(a)(6) does not apply to her claims, citing Wilder v. Amatex Corp., 336 S.E.2d 66 (N.C. 1985). In Wilder, the North Carolina Supreme Court considered N.C. Gen. Stat. § 1-15(b), which was North Carolina's statute of limitations for certain claims until it was repealed in 1979. The statute contained a ten-year statute of repose "from the last act of the defendant giving rise to the claim for relief." Id. at 69 (quoting N.C. Gen. Stat. § 1-15(b) (Interim Supp. 1976) (repealed 1979)). The Wilder court found that § 1- 15(b) did not apply to the plaintiff's personal injury claim related to the disease of asbestosis and that a different statute of limitations (without a statute of repose) applied to the plaintiff's claims. Id. at 73. And the Wilder court found that the plaintiff's claims did not accrue until he was diagnosed with asbestosis. Id. Based on Wilder, the Fourth Circuit predicted that the North Carolina Supreme Court would hold that § 1-50(6) did not apply to "claims arising from disease." Hyer v. Pittsburgh Corning Corp., 790 F.2d 30, 33-34 (4th Cir. 1986). But the Fourth Circuit suggested that its rationale was limited to diseases that "develop over long periods of time after multiple exposures to offending substances which are thought to be causative agents," where it "is Case 4:13-cv-00533-CDL Document 83-12 Filed 10/24/16 Page 6 of 8 Case 4:12-cv-00335-CDL Document 46 Filed 03/04/16 Page 6 of 7 impossible to identify any particular exposure as the 'first injury.'" Id. at 33. Mrs. Wallace's claim is not a claim arising from disease that developed over many years after multiple exposures to a toxic substance; it is a claim arising from complications 'she contends were caused by a medical device that was implanted in her body. Wilder simply does not apply. Under § 1-50(a)(6), the 1995 statute of repose, no personal injury claims "based upon or arising out of any alleged defect or any failure in relation to a product shall be brought more than six years after the date of initial purchase for use or consumption." N.C. Gen. Stat. § 1-50(a)(6) (1995). Therefore, a personal injury cause of action based on a product defect must be brought within six years of the date when the product was initially purchased for use or consumption. Robinson, 703 S.E.2d at 887 (finding that to bring a claim related to an allegedly defective tire, the plaintiffs had to prove that the "tire was initially purchased within six years of the filing of the complaint"); see also Bryant v. Don Galloway Homes, Inc., 556 S.E.2d 597, 600 (N.C. Ct. App. 2001) (noting that a statute of repose begins to run when the statutory triggering event occurs, "regardless of whether or not there has been an injury"); cf. Black, 325 S.E.2d at 475 (noting that "the repose serves as an unyielding and absolute barrier that prevents a plaintiff's right of action even before his cause of action may Case 4:13-cv-00533-CDL Document 83-12 Filed 10/24/16 Page 7 of 8 Case 4:12-cv-00335-CDL Document 46 Filed 03/04/16 Page 7 of 7 accrue"). Here, it is undisputed that Mrs. Wallace's ObTape was initially purchased for use on March 24, 2005 at the latest, when the ObTape was implanted into her body. Mrs. Wallace did not file her Complaint until more than seven years later, on December 13, 2012. Her claims are barred by the North Carolina statute of repose, and Mentor is entitled to summary judgment on all of her claims. Mr. Wallace's derivative loss of consortium claim is likewise barred. See King v. Cape Fear Mem'l Hosp., Inc., 385 S.E.2d 812, 814 (N.C. Ct. App. 1989) (affirming motion to dismiss loss of consortium claim where underlying claim was time-barred). CONCLUSION As discussed above, Mentor's summary judgment motion (ECF No. 39 in 4:12-cv-335) is granted. IT IS SO ORDERED, this 4th day of March, 2016. s/Clay D. Land CLAY D. LAND CHIEF U.S. DISTRICT COURT JUDGE MIDDLE DISTRICT OF GEORGIA 7 Case 4:13-cv-00533-CDL Document 83-12 Filed 10/24/16 Page 8 of 8 EXHIBIT J Case 4:13-cv-00533-CDL Document 83-13 Filed 10/24/16 Page 1 of 7 Case 4:13-cv-00267-CDL Document 41 Filed 12/23/15 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION IN RE MENTOR CORP. OBTAPE MDL Docket No. 2004 4:08-MD-2004 (CDL) TRANSOBTURATOR SLING PRODUCTS Case No. LIABILITY LITIGATION 4:13-cv-267 (Duarte) ORDER Defendant Mentor Worldwide LLC developed a suburethral sling product called ObTape Transobturator Tape, which was used to treat women with stress urinary incontinence. Plaintiff Matilde Duarte was implanted with ObTape and asserts that she suffered injuries caused by ObTape. Duarte brought a product liability action against Mentor, contending that ObTape had design and/or manufacturing defects that proximately caused her injuries. Duarte also asserts that Mentor did not adequately warn her physicians about the risks associated with ObTape. Duarte brought her claims under several theories. Mentor seeks summary judgment on all of her claims. For the reasons set forth below, Mentor's summary judgment motion (ECF No. 35 in 4:13-cv-67) is granted. SUMMARY JUDGMENT STANDARD Summary judgment may be granted only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Case 4:13-cv-00533-CDL Document 83-13 Filed 10/24/16 Page 2 of 7 Case 4:13-cv-00267-CDL Document 41 Filed 12/23/15 Page 2 of 6 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 Plaintiff Matilde Duarte consulted Dr. Ansley Lowder Hilton and Dr. Marcia Harris-Owens regarding her incontinence symptoms. Drs. Hilton and Harris-Owens implanted Duarte with ObTape on August 12, 2005. Duarte contends that she suffered complications due to ObTape. She also asserts that Dr. Felice James removed a portion of Duarte's ObTape in 2011 and told her that it was causing her problems. Duarte Dep. 7:10-9:16, ECF No. 37-3 in 4:13-cv-267. Duarte is a North Carolina resident whose ObTape-related treatment took place in North Carolina. Duarte filed her Complaint on July 11, 2013. She asserts claims for personal injury under the following theories: negligence, strict liability design defect, strict liability manufacturing defect, strict liability failure to warn, breach of implied warranties, 2 Case 4:13-cv-00533-CDL Document 83-13 Filed 10/24/16 Page 3 of 7 Case 4:13-cv-00267-CDL Document 41 Filed 12/23/15 Page 3 of 6 breach of express warranties, fraudulent misrepresentation, fraudulent concealment, and negligent misrepresentation. DISCUSSION Duarte filed her action in this Court under the Court's direct filing order. The parties agreed that for direct-filed cases, the "Court will apply the choice of law rules of the state where the plaintiff resides at the time of the filing of the complaint." Order Regarding Direct Filing § II(E), ECF No. 446 in 4:08-md-2004. Duarte is a North Carolina resident whose ObTape-related treatment took place in North Carolina, and the parties agree that North Carolina law applies to her claims. Mentor contends that Duarte's claims are barred under North Carolina's statute of repose. Until 2009, North Carolina law provided that no personal injury claims "based upon or arising out of any alleged defect or any failure in relation to a product shall be brought more than six years after the date of initial purchase for use or consumption." N.C. Gen. Stat. § 1- 50(a)(6) (1995). On October 1, 2009, a new statute of repose for product liability claims became effective: no personal injury claims "based upon or arising out of any alleged defect or any failure in relation to a product shall be brought more than 12 years after the date of initial purchase for use or consumption." N.C. Gen. Stat. § 1-46.1(1). The new rule became effective on October 1, 2009 and applies only "to causes of 3 Case 4:13-cv-00533-CDL Document 83-13 Filed 10/24/16 Page 4 of 7 Case 4:13-cv-00267-CDL Document 41 Filed 12/23/15 Page 4 of 6 action that accrue on or after that date." 2009 N.C. Sess. Laws 2009-420 § 3. North Carolina courts apply the statute of repose in effect at the time of the initial product sale or delivery. Robinson v. Bridgestone/Firestone N. Am. Tire, LLC, 703 S.E.2d 883, 886- 87 (N.C. Ct. App. 2011 (applying statute of repose in effect when the allegedly defective tires were initially purchased in 1995 or 1996 and declining to apply N.C. Gen. Stat. § 1-46.1(1) (2009)); see also Lackey v. DePuy Orthopaedics, Inc., No. 5:10- CV-00030-RLV, 2011 WL 2791264, at *3 (W.D.N.C. July 14, 2011) (applying statute of repose in effect when allegedly defective replacement hip was purchased in 1998); see also Colony Hill Condo. I Ass'n v. Colony Co., 320 S.E.2d 273, 276 (N.C. Ct. App. 1984) (applying real property statute of repose in effect when the plaintiff purchased his condominium); McCrater v. Stone & Webster Eng'g Corp., 104 S.E.2d 858, 860 (N.C. 1958) (applying worker's compensation statute of limitations in effect on the date of the plaintiff's accident); cf. Black v. Littlejohn, 325 S.E.2d 469, 474-75 (N.C. 1985) ("Unlike an ordinary statute of limitations which begins running upon accrual of the claim, the period contained in the statute of repose begins when a specific event occurs, regardless of whether a cause of action has accrued or whether any injury has resulted.") (citations omitted). Therefore, the 1995 statute of repose applies here. 4 Case 4:13-cv-00533-CDL Document 83-13 Filed 10/24/16 Page 5 of 7 Case 4:13-cv-00267-CDL Document 41 Filed 12/23/15 Page 5 of 6 Under the 1995 statute of repose, no personal injury claims "based upon or arising out of any alleged defect or any failure in relation to a product shall be brought more than six years after the date of initial purchase for use or consumption." N.C. Gen. Stat. § 1-50(a)(6) (1995). Therefore, a personal injury cause of action based on a product defect must be brought within six years of the date when the product was initially purchased for use or consumption. Robinson, 703 S.E.2d at 887 (finding that to bring a claim related to an allegedly defective tire, the plaintiffs had to prove that the "tire was initially purchased within six years of the filing of the complaint"); see also Bryant v. Don Galloway Homes, Inc., 556 S.E.2d 597, 600 (N.C. Ct. App. 2001) (noting that a statute of repose begins to run when the statutory triggering event occurs, "regardless of whether or not there has been an injury"). Here, it is undisputed that Duarte's ObTape was initially purchased for use on August 12, 2005 at the latest, when the ObTape was implanted into Duarte's body. Duarte did not file her Complaint until nearly eight years later, on July 11, 2013. Duarte argues, however, that the statute of repose is tolled by fraudulent concealment. In support of this argument, Duarte cited Minnesota law on fraudulent concealment. But North Carolina law applies here, and Duarte cited no authority that fraudulent concealment applies to toll the North Carolina Case 4:13-cv-00533-CDL Document 83-13 Filed 10/24/16 Page 6 of 7 Case 4:13-cv-00267-CDL Document 41 Filed 12/23/15 Page 6 of 6 statute of repose. North Carolina precedent establishes that "the repose serves as an unyielding and absolute barrier that prevents a plaintiff's right of action even before his cause of action may accrue." Black, 325 S.E.2d at 475. For all of these reasons, Duarte's claims are barred by the North Carolina statute of repose, and Mentor is entitled to summary judgment on all of her claims. CONCLUSION For the reasons set forth above, Mentor's summary judgment motions (ECF No. 35 in 4:13-cv-267) is granted. IT IS SO ORDERED, this 23rd day of December, 2015. s/Clay D. Land CLAY D. LAND CHIEF U.S. DISTRICT COURT JUDGE MIDDLE DISTRICT OF GEORGIA Case 4:13-cv-00533-CDL Document 83-13 Filed 10/24/16 Page 7 of 7 EXHIBIT K Case 4:13-cv-00533-CDL Document 83-14 Filed 10/24/16 Page 1 of 9 Case 4:11-cv-05078-CDL Document 47 Filed 02/11/13 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS. DIVISION IN RE MENTOR CORP. OBTAPE MDL Docket No. 2004 4:08-MD-2004 (CDL) TRANSOBTURATOR SLING PRODUCTS Case No. LIABILITY LITIGATION 4:11-cv-5078 (T. Broome) ORDER Defendant Mentor Worldwide LLC ("Mentor") developed a suburethral sling product called ObTape Transobturator Tape ("ObTape"), which was used to treat women with stress urinary incontinence. Plaintiff Teresa Broome ("Broome") was implanted with ObTape, and she asserts that she suffered injuries caused by ObTape. Broome brought this product liability action against Mentor, contending that ObTape had design and/or manufacturing defects that proximately caused her injuries. Broome also asserts that Mentor did not adequately warn her physicians about the risks associated with ObTape. Mentor contends that Broome's claims are barred by North Carolina's statute of repose. As discussed below, the Court agrees, and Mentor's Motion for Summary Judgment (ECF No. 37 in 4:11-cv-5078) 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. Case 4:13-cv-00533-CDL Document 83-14 Filed 10/24/16 Page 2 of 9 Case 4:11-cv-05078-CDL Document 47 Filed 02/11/13 Page 2 of 8 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 Viewed in the light most favorable to Broome, the record reveals the following. Unless otherwise noted, the facts are undisputed for purposes of Mentor's summary judgment motion. Broome is a resident of North Carolina, and all medical treatment related to her claims occurred in North Carolina. In 2004, Broome visited her physician, Dr. Carl Fisher, because she was experiencing incontinence and other problems. After discussing her options with. Dr. Fisher, Broome decided to undergo a transobturator sling procedure. Dr. Fisher implanted ObTape in Broome on November 17, 2004 and also performed several other surgical procedures. Shortly after the surgery, Broome was unable to void her bladder and had to be catheterized. Dr. Fisher told Broome that this problem occurred because the sling was too tight. In the 2 Case 4:13-cv-00533-CDL Document 83-14 Filed 10/24/16 Page 3 of 9 Case 4:11-cv-05078-CDL Document 47 Filed 02/11/13 Page 3 of 8 spring and summer of 2005, Broome began experiencing bleeding and vaginal discharge. Dr. Fisher examined Broome and found an erosion of the ObTape. On May 27, 2005, Dr. Fisher performed a procedure to release the ObTape and to remove some scar tissue. Broome continued to experience discharge, and Dr. Fisher referred Broome to Dr. G. Bernard Taylor. After examining Broome, Dr. Taylor performed surgery to excise a portion of Broome's ObTape on August 19, 2005. Following the excision surgery, Broome's incontinence returned, but she had no other symptoms that she attributed to ObTape. In 2006, about a year after the excision surgery, Broome did some internet research to determine if other women had similar complications following sling surgery. She also contacted an attorney to investigate a potential product liability action, and she called Dr. Fisher's office to find out what company manufactured her sling. Broome asserts that she did not suspect that ObTape might be defective until she saw a television ad regarding ObTape complications in 2011. Broome filed her Complaint in the United States District Court for the District of Rhode Island on October 20, 2011. See generally Compl., ECF No. 1 in 4:11-cv-5078. Broome brought claims for strict liability, negligence, breach of warranty, and failure to warn. 3 Case 4:13-cv-00533-CDL Document 83-14 Filed 10/24/16 Page 4 of 9 Case 4:11-cv-05078-CDL Document 47 Filed 02/11/13 Page 4 of 8 DISCUSSION The Judicial Panel on Multidistrict Litigation transferred Broome's diversity action from the United States District Court for the District of Rhode Island to this Court for pretrial proceedings. Therefore, the Court must apply the choice-of-law rules of Rhode Island, the transferor forum, to determine which state law controls. See In re Volkswagen & Audi Warranty Extension Litig., 692 F.3d 4, 17 (1st Cir. 2012) ("Where a suit is consolidated and transferred under [28 U.S.C.] § 1407, courts typically apply the choice of law rules of each of the transferor courts."); Toll Bros., Inc. v. Dryvit Sys., Inc., 432 F.3d 564, 568 n.4 (4th Cir. 2005) (noting that law of transferor court must be applied in multidistrict litigation case). In this action, Broome and Mentor agree that North Carolina law, including North Carolina's statute of repose, applies to Broome's claims. See Harodite Indus., Inc. v. Warren Elec. Corp., 24 A.3d 514, 534 (R.I. 2011) (noting that factors to be considered in choice of law analysis regarding applicable statute of limitations include the place where the injury occurred, the place where the conduct causing the injury occurred, and the residence of the parties). Broome lives in North Carolina, all relevant medical treatment occurred in North Carolina, and there is no evidence that Rhode Island has significant contacts to this action. Neither side has suggested Case 4:13-cv-00533-CDL Document 83-14 Filed 10/24/16 Page 5 of 9 Case 4:11-cv-05078-CDL Document 47 Filed 02/11/13 Page 5 of 8 that another state's law applies, and the Court will therefore analyze Broome's claims under North Carolina law. Until 2009, North Carolina law provided that no personal injury claims "based upon or arising out of any alleged defect or any failure in relation to a product shall be brought more than six years after the date of initial purchase for use or consumption." N.C. Gen. Stat. § 1-50(a) (6) (1995). On October 1, 2009, a new statute of repose for product liability claims became effective: no personal injury claims "based upon or arising out of any alleged defect or any failure in relation to a product shall be brought more than 12 years after the date of initial purchase for use or consumption." N.C. Gen. Stat. § 1- 46.1(1) The new rule became effective on October 1, 2009 and applies only "to causes of action that accrue on or after that date." 2009 N.C. Sess. Laws 2009-420 § 3; see also Robinson v. Bridgestone/Firestone N. Am. Tire, L.L.C., 703 S.E.2d 883, 886- 87 (N.C. Ct. App. 2011) (finding that § 1-46.1(1) does not apply to actions that accrued prior to October 1, 2009). The relevant question, therefore, is when Broome's cause of action accrued. For purposes of North Carolina's statute of limitations, a personal injury cause of action accrues when "bodily harm to the claimant . . becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs." N.C. Gen. Stat. § 1-52(16). In Soderlund v. Kuch, the primary 5 Case 4:13-cv-00533-CDL Document 83-14 Filed 10/24/16 Page 6 of 9 Case 4:11-cv-05078-CDL Document 47 Filed 02/11/13 Page 6 of 8 case on which Broome relies, the North Carolina Court of Appeals explained that a discovery statute, such as N.C. Gen. Stat. § 1- 52(16), "allows a statute of limitations to not begin to run until plaintiff discovers, or in the exercise of reasonable care, should have discovered, that he was injured as a result of defendant's wrongdoing." Soderland, 546 S.E.2d 632, 638 (N.C. Ct. App. 2001) (internal quotation marks omitted). "[A]s soon as the injury becomes apparent to the claimant or should reasonably become apparent, the cause of action is complete and the limitation period begins to run." Id. at 638 (alteration in original); cf. Pinczkowski v. Norfolk S. Ry. Co., 571 S.E.2d 4, 6 (N.C. Ct. App. 2002) ("[O]nce a plaintiff concludes he has an injury and believes the injury may have been caused by his employment, he is under an affirmative duty to investigate the potential cause of the injury."). In Soderland, the North Carolina Court of Appeals found that the plaintiff's emotional distress claims were time-barred because the plaintiff's claims accrued when he realized, at the time of the defendants' wrongful conduct, that the defendants' wrongful conduct caused his distress. Soderland, 546 S.E.2d at 639, 641. Here, it is undisputed that Broome was told in 2005 that she had suffered an erosion of the ObTape, and Broome cannot seriously dispute that she realized at that time that certain symptoms, including discharge, were caused by the ObTape. At 6 Case 4:13-cv-00533-CDL Document 83-14 Filed 10/24/16 Page 7 of 9 Case 4:11-cv-05078-CDL Document 47 Filed 02/11/13 Page 7 of 8 that time, Broome had sufficient notice that her injuries were related to ObTape so that she could begin an investigation to determine whether those injuries were caused by a problem with ObTape, a problem with the implantation surgery, or some other problem. Broome nonetheless argues that she did not suspect that ObTape might be defective until she saw a television ad regarding ObTape complications in 2011. This argument is disingenuous; it is undisputed that Broome conducted research and consulted a lawyer in 2006 based on her suspicion that her symptoms were related to the ObTape. Based on these undisputed facts, Broome's injury became apparent or should reasonably have been apparent to her by 2006 at the latest, so that is when her cause of action accrued.1 Accordingly, North Carolina's 1995 statute of repose, not the 2009 statute of repose, applies. Under the 1995 statute of repose, no personal injury claims "based upon or arising out of any alleged defect or any failure in relation to a product shall be brought more than six years after the date of initial purchase for use or consumption." N.C. Gen. Stat. § 1-50(a)(6) (1995). Therefore, a personal injury cause of action based on a product defect must be brought To the extent that this holding may appear to be inconsistent with the Court's previous holding under Georgia law in In re Mentor Corp. ObTape Transobturator Sling Products Liability Litigation, 711 F. Supp. 2d 1348 (M.D. Ga. 2010), the Court finds that North Carolina law has not been as broadly interpreted as the Eleventh Circuit seemed to interpret Georgia law in Welch v. Celotex Corp., 951 F.2d 1235 (11th Cir. 1992). 7 Case 4:13-cv-00533-CDL Document 83-14 Filed 10/24/16 Page 8 of 9 Case 4:11-cv-05078-CDL Document 47 Filed 02/11/13 Page 8 of 8 within six years of the date when the product was initially purchased for use or consumption. Robinson, 703 S.E.2d at 887 (finding that to bring a claim related to an allegedly defective tire, the plaintiffs had to prove that the "tire was initially purchased within six years of the filing of the complaint"); see also Bryant v. Don Galloway Homes, Inc., 556 S.E.2d 597, 600 (N.C. Ct. App. 2001) (noting that a statute of repose begins to run when the statutory triggering event occurs, "regardless of whether or not there has been an injury"). Here, it is undisputed that Broome's ObTape was initially purchased for use on November 17, 2004 at the latest, when the ObTape was implanted into Broome's body. Broome did not file her Complaint until more than six years later, on October 20, 2011. Accordingly, her claims are barred by the statute of repose, and Mentor is entitled to summary judgment. CONCLUSION For the reasons set forth above, Mentor's Motion for Summary Judgment (ECF No. 37 in 4:11-cv-5078) is granted. IT IS SO ORDERED, this llth day of February, 2013. S/Clay D. Land CLAY D. LAND UNITED STATES DISTRICT JUDGE 8 Case 4:13-cv-00533-CDL Document 83-14 Filed 10/24/16 Page 9 of 9 EXHIBIT L Case 4:13-cv-00533-CDL Document 83-15 Filed 10/24/16 Page 1 of 6 Fischer v. GlaxoSmithKline, LLC, Not Reported in F.Supp.2d (2012) 2012 WL 6738318, Prod.Liab.Rep. (CCH) P 18,989 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2012 WL 6738318 Only the Westlaw citation is currently available. United States District Court, M.D. North Carolina. Scott FISCHER, Plaintiff, v. GLAXOSMITHKLINE, LLC, Defendant. No. 1:12CV392. | Dec. 28, 2012. Attorneys and Law Firms William Trippe McKeny, Milton Bays Shoaf, Salisbury, NC, for Plaintiff. David Glen Guidry, Ursula Marie Henninger, King & Spalding LLP, Charlotte, NC, David F. Norden, Todd P. Davis, King & Spaulding LLP, Atlanta, GA, for Defendant. MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD, United States Magistrate Judge. *1 The instant matter comes before the undersigned United States Magistrate Judge for a ruling on Plaintiff's Motion for Remand to State Court (Docket Entry 16) and a recommended ruling on Defendant GlaxoSmithKline LLC's Motion to Dismiss (Docket Entry 7). (See Docket Entry dated June 28, 2012.) 1 For the reasons that follow, the Motion for Remand will be denied and the Motion to Dismiss should be granted. I. Background Plaintiff Scott Fischer was prescribed the drug Paxil in 2004 “for the treatment of obsessive compulsive disorder and anxiety.” (Docket Entry 4, ¶ 2.) 2 Over the next five years, while continuously taking the drug, Plaintiff claims he experienced increasing depression, suicidal ideation, and irresistible urges to consume alcohol. (Id. ¶¶ 5-10.) During that time, Plaintiff alleges he “required extensive psychiatric care, frequent visits with his medical doctor, could not maintain employment, lost relationships with friends and family, was unable to enjoy life and hobbies, and experienced severe mental and physical pain and suffering as a result of his side effects [.]” (Id. ¶ 12.) In March of 2009, “Plaintiff was hospitalized for six days in the intensive care unit” as a result of an attempted suicide by overdosing on prescription medications. (Id. ¶ 10.) Plaintiff was then taken off Paxil and reported that, “after only three weeks, [his] cravings subsided and feelings of depression and suicidal ideation dissipated.” (Id. ¶ 11.) Plaintiff subsequently brought this suit in North Carolina state court against GlaxoSmithKline, LLC (“GSK”), the manufacturer of Paxil. (See Docket Entry 4.) Plaintiff's Complaint alleges the following claims: (1) “Product Liability-Failure to Warn” (id. ¶¶ 13-17); (2) “Negligence” (with regard to GSK's “duty to exercise reasonable care in the manufacture and marketing of prescription medications, and [ ] duty to monitor safety” (id. ¶ 19)) (id. ¶¶ 18-23); and (3) “Negligence” (with regard to GSK's “duty to research and properly test prescription medications before seeking approval to release a drug onto the market” (id. ¶ 25)) (id. ¶¶ 24-29). On April 18, 2012, GSK petitioned for removal to this Court. (Docket Entry 1 .) GSK thereafter filed the instant Motion to Dismiss (Docket Entry 7), to which Plaintiff never responded (see Docket Entries dated April 19, 2012 to present). Plaintiff filed the instant Motion for Remand to State Court. (Docket Entry 16.) GSK timely responded. (Docket Entry 18.) II. Motion to Remand A. Standard for a Motion to Remand “The burden of demonstrating jurisdiction resides with the party seeking removal.” Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir.2004) (en banc) (internal quotation marks omitted). A federal court must “construe removal jurisdiction strictly because of the significant federalism concerns implicated.” Id. (internal quotation marks omitted). If federal jurisdiction appears doubtful, then the federal court must remand the action to state court. Id. *2 If a federal court has original jurisdiction of a state court case, i.e., the case could have originally been filed in Case 4:13-cv-00533-CDL Document 83-15 Filed 10/24/16 Page 2 of 6 Fischer v. GlaxoSmithKline, LLC, Not Reported in F.Supp.2d (2012) 2012 WL 6738318, Prod.Liab.Rep. (CCH) P 18,989 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 federal district court, then a defendant may remove that state court case to the federal district court embracing the place where the action is pending “[e]xcept as otherwise provided.” 28 U.S.C. § 1441(a). Federal district courts have original jurisdiction over civil actions “where the amount in controversy exceeds the sum or value of $75,000” and the parties are “citizens of different states.” 28 U.S.C. § 1332(a). B. Diversity Jurisdiction Plaintiff argues that GSK: has a principal place of business in Raleigh, North Carolina[,] ... maintains a registered agent in North Carolina, markets and sells prescription drugs to North Carolina citizens, their [sic] products are consumed by North Carolina citizens, and [GSK] has purposefully availed itself to [sic] North Carolina law and North Carolina court's [sic] jurisdiction by benefiting [sic] and seeking protections under North Carolina law and maintaining a place of business in North Carolina. (Docket Entry 17 at 2 (emphasis added).) Plaintiff therefore contends that GSK is “subject to the jurisdiction of North Carolina courts” (id. at 3), and, presumably, that no diversity of citizenship exists. 3 Plaintiff confuses the standard for determining subject matter jurisdiction based on diversity of citizenship with the standard for personal jurisdiction, see International Shoe Co. v. State of Wash., 326 U.S. 310, 316-20 (1945). For purposes of diversity jurisdiction, “a corporation shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business .... “ 28 U.S.C. § 1332(c)(1) (emphasis added). “The word ‘place’ is in the singular, not the plural.” Hertz Corp. v. Friend, --- U.S. ----, ----, 130 S.Ct. 1181, 1192 (2010). Moreover, the United States Supreme Court has interpreted “principal place of business” as “the place where a corporation's officers direct, control, and coordinate the corporation's activities [,]” otherwise known as the corporation's “nerve center.” Id. Plaintiff's Complaint acknowledges that GSK “is [ ] registered in England and Wales, with a registered agent in Raleigh, North Carolina, and a principal office in Philadelphia, Pennsylvania.” (Docket Entry 4, ¶ 2 (emphasis added).) Plaintiff further concedes that GSK is incorporated in Delaware. (Docket Entry 17 at 2.) The fact that GSK does business and has a place of business in North Carolina does not mean that GKS has its principal place of business in North Carolina. Furthermore, the citizenship of a limited liability company like GSK is determined by that of its members. General Tech. Applications, Inc. v. Exro Ltda, 388 F.3d 114, 120 (4th Cir.2004). GSK's sole member is GlaxoSmithKline Holdings, Inc. (“GSK Holdings”). (See Docket Entry 18 at 2.) 4 GSK asserts that “GSK Holdings' officers direct, control, and coordinate GSK Holdings' activities primarily from Delaware,” and therefore “GSK Holdings is a Delaware citizen, and by extension GSK LLC is also a Delaware citizen.” (Id.) 5 Plaintiff has failed to make any showing to the contrary. (See Docket Entry 17 at 2-3.) *3 Under these circumstances, the record does not support a finding that GSK has its principal place of business in North Carolina. Whether such principal place is, consistent with Plaintiff's allegations, in Pennsylvania (Docket Entry 4, ¶ 2) or, as GSK contends, in Delaware (Docket Entry 18 at 2), does not matter. Plaintiff claims citizenship in North Carolina, not in either Pennsylvania or Delaware. (See Docket Entry 4, ¶ 1.) At this point, the Court concludes that complete diversity of citizenship exists. C. Burford Abstention Plaintiff also contends that the Court should abstain from hearing this case under the doctrine set out in Burford v. Sun Oil Co., 319 U.S. 315 (1943), because “this action is more appropriate for proceedings in a North Carolina state court.” (Docket Entry 17 at 3.) The Burford Doctrine states: Where timely and adequate state- court review is available, a federal court sitting in equity must decline Case 4:13-cv-00533-CDL Document 83-15 Filed 10/24/16 Page 3 of 6 Fischer v. GlaxoSmithKline, LLC, Not Reported in F.Supp.2d (2012) 2012 WL 6738318, Prod.Liab.Rep. (CCH) P 18,989 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 to interfere with the proceedings or orders of state administrative agencies: (1) when there are difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar; or (2) where the exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern. New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 361 (1989) (internal quotation marks omitted). The Burford Doctrine does not apply to the case at hand. First, this case does not involve the Court “sitting in equity,” id. To the contrary, Plaintiff's prayers for relief request monetary damages. (See Docket Entry 4, ¶ ¶ 17, 23, 29.) “The Supreme Court has recently made clear that a district court may abstain from exercising its jurisdiction and dismiss a case under Burford ‘only where the relief being sought is equitable or otherwise discretionary.’ “ Gross v. Weingarten, 217 F.3d 208, 223 (4th Cir.2000) (quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 731 (1996)). Second, Plaintiff has shown neither that this case involves “difficult questions of state law” that “bear[ ] on policy problems of substantial public import” (see Docket Entry 17 at 3), nor that allowing the case to proceed in federal court would disrupt state policy (see id.). Instead, Plaintiff merely states that “North Carolina's product's [sic] liability statute is North Carolina specific legislation that provides manufacturers with significant protections. Due to the intricacies of [N.C. Gen.Stat. § ] 99B, this action is more appropriate for proceedings in a North Carolina state court.” (Id.) The fact that a cause of action arises from state law does not warrant abstention. To so find would render diversity jurisdiction effectively moot. Furthermore, federal courts routinely entertain product liability suits based on North Carolina law. See, e.g., Fussman v. Novartis Pharm. Corp., No. 1:06CV149, 2011 WL 5836928 (M.D.N.C. Nov. 21, 2011) (unpublished) (Beaty, C.J.) (upholding jury verdict in failure to warn case under N.C. Gen.Stat. 99B-5); Couick v. Wyeth, Inc., 691 F.Supp.2d 643 (W.D.N.C.2010) (interpreting N.C. Gen.Stat. 99B and North Carolina state court case law concerning product liability claims in deciding summary judgment motion); Stoddard v. Wyeth, Inc., 630 F.Supp.2d 631 (E.D.N.C.2009) (same). Plaintiff has offered no compelling reason for this Court to abstain where other federal courts have not. D. Undue Burden *4 Plaintiff finally asserts that removal to federal court would unduly burden him. (Docket Entry 17 at 3.) His argument, in its entirety, appears as follows: [Plaintiff] has been found to be disabled and has suffered with many medical issues, some as a result of taking Paxil and some not. [His] physical and mental condition restricts him from leaving his home on some days. Due to the state of his physical and mental health, it would be unduly burdensome for him to be required to travel to the Federal District Court for the Middle District of North Carolina if and when this action proceeds to trial. (Id.) Although the Court sympathizes with Plaintiff, he has cited no authority in support of the position that the burden of traveling to a federal court location rather than to a state court location authorizes remand of an otherwise properly removed case and the Court similarly has found no support for such position. III. Motion to Dismiss Plaintiff's case warrants dismissal both because of Plaintiff's failure to respond to the instant Motion and because Plaintiff's Complaint fails to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). Case 4:13-cv-00533-CDL Document 83-15 Filed 10/24/16 Page 4 of 6 Fischer v. GlaxoSmithKline, LLC, Not Reported in F.Supp.2d (2012) 2012 WL 6738318, Prod.Liab.Rep. (CCH) P 18,989 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 Under this Court's Local Rules, failure to respond to a motion generally warrants granting the relief requested. See M.D.N.C. LR7.3(k). Plaintiff has offered no explanation to the Court for said failure in either his Motion for Remand or the accompanying memorandum of law. (See Docket Entries 16 & 17.) Accordingly, the Court should follow its general rule and dismiss the action. In addition, Plaintiff's case should be dismissed because North Carolina's statute of limitations bars his claims. Under North Carolina law, a plaintiff must bring a cause of action for personal injury within three years, and the cause of action shall not accrue until bodily harm to the claimant ... becomes apparent or ought reasonably to have become apparent to the claimant, whichever occurs first. N.C. Gen.Stat. § 1-52(16). Plaintiff's Complaint indicates that he became aware of the alleged side effects of Paxil as early as June of 2004 (Docket Entry 4, ¶ 5 (“[P]laintiff ... first reported negative side effects connected to the administration of Paxil on June 26, 2004,” including depression and alcohol craving)), and that, in September of 2005, Plaintiff “believed Paxil was causing [his] depression and cravings for alcohol and that the medication was no longer benefitting him because the help with anxiety was outweighed by the negative side effects” (id. ¶ 9). The harm Plaintiff alleges thus “[became] apparent,” N.C. Gen.Stat. § 1-52(16), over six years before he initially filed his claim in state court on March 16, 2012 (see Docket Entry 4), well outside the three- year statute of limitations. Therefore the Court should grant GSK's Motion to Dismiss. See Koehler v. Rite- Aid Pharmacy, No. 3:12-cv-00046, 2012 WL 896144, at *2 (W.D.N.C. Mar. 15, 2012) (unpublished) (dismissing plaintiff's pharmaceutical product liability claim as barred by North Carolina statute of limitations where plaintiff became ill over three years before filing suit); see also Jones v. Bock, 549 U.S. 199, 215 (2007) (“If the allegations [of a complaint] show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim....”). IV. Conclusion *5 Diversity jurisdiction exists in this case and no proper grounds permit abstention. Furthermore, the North Carolina statute of limitations for claims involving personal injury bars Plaintiff's action. IT IS THEREFORE ORDERED that Plaintiff's Motion for Remand to State Court (Docket Entry 16) is DENIED. IT IS THEREFORE RECOMMENDED that Defendant's Motion to Dismiss (Docket Entry 7) be granted. All Citations Not Reported in F.Supp.2d, 2012 WL 6738318, Prod.Liab.Rep. (CCH) P 18,989 Footnotes 1 For reasons stated in William E. Smith Trucking, Inc. v. Rush Trucking Ctrs. of N.C., Inc., No. 1:11CV887, 2012 WL 214155, at *2-6 (M.D.N.C. Jan. 24, 2012) (unpublished), the undersigned United States Magistrate Judge opts to enter an order rather than a recommendation regarding remand. 2 Plaintiff's Complaint contains two paragraphs designated “2.” (See Docket Entry 4.) 3 Plaintiff does not contest that the amount in controversy meets the jurisdictional minimum of $75,000.00. (See Docket Entry 17.) Furthermore, each of the three claims in the Complaint requests that “the Court award monetary damages for personal injury against the Defendant, GlaxoSmithKline, LLC., in an amount that exceeds $10,000.00, to be determined at trial, plus costs, for any further relief that this Honorable Court determines necessary and appropriate, and a trial by jury.” (Docket Entry 4, ¶¶ 17, 23, 29.) Plaintiff alleges that “during the years [he] was prescribed and taking Paxil [i.e. June 2004 through March 2009], [he] required extensive psychiatric care, frequent visits with his medical doctor, could not maintain employment, lost relationships with friends and family, was unable to enjoy life and hobbies, and experienced severe mental and physical pain and suffering as a result of his side effects[.]” (Id. ¶ 12.) Plaintiff also indicated in a demand letter to GSK that “he would be fully compensated for his injuries with a payment of $1 million.” (Docket Entry 1-2 at 2-3.) The foregoing evidence supports a conclusion that the amount in controversy exceeds the jurisdictional minimum. See Dagiel v. Kemper Corp., Civil No. 1:11cv262, 2012 WL 1596978, at *2 (W.D.N.C. May 7, 2012) (unpublished) (“[T]he Case 4:13-cv-00533-CDL Document 83-15 Filed 10/24/16 Page 5 of 6 Fischer v. GlaxoSmithKline, LLC, Not Reported in F.Supp.2d (2012) 2012 WL 6738318, Prod.Liab.Rep. (CCH) P 18,989 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 Court may determine the amount in controversy by considering all evidence bearing on the issue, including: ‘the type and extent of the plaintiff's injuries and the possible damages recoverable therefore, including punitive damages if appropriate. The possible damages recoverable may be shown by the amounts awarded in other similar cases. Another factor for the court to consider would be the expenses or losses incurred by the plaintiff up to the date the notice of removal was filed. The defendant may also present evidence of any settlement demands made by the plaintiff prior to removal.’ “ (quoting Green v. Metal Sales Mfg. Corp., 394 F.Supp.2d 864, 866 (S.D.W.Va.2005))). 4 Plaintiff did not contest this matter by replying to GSK's Response, which set forth this information. (See Docket Entries dated June 8, 2012 to present.) 5 Other courts addressing the specific question of exactly where GSK maintains its principal place of business have split, with some identifying its principal place of business as Philadelphia, Pennsylvania, and others concluding that GSK's principal place of business lies in Delaware. Compare Brewer v. SmithKline Beecham Corp., 774 F.Supp.2d 721, 730 (E.D.Pa.2011), with Johnson v. SmithKline Beecham Corp., 853 F.Supp.2d 487, ----, 2012 WL 1057435, at *6 (E.D.Pa. Mar. 29, 2012). As GSK points out, whether GSK is a citizen of Delaware or Pennsylvania “is of no consequence in this action because Plaintiff's North Carolina citizenship nonetheless results in complete diversity between the parties.” (Docket Entry 18 at 2 n. 1.) End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 4:13-cv-00533-CDL Document 83-15 Filed 10/24/16 Page 6 of 6