Waters v. Mentor Corporation et alMOTION for Summary JudgmentM.D. Ga.July 25, 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-478 (Waters) DEFENDANT MENTOR WORLDWIDE LLC’S MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF LILLIE WATERS 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 of Plaintiff’s Complaint. Plaintiff lacks standing to pursue these claims that belong to her bankruptcy estate, and all claims are barred by the doctrine of judicial estoppel because Plaintiff failed to disclose them as part of her 2011 bankruptcy filing. Alternatively, Plaintiff’s claims are time-barred and also fail for lack of proof. The grounds for this Motion are set forth in more detail in the accompanying memorandum in support. Dated: July 25, 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-00478-CDL Document 32 Filed 07/25/16 Page 1 of 2 012813\002205\2757810.2 IN RE: MENTOR CORP. OBTAPE TRANSOBTURATOR SLING PRODUCTS LIABILITY LITIGATION MDL NO. 2004 CERTIFICATE OF SERVICE A copy of the foregoing filing was served via ECF and by electronic mail on the following counsel this 25th day of July, 2016: Buffy K. Martines buffym@lpm-triallaw.com Attorney for Plaintiff Lillie Waters s/ John Q. Lewis Attorney for Defendant Mentor Worldwide LLC Case 4:13-cv-00478-CDL Document 32 Filed 07/25/16 Page 2 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION IN RE MENTOR CORP. OBTAPE TRANSOBTURATOR SLING PRODUCTS LIABILITY LITIGATION MDL Case No. 2004 Master Case No. 4:08-md-2004-CDL Individual Case No. 4:13-cv-478 (Waters) DEFENDANT MENTOR WORLDWIDE LLC’S MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF LILLIE WATERS Defendant Mentor Worldwide LLC (“Mentor”) is entitled to dismissal of Plaintiff Lillie Waters’s Complaint because she lacks standing to pursue claims that belong to her bankruptcy estate. Alternatively, Mentor is entitled to summary judgment on all claims on judicial estoppel grounds, because Plaintiff failed to disclose them as part of her 2011 bankruptcy filing. Mentor is also entitled to summary judgment on Plaintiff’s claims because they are time-barred and fail for lack of proof. UNDISPUTED FACTS RELEVANT TO THIS MOTION This Court previously described general facts related to ObTape (e.g., Apr. 22. 2010 Order, Doc. 241, at 4-5); Mentor will not restate them here because this motion is premised on undisputed facts unique to Plaintiff Lillie Waters. Mrs. Waters was diagnosed with a cystocele, uterine prolapse, and incontinence in May of 2004 and underwent a simultaneous hysterectomy and ObTape implant on September 7, 2004. (Separate Statement of Material Facts (SSMF) ¶ 1.) Beginning in 2005, Plaintiff alleges that she experienced the following symptoms that she attributes to her ObTape: vaginal infections, chronic vaginal drainage, and dyspareunia. (Id. ¶ 2.) With regard to dyspareunia, Plaintiff claims that both she and her husband could feel “[s]harp” pains during intercourse, her husband could feel the sling rubbing his skin Case 4:13-cv-00478-CDL Document 32-1 Filed 07/25/16 Page 1 of 11 2 “raw,” and “sometimes there would be blood in the bed” and on him afterwards. (Id. ¶ 3.) When these symptoms began, Plaintiff “assumed that it was the sling” that was causing them, but she did not ask her doctor. (Id. ¶ 4.) According to Plaintiff, she still has painful intercourse “if it’s not very gentle,” but she has never asked her doctor about the cause of her pain in the more than ten years since her symptoms began. (Id. ¶ 5.) Plaintiff’s ObTape has never been removed. (Id. ¶ 6.) Mrs. Waters filed for Chapter 7 bankruptcy protection on March 23, 2011. (SSMF ¶ 7.) She did not disclose her potential claims against Mentor in her bankruptcy petition’s schedule of assets, and never attempted to disclose them at any point during the remainder of her bankruptcy proceedings. (Id. ¶ 8.) The bankruptcy court discharged Plaintiff’s debts by Order dated July 25, 2011, and the bankruptcy proceeding was closed on July 29, 2011. (Id. ¶ 9.) Plaintiff direct-filed her Complaint against Mentor in this MDL on October 28, 2013. (Id. ¶ 10.) She asserts two products liability claims: (1) strict liability, and (2) negligence. (Id. ¶ 11.) Plaintiff is a Michigan resident, and all of her ObTape-related treatment occurred in Michigan. (Id. ¶ 12.) LEGAL ARGUMENT Summary judgment should be granted where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed R. Civ. P. 56(a). Indeed, Rule 56 “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 Case 4:13-cv-00478-CDL Document 32-1 Filed 07/25/16 Page 2 of 11 3 U.S. 317, 322 (1986). Facts are “material” only if they could affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On a motion for summary judgment, “facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). A. Plaintiff Lacks Standing to Pursue Her Claims. Upon declaring Chapter 7 bankruptcy, Plaintiff had a legal duty to file a schedule of assets and liabilities with the bankruptcy court, see 11 U.S.C. § 521(a)(1), and all of her property interests-including “all legal or equitable interests . . . in property as of the commencement of the case”-became property of her bankruptcy estate, see 11 U.S.C. § 541(a). “[I]t is well established that the interests of the debtor in property include causes of action.” Bauer v. Commerce Union Bank, 859 F.2d 438, 441 (6th Cir. 1988). That also includes potential causes of action the debtor has reason to know of at the time of bankruptcy. Young v. Indep. Bank, 818 N.W.2d 406, 409 (Mich. Ct. App. 2011) (citing cases recognizing that the debtor need not know all the facts or legal bases of a claim, and concluding that pre-bankruptcy foreclosure dispute with bank was “properly considered . . . an asset of the bankruptcy estate”). A potential claim belongs to the bankruptcy estate if it is “sufficiently rooted in the pre-bankruptcy past,” which occurs when the debtor experiences harm attributable to the alleged tortious conduct. In re Witko, 374 F.3d 1040, 1044 (11th Cir. 2004); see also In re Underhill, 579 F. App’x 480, 482 (6th Cir. 2014) (collecting authority holding that a potential cause of action “qualifies as bankruptcy estate property only if the claimant suffered a pre-petition injury”). Case 4:13-cv-00478-CDL Document 32-1 Filed 07/25/16 Page 3 of 11 4 “[T]he right to pursue causes of action formerly belonging to the debtor . . . vests in the trustee for the benefit of the estate,” and “[t]he debtor has no standing to pursue such causes of action.” Bauer, 859 F.2d at 441 (citation and internal quotation marks omitted); accord Parker v. Wendy’s Int’l, Inc., 365 F.3d 1268, 1272 (11th Cir. 2004), limited on other grounds by prior panel decision as recognized in Slater v. U.S. Steel Corp., 820 F.3d 1193, 1208 n.20 (11th Cir. 2016); Young, 818 N.W.2d at 408. “The debtor can only bring suit on a vested asset if the trustee abandons it or the court gives permission.” Young, 818 N.W.2d at 408. Here, Plaintiff had knowledge of potential claims related to her ObTape in 2005 when she first experienced the symptoms that she attributed to her ObTape at that time. (SSMF ¶ 2.) Indeed, Plaintiff concedes that her dyspareunia and related symptoms- including the mesh rubbing her husband “raw” and bleeding on the sheets-led her to “assume[] that it was the sling.” (Id. ¶ 4.) Yet, despite continuing pain with intercourse over the ensuing ten years, she never asked her doctors what was causing it. (Id. ¶ 5.) That means that, by the time she filed for bankruptcy in 2011, she had experienced substantial dyspareunia that she believed was caused by her ObTape for more than five years. Thus, these alleged injuries were well known by the time of her petition, demonstrating that her potential claims were “sufficiently rooted in the pre-bankruptcy past” to belong to her bankruptcy estate. See In re Witko, 374 F.3d at 1044; In re Underhill, 579 F. App’x at 482. Because Plaintiff admittedly failed to disclose them (id. ¶ 8), the bankruptcy trustee could not abandon them, and the bankruptcy court could not consent to her bringing them. Young, 818 N.W.2d at 410 (“An unscheduled asset cannot be abandoned even if the trustee knows of its existence.”) Plaintiff therefore lacks standing to pursue her claims, which properly belonged to her bankruptcy estate, Case 4:13-cv-00478-CDL Document 32-1 Filed 07/25/16 Page 4 of 11 5 and this Court should dismiss her Complaint. Id. (affirming dismissal of the suit for lack of standing). B. Plaintiff’s Claims Are Also Barred by Judicial Estoppel.1 To the extent Plaintiff has standing to pursue her claims against Mentor, the doctrine of judicial estoppel bars them, because she admits she did not disclose them in her bankruptcy proceeding. (SSMF ¶ 8.) “It is routinely recognized that a potential cause of action constitutes an asset that must be included under 11 U.S.C. § 521(a)(1)(B)(i).” Spohn v. Van Dyke Pub. Sch., 822 N.W.2d 239, 248 (Mich. Ct. App. 2012) (per curiam) (citing Eubanks v. CBSK Fin. Group, Inc., 385 F.3d 894, 897 (6th Cir. 2004)). [T]o support a finding of judicial estoppel, [a reviewing court] must find that: (1) [the plaintiff] assumed a position that was contrary to the one that she asserted under oath in the bankruptcy proceedings; (2) the bankruptcy court adopted the contrary position either as a preliminary matter or as part of a final disposition; and (3) [the plaintiff's] omission did not result from mistake or inadvertence. In determining whether [the plaintiff's] conduct resulted from mistake or inadvertence, [the reviewing] court considers whether: (1) [the plaintiff] lacked knowledge of the factual basis of the undisclosed claims; (2) [the plaintiff] had a motive for concealment; and (3) the evidence indicates an absence of bad faith. Spohn, 822 N.W.2d at 247 (quoting White v. Wyndham Vacation Ownership, Inc., 617 F.3d 472, 476 (6th Cir. 2010) (alterations in Spohn). Because Plaintiff admittedly failed 1 Though Mentor contends that federal law governs judicial estoppel when the case presents federal interests-here, the integrity of federal bankruptcy proceedings and this federal proceeding, see Chrysler Credit Corp. v. Rebhan, 842 F.2d 1257, 1260 (11th Cir. 1988), abrogated on other grounds by Grogan v. Garner, 498 U.S. 279 (1991)-this Court need not conduct a choice-of-law analysis, because Michigan courts apply federal judicial estoppel principles when the inconsistent litigation position occurs during a bankruptcy proceeding, e.g., Spohn v. Van Dyke Pub. Sch., 822 N.W.2d 239, 246-47 (Mich. Ct. App. 2012) (per curiam) (applying federal judicial estoppel rules). Case 4:13-cv-00478-CDL Document 32-1 Filed 07/25/16 Page 5 of 11 6 to disclose her potential claims against Mentor to her bankruptcy estate, the relevant questions are (1) did she have knowledge of the undisclosed claims, and (2) did she have a motive for concealment. As detailed above, Plaintiff had knowledge of potential claims related to her ObTape in 2005 when she first experienced the symptoms that she attributed to her ObTape at that time. (SSMF ¶ 2.) Plaintiff concedes that her dyspareunia and related symptoms-including the mesh rubbing her husband “raw” and bleeding on the sheets- led her to “assume[] that it was the sling.” (Id. ¶ 4.) Accepting her testimony, she had experienced substantial dyspareunia that she believed was caused by ObTape for more than five years before she filed for bankruptcy. Thus, these alleged injuries were well known by the time of her petition, demonstrating that her potential claims were “sufficiently rooted in the pre-bankruptcy past” to belong to her bankruptcy estate. See In re Witko, 374 F.3d at 1044; In re Underhill, 579 F. App’x at 482; see also Spohn, 822 N.W.2d at 249 (“A debtor need not know all the facts or even the legal basis for the cause of action; rather, if the debtor has enough information . . . prior to confirmation to suggest that it may have a possible cause of action, then that is a known cause of action such that it must be disclosed.” (citation and internal quotation marks omitted)). Her motive for concealment, meanwhile, can be presumed as a matter of law because bankruptcy debtors have an interest in retaining assets that otherwise would belong to the bankruptcy estate for the payment of creditors. Id. at 249; accord De Leon v. Comcar Indus., Inc., 321 F.3d 1289, 1291 (11th Cir. 2003) (per curiam) (“[A] financial motive to secret assets exists under Chapter 13 . . . because the hiding of assets affects the amount to be discounted and repaid.”); In re Tyson Foods, Inc., 732 F. Supp. 2d 1363, 1371 (M.D. Ga. 2010). Case 4:13-cv-00478-CDL Document 32-1 Filed 07/25/16 Page 6 of 11 7 There is no evidence that Plaintiff attempted to amend her bankruptcy filings or otherwise disclose her claims against Mentor to the bankruptcy court or her estate. The bankruptcy court relied on Plaintiff’s non-disclosure when it discharged her debt. Plaintiff knew of her potential claims and had a motive to conceal them. Having concealed them in her bankruptcy proceedings, she cannot reverse course now. In re Tyson Foods, 732 F. Supp. 2d at 1373 (explaining that non-disclosing debtor cannot “back-up, re-open the bankruptcy case, and amend [her] bankruptcy filings,” because that “would suggest [] that a debtor should consider disclosing potential assets only if [she] is caught concealing them.”). Judicial estoppel is warranted, and Mentor is entitled to summary judgment on all of Plaintiff’s claims. C. Alternatively, Plaintiff’s Claims Are Time-Barred and Fail for Lack of Proof. Alternatively, Mentor contends that summary judgment is warranted because Plaintiff’s claims are time-barred and fail for lack of proof. 1. Michigan Law Applies to Plaintiff’s Claims. Per this Court’s Direct-Filing Order, Michigan choice-of-law rules apply, as Plaintiff was a Michigan resident when she filed her Complaint. Michigan’s law governs Plaintiff’s claims because all of her ObTape-related treatment and alleged injuries occurred there. (See SSMF ¶ 13.) Case 4:13-cv-00478-CDL Document 32-1 Filed 07/25/16 Page 7 of 11 8 2. Plaintiff’s Claims2 Are Time-Barred. Michigan’s statute of limitations for product liability claims is three years. Mich. Comp. Laws § 600.5805(13). The limitations period begins “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” occurs on the date the defendant’s actions harm the plaintiff. See Connelly v. Paul Ruddy’s Equip. Repair & Serv. Co., 200 N.W.2d 70, 72-73 (Mich. 1972); In re Mentor Corp. ObTape Transobturator Sling Prods. Liab. Litig. (Purol), No. 4:12-cv-102, 2015 WL 4644626, at *2 (M.D. Ga. Aug. 4, 2015) (attached as Ex. F to Lewis Decl.). As this Court has recognized, “Michigan does not have a general discovery rule that tolls the statute of limitations in product liability cases.” Purol, 2015 WL 4644626, at *3 (citing Bearup v. Gen. Motors Corp., Docket Nos. 272654, 272666, 2009 WL 249456, at *5-6 (Mich. Ct. App. Feb. 3, 2009) (per curiam)). Here, the record demonstrates that Mrs. Waters began experiencing the symptoms that she attributed to her ObTape in 2005. (SSMF ¶ 2.) In fact, she admits that the painful intercourse symptoms led her to “assume that it was the sling.” (Id. ¶ 4.) Yet, despite continuing pain with intercourse over the ensuing ten years, she never asked her doctors what was causing it. (Id. ¶ 5.) Accordingly, the harm occurred and the claims accrued in 2005, when Mrs. Waters allegedly experienced symptoms she associated with her ObTape. Purol, 2015 WL 4644626, at *2-3 (concluding that the 2 “In Michigan, two theories of recovery are recognized in product liability cases; negligence and implied warranty. Strict liability has not been recognized as a third theory of recovery.” Johnson v. Chrysler Corp., 254 N.W.2d 569, 571 (Mich. Ct. App. 1977); see also Tice v. Zimmer Holdings, Inc., No. 1:15-cv-134, 2015 WL 6619143, at *2 (E.D. Mich. Oct. 30, 2015) (attached as Ex. E to Lewis Decl.). Plaintiff’s strict liability claims in Count I are therefore precluded. Tice, 2015 WL 6619143, at *2, 8 (dismissing Count I “to the extent that it relies on a theory of strict liability”). Case 4:13-cv-00478-CDL Document 32-1 Filed 07/25/16 Page 8 of 11 9 plaintiffs’ ObTape claims accrued, under Michigan law, in 2005 when Mrs. Purol first experienced complications with her mesh). Plaintiff cannot claim fraudulent concealment to toll the limitations period, because there is no evidence that Mentor undertook “an affirmative act to hinder . . . plaintiff’s investigation into the cause of her problem with the product.” Id. at *3 (citing Cibrowski v. Pella Window & Door Co., No. 257091, 2005 WL 3478159, at *3-4 (Mich. Ct. App. Dec. 20, 2005) (per curiam)). Indeed, Plaintiff causally connected her ObTape with the onset of her dyspareunia and related symptoms in 2005. See id. (rejecting fraudulent concealment argument where plaintiffs knew in 2005 “that ObTape may have caused their injuries”). Plaintiff’s claims expired in 2008, three years after her claims accrued. Consequently, the product liability claims asserted in her October 2013 Complaint are time-barred, and Mentor is entitled to summary judgment. Id. at *4 (granting summary judgment to Mentor on the Purols’ claims, finding them barred by Michigan’s three-year statute of limitations). 3. Plaintiff’s Claims Fail for Lack of Proof. Plaintiff’s claims also fail for lack of proof. Plaintiff’s claims include allegations of design defect, manufacturing defect, and failure to warn. (Compl. ¶¶ 21, 31.) To the extent based on a design-defect theory, her claims fail as a matter of law because Plaintiff never designated an expert witness to support these claims. E.g., Olson v. Home Depot, 321 F. Supp. 2d 872, 876 (E.D. Mich. 2004) (collecting authority recognizing that Michigan law requires expert testimony to support a design defect claim, and granting summary judgment to manufacturer after the expert witness was stricken). To the extent based on a manufacturing defect, her claims necessarily fail too, Case 4:13-cv-00478-CDL Document 32-1 Filed 07/25/16 Page 9 of 11 10 because Plaintiff has no evidence-expert or otherwise-showing that a manufacturing defect caused her alleged injuries. E.g., Towner v. Grand Trunk W. R. Co., 57 F. App’x 232, 235-36 (6th Cir. 2003) (applying Michigan law and affirming summary judgment to chair manufacturer on manufacturing defect claim, where lack of expert testimony regarding causation rendered the manufacturing defect claim speculative). And to the extent her claims are premised on a failure-to-warn, the claims fail because Plaintiff never deposed her implanting surgeon and thus has no evidence that any deficient warning affected her surgeon’s prescribing decision. Cf. Formella v. Ciba-Geigy Corp., 300 N.W.2d 356, 358-59 (Mich. Ct. App. 1980) (affirming directed verdict for pharmaceutical manufacturer where physician did not read product warnings, explaining that no warning defect affected the treatment decision so as to have proximately caused the plaintiff’s injury). Plaintiff cannot rest on her pleadings, and because she has not established causation to support her claims, Mentor is entitled to summary judgment. E.g., Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1533 (11th Cir. 1992) (explaining that the “party responding to summary judgment may not rest on her pleadings to demonstrate the presence of an issue of fact,” but must “respond with affidavits, depositions, or other evidence to demonstrate that there are material facts that must be presented to a jury for resolution”). CONCLUSION The record confirms that Plaintiff knew of her potential claims against Mentor, but failed to disclose them in her bankruptcy proceeding. Her Complaint should thus be dismissed for lack of standing. Alternatively, Mentor is entitled to summary judgment on judicial estoppel grounds, because Plaintiff should not be able to benefit from Case 4:13-cv-00478-CDL Document 32-1 Filed 07/25/16 Page 10 of 11 11 012813\002205\2757808.2 knowingly concealing these assets. Mentor is also entitled to summary judgment on the merits of Plaintiff’s claims, because they are time-barred and lack evidence of the requisite element of causation. Dated: July 25, 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-00478-CDL Document 32-1 Filed 07/25/16 Page 11 of 11 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-478 (Waters) DEFENDANT MENTOR WORLDWIDE LLC’S SEPARATE STATEMENT OF MATERIAL FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAINST LILLIE WATERS Pursuant to Rule 56 of the Federal Rules of Civil Procedure and Local Rule 56, Defendant Mentor Worldwide LLC submits this Separate Statement of Material Facts in support of its Motion for Summary Judgment against Plaintiff Lillie Waters. A. Plaintiff’s ObTape Implant. 1. Mrs. Waters was diagnosed with a cystocele, uterine prolapse, and incontinence in May of 2004 and underwent a simultaneous hysterectomy and ObTape implant on September 7, 2004. (Dep. of Lillie Waters 17:6-10, 26:1-27:1, attached as Ex. A to Decl. of John Q. Lewis (“Lewis Decl.”); Pl. Fact Sheet § II, ¶¶ 1-2, attached as Ex. B to Lewis Decl.) 2. Beginning in 2005, Plaintiff alleges that she experienced the following symptoms that she attributes to her ObTape: vaginal infections, chronic vaginal drainage, and dyspareunia. (Pl. Fact Sheet § VIII, ¶ 1; Waters Dep. 20:12-14, 24:11-17, 37:20-25.) 3. With regard to dyspareunia, Plaintiff claims that both she and her husband could feel “[s]harp” pains during intercourse, her husband could feel the sling Case 4:13-cv-00478-CDL Document 32-2 Filed 07/25/16 Page 1 of 3 2 rubbing his skin “raw,” and “sometimes there would be blood in the bed” and on him afterwards. (Waters Dep. at 36:20-38:13.) 4. When these symptoms began, Plaintiff “assumed that it was the sling” that was causing them, but she did not ask her doctor. (Id. at 38:14-39:13.) 5. According to Plaintiff, she still has painful intercourse “if it’s not very gentle,” but she has never asked her doctor about the cause of her pain in the more than ten years since her symptoms began. (See id. at 44:3-20.) 6. Plaintiff’s ObTape has never been removed. (Pl. Fact Sheet § II, ¶ 9.) 7. Mrs. Waters filed for Chapter 7 bankruptcy protection on March 23, 2011. (See Bankruptcy Docket Report, In re Waters, No. 11-47931-tjt (E.D. Mich. Bankr.), attached as Ex. C to Lewis Decl.) 8. She did not disclose her potential claims against Mentor in her bankruptcy petition’s schedule of assets, and never attempted to disclose them at any point during the remainder of her bankruptcy proceedings. (Waters Dep. at 75:8-11; see also Chapter 7 Petition Schedules at 2-5 (Schedule B-Personal Property), attached as Ex. D to Lewis Decl.) 9. The bankruptcy court discharged Plaintiff’s debts by Order dated July 25, 2011, and the bankruptcy proceeding was closed on July 29, 2011. (Bankruptcy Docket Report.) B. Procedural History. 10. Plaintiff direct-filed her Complaint against Mentor in this MDL on October 28, 2013. (Doc. 1, Compl.) 11. Mrs. Waters asserts two products liability claims: (1) strict liability, and (2) negligence. (Id. ¶¶ 20-39.) Case 4:13-cv-00478-CDL Document 32-2 Filed 07/25/16 Page 2 of 3 3 012813\002205\2757811.2 12. Plaintiff is a Michigan citizen, and all of her ObTape-related medical treatment occurred in Michigan. (Pl. Fact Sheet § II, ¶¶ 3-4, § III ¶¶ 3-4, § IV.) Dated: July 25, 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-00478-CDL Document 32-2 Filed 07/25/16 Page 3 of 3 012813\002205\2757809.2 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-478 (Waters) DECLARATION OF JOHN Q. LEWIS IN SUPPORT OF DEFENDANT MENTOR WORLDWIDE LLC’S MOTION FOR SUMMARY JUDGMENT AGAINST LILLIE WATERS 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 Plaintiff Lillie Waters’s May 13, 2016 deposition. 3. Attached as Exhibit B is a true and correct copy of Plaintiff’s Fact Sheet. 4. Attached as Exhibit C is a true and correct copy of the bankruptcy court’s docket sheet for In re Waters, No. 11-47931-tjt (E.D. Mich. Bankr.). 5. Attached as Exhibit D is a true and correct copy of Plaintiff’s Chapter 7 bankruptcy petition, filed in In re Waters, No. 11-47931-tjt (E.D. Mich. Bankr.). 6. Attached as Exhibit E is a true and correct copy of the unreported decision Tice v. Zimmer Holdings, Inc., No. 1:15-cv-134, 2015 WL 6619143 (E.D. Mich. Oct. 30, 2015). Case 4:13-cv-00478-CDL Document 32-3 Filed 07/25/16 Page 1 of 2 2 012813\002205\2757809.2 7. Attached as Exhibit F is a copy of this Court’s unreported summary judgment decision in another case in this MDL, In re Mentor Corp. ObTape Transobturator Sling Products Liability Litigation (Purol), No. 4:12-cv-102, 2015 WL 4644626 (M.D. Ga. Aug. 4, 2015). 8. Plaintiff has not served Mentor with an expert report. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this 25th day of July, 2016, in Cleveland, Ohio. s/John Q. Lewis John Q. Lewis Case 4:13-cv-00478-CDL Document 32-3 Filed 07/25/16 Page 2 of 2 Exhibit A Case 4:13-cv-00478-CDL Document 32-4 Filed 07/25/16 Page 1 of 13 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE MIDDLE DISTRICT OF GEORGIA 3 COLUMBUS DIVISION 4 5 IN RE: 6 MENTOR CORP. OBTAPE 7 TRANSOBTURATOR SLING MDL Case No. 4:08-MD-2004(CDL) 8 PRODUCTS LIABILITY Individual Case No. 4:13-cv-00478 9 LITIGATION 10 ____________________/ 11 12 The Videotaped Deposition of LILLIE WATERS, 13 Taken at 30800 Telegraph Road, Suite 2925, 14 Bingham Farms, Michigan, 15 Commencing at 9:13 a.m., 16 Friday, May 13, 2016, 17 Before Laura T. Ambro, CSR-5882. 18 19 20 21 22 23 24 25 Job No. CS2307859 Page 1 Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00478-CDL Document 32-4 Filed 07/25/16 Page 2 of 13 Page 2 1 APPEARANCES: 2 3 SUSAN EARNEST 4 Laminack, Pirtle & Martines, LLP 5 5020 Montrose Boulevard 6 9th Floor 7 Houston, Texas 77006 8 713.292.2750 9 susane@lpm-triallaw.com 10 Appearing on behalf of the Plaintiff. 11 12 ERNEST W. AUCIELLO, JR. 13 Tucker Ellis, LLP 14 950 Main Avenue 15 Suite 1100 16 Cleveland, Ohio 44113 17 216.696.4780 18 ernest.auciello@tuckerellis.com 19 Appearing on behalf of the Defendant. 20 21 ALSO PRESENT: 22 Zachary Adams 23 Devon Green, Video Technician 24 25 Page 3 1 TABLE OF CONTENTS 2 WITNESS PAGE 3 LILLIE WATERS 4 5 EXAMINATION 6 BY MR. AUCIELLO: .................................. 5 7 EXAMINATION 8 BY MS. EARNEST: ................................... 82 9 10 EXHIBITS 11 12 EXHIBIT PAGE 13 Exhibits attached to transcript. 14 15 DEPOSITION EXHIBIT 1 .............................. 63 16 DEPOSITION EXHIBIT 2 .............................. 72 17 18 19 20 21 22 23 24 25 Page 4 1 Bingham Farms, Michigan 2 Friday, May 13, 2016 3 9:13 a.m. 4 5 VIDEO TECHNICIAN: We are now on the record. 6 Please note the microphones are sensitive. They may 7 pick up whispering and private conversations. Please 8 turn off all cell phones or place them away from the 9 microphones, as they can interfere with the deposition 10 audio. The recording will continue until all parties 11 agree to go off the record. 12 My name is Devon Green, representing 13 Veritext. The date today is Friday, May 13, 2016. And 14 the time is approximately 9:13 a.m. This deposition is 15 being held at Bienenstock Court Reporting and Video, 16 located at 30800 Telegraph Road, Bingham Farms, 17 Michigan, and is being taken by the counsel for the 18 defense. The caption of this case is Lillie Waters 19 versus Mentor Corp. This case is being held in the 20 Middle District of Georgia, case number 4:13-cv-00478. 21 The name of our witness is Lillie Waters. 22 At this time, the attorneys present in the 23 room, and everybody attending remotely, will identify 24 themselves and the party they represent. Our court 25 reporter, Laura Ambro, representing Veritext, will Page 5 1 swear in the witness, and we can proceed. 2 MR. AUCIELLO: Ernest Auciello, Tucker Ellis, 3 Cleveland, on behalf of Mentor Worldwide. 4 MR. ADAMS: Zachary Adams, Tucker Ellis, 5 Cleveland, on behalf of Mentor Worldwide. 6 MS. EARNEST: Susan Earnest, E-a-r-n-e-s-t, 7 with Laminack, Pirtle, and Martines, representing 8 Ms. Lillie Waters. 9 LILLIE WATERS, 10 was thereupon called as a witness herein, and after 11 having first been duly sworn to testify to the truth, 12 the whole truth and nothing but the truth, was examined 13 and testified as follows: 14 EXAMINATION 15 BY MR. AUCIELLO: 16 Q. Ma'am, would you please state your name and address for 17 the record. 18 A. My name is Lillie Waters. 19 20 Michigan 48183. 21 Q. Have you ever given a deposition before? 22 A. No. 23 Q. All right. Let me just go through what will happen 24 this morning. My name is Ernie Auciello. I'm going to 25 ask you some questions. I'm one of the attorneys for 2 (Pages 2 - 5) Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00478-CDL Document 32-4 Filed 07/25/16 Page 3 of 13 Page 14 1 Q. Any other medical training other than that half a 2 semester at MSU? 3 A. Nursing assistance. But I think I got that training at 4 the nursing home. 5 Q. And which nursing home have you worked at? Is that in 6 the Nineties? 7 A. That was in the Eighties, late Eighties. That was 8 after my son. So, that was '88, '89. 9 Q. What did you do for the nursing home? 10 A. A treatment aide, a treatment aide. I cleaned bed 11 sores and decubitus -- 12 Q. Decubitus ulcers? 13 A. Yes. 14 Q. You've had a wide variety of jobs in your life. 15 A. Yes. 16 Q. Other than the nursing -- the medical training you 17 received at Michigan State and/or the nursing homes you 18 -- was it one nursing home? 19 A. Yes. 20 Q. Any other medical training? 21 A. No. 22 Q. Other than your lawyer, and I don't want you to think 23 I'm ever asking you what your lawyer said to you or 24 what you said to your lawyer, but other than that, what 25 did you do to get ready for this deposition? Page 15 1 A. Pray. 2 Q. Did you look at any documents? 3 A. No. 4 Q. Have you read your own medical records? 5 A. No. 6 Q. Do you keep any journals, notes, diaries that would 7 reflect your health as it relates to your Obtape 8 implant? 9 A. No. 10 Q. So, it's fair to say that the only thing you did, in 11 getting ready for this deposition, is you meeting and 12 conferring with your lawyer? 13 A. Yes. 14 Q. Have you done any internet research relating to Obtape 15 or transvaginal mesh? 16 A. No. 17 Q. Have you ever done research on -- 18 A. No. 19 Q. Do you have a presence on social media? 20 A. Yes. 21 Q. Which ones? Is it Facebook? 22 A. I have a Facebook and I have an Instagram. 23 Q. What are you known as on Facebook? 24 A. Lillie Heard Waters. 25 Q. Lillie? Page 16 1 A. Heard. 2 Q. Are you saying heard? 3 A. Heard, H-e-a-r-d, Waters. 4 Q. Is that your maiden name? 5 A. Maiden name is Heard, yes. 6 Q. Do you put things on Facebook that relate to your 7 health? 8 A. No. 9 Q. Would there be anything on there that relates to your 10 lawsuit against Mentor or your problems with Obtape? 11 A. No. 12 Q. Have you ever deleted things from your Facebook page? 13 A. Stupid stuff other people put on there, but nothing 14 else. 15 Q. No one has ever told you to delete anything? 16 A. No. 17 Q. Nobody saw it and said this will hurt your lawsuit, you 18 better delete it; anything like that? 19 A. No. 20 Q. Any other presence on social media? 21 A. Instagram. 22 Q. I don't understand Instagram. So, do you have a name 23 under Instagram? 24 A. Underscore just lil. 25 Q. Same question with Instagram. Anything relevant to Page 17 1 your health or your claim against Mentor on Instagram? 2 A. No. 3 Q. Have you ever deleted anything significant from 4 Instagram? 5 A. No. 6 Q. As we sit here today, my understanding from the records 7 that I do have, are that you received an implant, an 8 Obtape transobturator procedure in September of 2004; 9 is that correct? 10 A. Yes. 11 Q. As we sit here today, are you suffering from any 12 after-effects or any illness, any pain, any negative 13 physical condition that you believe is caused by the 14 Obtape implant? 15 A. As we sit here today? 16 Q. Right. 17 A. Yes. 18 Q. What is wrong with you today because of that implant? 19 A. I have a yeast infection. 20 Q. It sounds like an acute condition that you have right 21 now? Or is that something chronic? 22 A. It's chronic. It comes back. 23 Q. Okay. I've written that down as one. Do you have any 24 other problems as we sit here today? 25 A. No. 5 (Pages 14 - 17) Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00478-CDL Document 32-4 Filed 07/25/16 Page 4 of 13 Page 18 1 Q. And by as we sit here today, I don't mean that you're 2 feeling right now, but here in 2016. 3 A. Oh, okay. 4 Q. Let's talk about the present time. 5 A. Okay. 6 Q. Not being quite as specific. 7 A. As in 2016, yes. Bacterial vaginosis, BV, which is 8 also chronic, which comes back. The last time I had 9 the bacteria was three weeks ago. She gave me 10 medication for both. And they come back every month or 11 so. 12 Q. So, the yeast infection, chronic yeast infections, 13 bacterial vaginosis. What else? 14 A. Incontinence. 15 Q. Incontinence? 16 A. Yes. 17 Q. Like I said, you can take a break if you need to. 18 A. I'm okay. I'm okay. And painful sex. 19 MS. EARNEST: There's Kleenex right behind 20 you. Thank you, Zach. 21 MR. ADAMS: Sure. 22 A. Okay. 23 BY MR. AUCIELLO: 24 Q. Anything else, other than those four things? 25 A. As of this year, those four things. Page 19 1 Q. Okay. Have you had any problems that arose after your 2 implant, but have resolved themselves, that you 3 attribute to the implant? 4 A. I've had bladder infections. I have not had one this 5 year. They are periodic. And just afraid of my 6 future. Being concerned for it. 7 Q. I'm just right now trying to make a list. And it's my 8 only chance to talk to you. So, that's why I kind of 9 keep repeating things back. 10 A. I understand. 11 Q. But the past bladder infections, your concern over the 12 future. Anything else? 13 A. That's it. 14 Q. Would it be fair to say that you -- your, I guess, 15 complaints about your health that you relate to Obtape 16 are chronic yeast infections, vaginal -- bacterial 17 vaginitis, recurrence of incontinence, painful sex, and 18 past bladder infections, and anxiety and fear for the 19 future? 20 A. Yes. 21 Q. Nothing else? 22 A. Nothing else. 23 Q. Do you know what an erosion is? 24 A. Yes. 25 Q. An erosion of like Obtape or like vaginal mesh? Page 20 1 A. Yes. 2 Q. Have you ever had an erosion? 3 A. Not that I'm aware of. 4 Q. Have you had doctors give you vaginal examinations from 5 time to time? 6 A. Yes. 7 Q. Has any doctor reported that you had an erosion? 8 A. No. 9 Q. To your knowledge, have you ever had an infection 10 directly in or around where your Obtape was implanted? 11 A. No. 12 Q. When did you first start having the chronic yeast 13 infections? 14 A. About a year after the tape. 15 Q. Had you had yeast infections before the tape? 16 A. One. 17 Q. Once? 18 A. Yes. 19 Q. And when was that? 20 A. When I first went to see my -- the doctor who assisted 21 in the performance. She did the hysterectomy. And the 22 other doctor put the tape in. But my uterus, my 23 bladder, and my cervix had prolapsed. And I had an 24 infection when I saw her. That was in 2004. That's 25 when I -- my first time seeing her. Page 21 1 Q. Is that Dr. Metcalf? 2 A. Yes. 3 Q. So, you had an infection before you had the procedure, 4 which included the Obtape implant? 5 A. Yes. 6 Q. And you went a year without having one? 7 A. After the tape, I went a year. 8 Q. And you got another infection some time about a year 9 later? 10 A. They started coming back to back after that. 11 Q. What is back to back? Is that -- 12 A. Every two or three months. 13 Q. And who do you treat with that -- who have you treated 14 with for the chronic yeast infections? 15 A. I don't understand. 16 Q. Have you gone to a doctor for the chronic yeast 17 infections? 18 A. Oh, yes. 19 Q. Who was that? 20 A. Dr. Metcalf for some time. When I moved out of 21 Detroit, she was a little too far when I moved to 22 Brownstown. So, I started seeing Dr. Stephanie Crane. 23 I saw Dr. Crane for a very long time. She stopped 24 working at the clinic. And then I started seeing one 25 of her -- one of the associates that was also working 6 (Pages 18 - 21) Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00478-CDL Document 32-4 Filed 07/25/16 Page 5 of 13 Page 22 1 in the clinic. And I don't know her first name, but 2 her name is Dr. Pentowski. 3 Q. Anybody else for the chronic yeast infections? 4 A. No. 5 Q. And have your doctors given you an explanation as to 6 why you get chronic yeast infections? 7 A. No. 8 Q. How have they treated the yeast infections? 9 A. Diflucan. And they told me to buy over-the-counter. 10 Because if they gave me too much Diflucan, my body 11 could set up a resistance against it and it won't fight 12 it. So, sometimes I would go to the store and buy the 13 over-the-counter stuff. And then they gave me Boric 14 Acid pills to insert. 15 Q. Have those measures been any effective? Have they been 16 effective in treating your chronic yeast infections? 17 A. Sometimes. They would go away for a while. Dr. Crane 18 put me on a 90-day supply of the Diflucan once because 19 the symptoms kept coming back like every other week. 20 So, she put me on 90 days, a pill every other day for 21 90 days. It went away for a while. Then when it came 22 back, it came back with the bacterial vaginosis. And 23 she gave me Tindamax and the Diflucan. And she told me 24 to buy this Monistat. It went away for a while. A 25 couple months, it came right back. And they started Page 23 1 coming together, or a day or a week apart of each 2 other. 3 Q. Are you continuing on that course of treatment? 4 A. Yes. 5 Q. Now? 6 A. Yes. 7 Q. Who is your current doctor? 8 A. Dr. Pentowski. 9 Q. What is Dr. Pentowski's area of specialty? 10 A. She's a gyn. 11 Q. Why do you believe that your chronic yeast infections 12 are caused by the Obtape? 13 A. I didn't have them before the tape, and now I have them 14 a lot after the tape. 15 Q. Any other reason? 16 A. No. 17 Q. Have you done any research, either internet or 18 otherwise, that suggests to you that Obtape or vaginal 19 mesh can cause yeast infections? 20 A. No. 21 Q. What about the bacterial vaginitis? 22 A. They're the same, the same course of treatment with the 23 yeast infection. 24 Q. Did it arise about a year after your implant? 25 A. They came a little later. They came a -- yeah, about a Page 24 1 year. But they weren't -- the first time I saw the BV 2 is not the first time I saw the yeast infection. I saw 3 the BV and then -- I mean the yeast infection was then 4 treated. And then I went back maybe about a month 5 later and said something is not right. It's getting 6 worse. Which I thought it was just a very bad yeast 7 infection. That's when she told me -- she had to 8 explain to me, because I had never heard of bacterial 9 vaginosis. And she explained to me what that was and 10 this is what I had. 11 Q. What did she tell you bacterial vaginosis was? 12 A. She said the flora in my lady parts had overgrown. And 13 sometimes, when they overgrow, they become a bacteria. 14 Q. Same doctors treated it? 15 A. Same doctors. 16 Q. And it would have been in -- whether it's a month or 17 two later, it would have been some time in say 2005? 18 A. Yes. 19 Q. So, you had the implant in 2004. You had a 20 hysterectomy at the same time? 21 A. Yes. 22 Q. Were you fine from 2004 to 2005? 23 A. Yes. 24 Q. And then in 2005, you started having chronic yeast 25 infections and bacterial vaginosis? Page 25 1 A. Yes. 2 Q. Same question. Why do you believe that bacterial 3 vaginosis is caused by your Obtape implant? 4 A. I never had them before the tape. 5 Q. You never had a bacterial vaginosis? 6 A. Never, before the tape. 7 Q. 8 A. 9 Q. At the time of your implant, you were 38? 10 A. Yes. 11 Q. Have any of your doctors blamed your bacterial 12 vaginosis on the implant? 13 A. No. 14 Q. Have you asked any of your doctors what caused the 15 bacterial vaginosis? 16 A. No. 17 Q. Other than the fact they told you your flora had 18 overgrown? 19 A. That's it. That was a good enough explanation for me, 20 I thought. 21 Q. Did you ever ask them directly whether the Obtape had 22 anything to do with your problem? 23 A. No. 24 Q. Is there a reason why you didn't ask? 25 A. I didn't think it had anything to do with it. 7 (Pages 22 - 25) Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00478-CDL Document 32-4 Filed 07/25/16 Page 6 of 13 Page 26 1 Q. Getting to incontinence, when did you first have a 2 problem with incontinence? 3 A. Before the tape or after the tape? 4 Q. Before the tape. 5 A. When my bladder prolapsed, my bladder hung out of my 6 vagina and I peed every five seconds. Sometimes I 7 could just be walking and I would use the bathroom on 8 myself. And I didn't know until I felt it running down 9 my leg. I didn't know what this pink ball was that was 10 hanging out of my bladder. So, I went to a doctor, and 11 she told me that's your -- I mean out of my -- and she 12 told me that was my bladder, and that my uterus and my 13 cervix was sitting on top of it. 14 Q. Do they call that pelvic organ prolapse? 15 A. Yes. 16 Q. When were you diagnosed with pelvic organ prolapse? 17 A. In May of 2004. 18 Q. Is that Dr. Metcalf also? 19 A. Dr. Metcalf. 20 Q. And that was causing you to be incontinent? 21 A. Yes. 22 Q. As I understand it, you then had a hysterectomy and the 23 Obtape implant? 24 A. Yes. 25 Q. In one procedure? Page 27 1 A. Yes. 2 Q. Do you know -- did you seek any other treatment for the 3 uterine -- for the organ prolapse? 4 A. No. 5 Q. Did that procedure alleviate your incontinence for a 6 time? 7 A. For a time, yes. 8 Q. When did you have a recurrence of the incontinence? 9 A. Not until recently. Some time this year. I sneezed 10 and I peed on myself. If I caught a cold and I 11 coughed, I would pee on myself. If I laughed, I would 12 pee on myself. So, I kind of -- even if I didn't have 13 to go, it wouldn't be severe, but it would be enough 14 for me to wonder what was going on. And I took my 15 concerns to Dr. Pentowski. And she said I want you to 16 go see a specialist. I want you to see a urologist. 17 Q. Now, had you ever had the problem before when you 18 sneezed or exerted yourself? 19 A. No. 20 Q. I think the way you described before your procedure is 21 it was because of your pelvic organ prolapse? 22 A. Yes. 23 Q. You couldn't stop from urinating? 24 A. I couldn't stop it. The urologist back then told me 25 that as ladies, our organs sit up and face each other. Page 28 1 And that's -- when we get full, we can empty. Mine was 2 down here. So, I never emptied. It would just be 3 enough to take the -- like wiping the top of the foam 4 off of a cup. It would still be full. So, if I drunk 5 something, it would overflow. It would just constantly 6 overflow. 7 Q. But is it -- it sounds to me like the incontinence you 8 now suffer from is because when you exert yourself or 9 sneeze or something, you contract muscles and it causes 10 you to have uncontrollable loss? 11 A. Yes. 12 Q. And this -- you started being incontinent again, you 13 said, this year? 14 A. This year. 15 Q. Meaning 2016? 16 A. Yes. 17 Q. Is there anything that precipitated it? Anything in 18 your life that caused this to suddenly come back? 19 A. No. One day I was laughing at a girlfriend and 20 realized that I had wet my clothes. And it was a 21 shock. I didn't want her to know what was going on 22 with me. So, I excused myself. And then I said well, 23 you know, we need to go to the store. And we ran to 24 CVS and I bought some panty liners. 25 Q. Now, you filed your lawsuit in 2013. So, this hadn't Page 29 1 happened when you filed your lawsuit? 2 A. Not the incontinence, no. 3 Q. When you had the procedure, I guess the hysterectomy 4 and the implant, did that alleviate the prolapse? 5 A. Yes. 6 Q. So, your bladder or internal organs were no longer 7 visibly hanging down? 8 A. The uterus and cervix was removed and the bladder was 9 put in place with the tape. 10 Q. Have you had any -- are you aware of having any 11 recurrence of the prolapse? 12 A. No. 13 Q. So, you don't have that same problem you had before the 14 procedure? 15 A. No. 16 Q. And why is it you believe that the Obtape caused the 17 recurrence of your incontinence in 2016? 18 A. I never had it before. Just when the prolapse organs. 19 But after that, I did not have it. 20 Q. You had actually -- I mean, they call it stress 21 incontinence when you -- you do it like when you sneeze 22 or cough. Have you heard that phrase before? 23 A. I have, in my grandmother or women of her age. 24 Q. But you never had that before? 25 A. No. 8 (Pages 26 - 29) Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00478-CDL Document 32-4 Filed 07/25/16 Page 7 of 13 Page 30 1 Q. You had a different kind of incontinence before the 2 procedure? 3 A. Before the procedure. 4 Q. And now you have stress urinary incontinence? 5 A. Yes. 6 Q. We'll get to the implant, what your doctors told you. 7 But because you had never had it before, and when you 8 got it in 2016, you think it's because of the Obtape? 9 A. Yes. 10 Q. How old are you now? 11 A. I'm 50. 12 Q. Have you experienced -- like I said, this is -- the 13 nature of these things I have to ask questions. 14 A. I understand. 15 Q. They're usually not asked by strangers. Have you 16 experienced symptoms of menopause? 17 A. No. 18 Q. We'll get to the fourth thing. When did the painful 19 sex start to occur? 20 A. Before the implant or after? 21 Q. I did see a mention of dyspareunia, or pain during sex, 22 before the implant. 23 A. Yes. 24 Q. When did it start? 25 A. Before the implant, my husband would move my organs to Page 31 1 the side. You could see them. So, he would push them 2 back up so he would not hurt me. Because he hurt me 3 when he did not move them when they weren't -- if -- 4 during the process, if he did not move it or -- because 5 I could not move it. If he didn't, I screamed. After 6 the process, it was a very -- after the surgery, it was 7 a very long time, almost six months to a year, before 8 we did have sex again. And when we did, I did not feel 9 that pain. 10 Q. The prolapse was alleviated at that time? 11 A. The prolapse was alleviated at that time. 12 Q. When had the prolapse gotten so bad that it caused you 13 to have painful sex? 14 A. When he could usually push -- we called it a ball. 15 Q. I mean what year. Like in 2004, you had it treated 16 surgically? 17 A. That's when -- 18 Q. Were you suffering through that in 2003 and 2002? 19 A. No. 20 Q. I didn't know how fast this arose. 21 A. In 2004, I would say I met Dr. Met -- well, she was 22 always there. I just hadn't -- she came to me and 23 asked me to do her nails a year -- no. Before she 24 graduated from college. So, that was in March or April 25 of 2004. And while I was doing her nails, I whispered Page 32 1 it to her, I have a pink ball. And I drew a picture of 2 it. And she kind of what. And I said and he pushes it 3 back up in me. And she said well, when -- did you talk 4 to your doctor about it. I said excuse me, no offense 5 to the gentleman, he's a man and he told me I was crazy 6 and my husband would cheat on me, because there was 7 nothing wrong with me. So, we walked out of his 8 office. She said when I get my practice, which should 9 be open in May, I want you to come see me. I waited to 10 see another doctor until I saw her. By then, if I 11 stood up, if I wore pants, you could see this ball. 12 So, I wore dresses a lot. And she examined me then. 13 She said I want you to stand up. And I stood up. And 14 she poked it and she said that's your bladder. And she 15 said this is your uterus, and this is your cervix, and 16 they're all like three balls on top of each other. And 17 that's when she said that's the pain you're feeling 18 when you're having sex. How long has this been going 19 on. I said just last month when we first saw it. In 20 April is when we first really saw it and first really 21 started running from him in the bedroom, because I 22 didn't want him to touch me. 23 Q. And this Dr. Metcalf, you met her while she was still 24 in training? 25 A. I met her while she was in -- she was -- yes, she was Page 33 1 in training or -- 2 Q. Residency or fellowship? 3 A. Yes. 4 Q. And you started treating with her when she finished 5 that? 6 A. When she finished that, she opened her clinic. 7 Q. What was her specialty? 8 A. Gyn -- ob/gyn. 9 Q. You stopped seeing her at some point? 10 A. I stopped seeing her around 2008 or 2009. 2008 I 11 believe. I -- the drive to her from where I stay is 12 almost an hour and a half. When my area, the city I 13 live in, Brownstown, is a very -- a community of 14 everything. So, I can ride through Brownstown and ride 15 past six to ten gyn's. There was no way I would drive 16 to Ferndale or Farmington just to see a doctor. So, I 17 let her know I'm going to find someone closer to home, 18 because the drive alone, then I got to give you a 19 co-pay. That's gas on gas. I just couldn't afford 20 that. 21 Q. Do you still communicate with Dr. Metcalf now? 22 A. I haven't in a while. 23 Q. Who was the doctor that told you there was nothing 24 wrong with you, even though your organs were hanging 25 out visibly? 9 (Pages 30 - 33) Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00478-CDL Document 32-4 Filed 07/25/16 Page 8 of 13 Page 34 1 A. I have no idea. I don't remember his name. Once he 2 started talking, he sounded as if -- he sounded like 3 Charlie Brown's teacher when he started talking. I 4 heard nothing. But what, okay, bye, I'm leaving. And 5 Melvin followed me. I'm gone. Let's go. Because to 6 tell me I'm crazy, you don't know what I'm feeling. 7 Q. Was he a regular doctor? Somebody in the ER? 8 A. He was -- we went to -- the clinic was on Kercheval in 9 Grosse Pointe. And there's some clinics, when you walk 10 in, whatever doctor is available, that's the doctor you 11 see. And he was just one of the doctors there. And 12 when they -- he walked in and he said his name. And he 13 said well, I looked over your records, and I see what 14 you're -- you know, I told him what's going on. And he 15 just started talking without even examining. You know, 16 what you're feeling, that's crazy. He's going to cheat 17 on you. You know, what's wrong with you kind of. He 18 made me feel like I was -- really like I was crazy. 19 Maybe I'm not feeling this. No, I am feeling this. 20 Q. And then so you then started treating with Dr. Waters. 21 And she found out what was wrong -- 22 A. Dr. Metcalf. 23 Q. I'm sorry. You're Mrs. Waters. Dr. Metcalf. She 24 treats you. And did there come a time that she said 25 how she was going to treat your prolapse? Page 35 1 A. Yes. 2 Q. And what did she say to you? 3 A. She said -- she asked me was I concerned about having 4 babies. And I told her yes. We wanted a baby. And 5 that's when she said well, with everything prolapse, 6 that's not going to be possible. We're going to have 7 to do a hysterectomy. And she gave me the urologist's 8 card and said I want you to go see him, because I can't 9 do -- I can't do the part that he needs to do, with 10 everything falling. She said even if we put the 11 bladder back in place, the muscle is completely gone. 12 So, the other two can pull it right back down. So, we 13 have to remove those to save that. 14 Q. Did she tell you that the Obtape had anything to do 15 with fixing the prolapse? 16 A. She said that it would put it back in place. So, yeah. 17 Q. And there are mesh products to treat pelvic organ 18 prolapse. But Obtape is to treat stress urinary 19 incontinence. Did they ever make that distinction to 20 you? Did your doctors ever explain that? 21 MS. EARNEST: Object to form. I object to 22 the form of the question. She's already testified as 23 to what she said, Dr. Metcalf said. 24 BY MR. AUCIELLO: 25 Q. Well, tell me specifically what Dr. Metcalf said about Page 36 1 the Obtape and how it would alleviate your problems. 2 A. She said that he would put -- I don't recall her 3 calling it a tape. She said that he would put your 4 bladder like back up, so you don't have to worry about 5 the pain or peeing on yourself anymore. So, when I 6 went to the urologist, that's what my hopes were. You 7 could fix me. Put me back -- you know, put it back in 8 place. 9 Q. And that was Dr. -- how do you pronounce his name; do 10 you know? F-e-s-s-e-h-a, Fesseha? 11 A. I never even called his name. 12 Q. Okay. 13 A. When I saw it on paper, I just never called him by 14 name. 15 Q. Okay. We talked -- that was the pain during sex that 16 you had before the procedure. You then started to tell 17 me you didn't have sex for six months to a year after 18 the procedure? 19 A. Right. 20 Q. When you resumed sexual activity, was it painful? 21 A. Yes. 22 Q. Immediately? 23 A. Not immediately, no. It was okay for a while. Then he 24 said I can feel it. And I told him I can feel you 25 touching it. And then that became painful. And then Page 37 1 he would say I'm raw. My skin is raw. And sometimes 2 there would be blood in the bed. And we thought maybe 3 we had started back too soon. So, we stopped. 4 Q. Now, when he said -- it was painful for your husband? 5 A. Yes. 6 Q. Okay. 7 A. He said he would be raw. His skin would be raw. 8 Q. Your husband would be raw? 9 A. Yes. 10 Q. Were you feeling pain at that time? 11 A. Sharp jabs when I -- I assumed he was touching it, 12 because I felt it. I could feel it then. 13 Q. By it, you mean the mesh or the tape? 14 A. Yes, the -- yeah. I called it a slingshot, but the 15 mesh. 16 Q. You called it a sling? 17 A. Yeah. 18 Q. When you touched yourself, could you feel the sling? 19 A. No. 20 Q. But your husband believes he could feel it during sex? 21 A. Yes. 22 Q. And when was this -- you said other things started in 23 2005. When did this start? 24 A. That was in around 2005 when we started back having sex 25 again. The first time, we were so gentle. We were 10 (Pages 34 - 37) Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00478-CDL Document 32-4 Filed 07/25/16 Page 9 of 13 Page 38 1 actually scared. So, it was kind of a fail. Then the 2 second time we tried is when he said I feel that thing. 3 And then the third time we tried he said okay, I'm raw, 4 my skin is tender. And the fourth time is when I said 5 something is -- you hitting something, stop, you know. 6 Let's try another position. And then we started seeing 7 little spots. Not a bed full of blood, but like little 8 spots in the bed, or he would have blood on him. We 9 didn't know if it was him bleeding or me bleeding. And 10 we stopped for a while. 11 Q. When this happened in 2005 though, this is something 12 that he could feel the sling? 13 A. Uh-huh. 14 Q. And you believed it was the sling. Did you go to 15 Dr. Metcalf and ask her why this is happening? 16 A. No. Because I just assumed that it was the sling and 17 maybe we were starting too soon or we had did something 18 wrong. Maybe we were in the wrong position. So, I 19 didn't really rush into hey, something is wrong with 20 me. I just figured okay, you know what, we're starting 21 too soon. Let's give it more time to heal. 22 Q. Did you keep on in six months and try again? 23 A. We waited a couple months. And it wasn't as painful. 24 And I mean, it wasn't every time either. We knew okay, 25 this position that hurts. Let's try a different Page 39 1 position. If it doesn't hurt this way, this is the way 2 we're going to do this. 3 Q. But in 2005, you knew the sling was causing you to have 4 pain during sex? 5 A. Yes. 6 MS. EARNEST: Object to form. 7 BY MR. AUCIELLO: 8 Q. But you didn't ask any of your doctors about it, or 9 just -- 10 A. No. Because I assumed that it was -- I just -- I'm not 11 going to run to the doctor. Okay, you know what, let's 12 not do it this way. Let's just kind of lay back and 13 let this thing heal. Maybe I'm not healed completely. 14 I just didn't -- 15 Q. Did it continue into 2006? 16 A. Not as bad. 17 Q. When you say not as bad, I have to -- 18 A. I understand. 19 Q. It's personal and I don't want to get in great detail, 20 but if I don't get in detail, I might not know what 21 you're saying. It could be not as bad because you 22 changed positions or methods of having intercourse. Or 23 it's not as bad because it got better. So, you need to 24 be a little more specific. 25 A. Not as bad because we changed methods and we changed Page 40 1 positions. And not as bad because we had stopped so 2 much. We were a new married couple and we were not 3 having sex that much at all. 4 Q. But when you did have sex, say in 2006, it was still 5 painful, just not as bad because of the positions you 6 changed? 7 A. Yes. 8 Q. Did you think that maybe this shouldn't be happening 9 and the sling shouldn't be causing my pain, so I should 10 go see a doctor then? 11 MS. EARNEST: Objection, asked and answered. 12 MR. AUCIELLO: I don't think I asked about 13 2006. 14 A. I didn't think -- I thought maybe it shouldn't be 15 happening. But I didn't think go back to the doctor. 16 I didn't think running back over there again to start 17 this all over again. I just didn't want to do it 18 again. 19 BY MR. AUCIELLO: 20 Q. Were you treating with a gyn, any gyn, during 2005 and 21 2006? 22 A. I still saw Dr. Metcalf. I still saw her periodically 23 after surgery exams. 24 Q. But even when you would see her for normal visits, you 25 didn't bring this up? Page 41 1 A. I didn't see her for normal visits. Just the 2 after-surgery exams. If I wasn't feeling bad, I did 3 not go see her. 4 Q. Did you see any doctor for regular check-ups? 5 A. No. 6 Q. Did you get feminine check-ups, pap smears, things like 7 that? 8 A. After the surgery and after my post-op, I guess they 9 call it exam, she told me I didn't have to see her 10 because I didn't have a -- 11 Q. You had a hysterectomy? 12 A. Right. 13 Q. When did you first start -- after you got done with the 14 surgery, recovery, finished seeing Dr. Metcalf, when 15 did you next see a doctor for anything? 16 A. I saw the urologist. He did his post-op exam. I 17 didn't tell him anything. I don't remember when I saw 18 her next. 19 Q. Okay. But after you got done seeing -- you got done 20 with Dr. Metcalf and Dr. Fesseha, however his name is 21 pronounced. You're done with post-op visits. All that 22 is over with. When did you see a doctor after that? 23 A. I believe in 2007. 24 Q. And which doctor was that? 25 A. That would have been Dr. Metcalf. 11 (Pages 38 - 41) Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00478-CDL Document 32-4 Filed 07/25/16 Page 10 of 13 Page 42 1 Q. So, you went back to Dr. Metcalf in 2007? 2 A. Yes. 3 Q. What brought you back to Dr. Metcalf in 2007? 4 A. A yeast infection. 5 Q. And in 2007, did you ask Dr. Metcalf about the sling 6 causing pain during sex? 7 A. No, not in 2007. There was a lot going on in our 8 household. And so, we kind of talked more about what 9 was going on with me. And she probably saw it in my 10 face that I was having some issues. And I told her 11 what was going on personal. We didn't get into the 12 sling. That wasn't even something I thought about 13 then. 14 Q. Is that about the time your husband left? 15 A. He lost his job. My father died. My husband left. I 16 lost my house. I lost my job. 17 Q. Did Dr. Metcalf -- and I have some medical records, but 18 I don't think they're anywhere near complete. Did she 19 do a vaginal exam? 20 A. Yes. 21 Q. Did she report to you anything unusual? 22 A. Just you have a yeast infection, let me give you some 23 medication. 24 Q. At or around that exam, did you say, you know, my 25 husband can feel something, or we have to change Page 43 1 positions because he can feel something and it hurts? 2 Nothing, no conversation like that? 3 A. No. My husband is a jackass and he's getting on my 4 nerves. 5 Q. That could be true in addition to him feeling 6 something, but -- 7 A. No. 8 Q. Do you still have pain during sex? 9 A. I haven't had sex all this year. 10 Q. Last year, did you have pain during sex? 11 A. I had an aneurysm in my aorta last year. I had sex 12 once. And it was with my husband. And he was so 13 extremely gentle because he didn't want my heart to -- 14 so, there was no pain that I can actually remember 15 because of the gentleness. 16 Q. Was it an abdominal aortic aneurysm? 17 A. My aorta dissected. 18 Q. Has that been treated? 19 A. I'm still being treated for that. 20 Q. But you have not had surgery to repair that? 21 A. No. 22 Q. Who is treating you for that? 23 A. Dr. Judy Sorovitz. 24 Q. How do you spell Sorovitz? 25 A. S-o-r-o -- S-o-r-o-v-i-t-z, I think. Page 44 1 Q. Where does she practice out of? 2 A. Brownstown. 3 Q. Okay. So, to make sure I understand, because of your 4 situation, you haven't had intercourse this year. But 5 last year, you had intercourse with your husband, and 6 it didn't hurt, but he was very gentle? 7 A. He was very, very gentle. 8 Q. Did it hurt before that? 9 A. Yes. 10 Q. And are we still talking like 2015? 11 A. 2013, 2014, '14. 12 Q. All right. Are you saying that any time you have sex, 13 regardless of how often, if it's not very gentle, it 14 will cause pain? 15 A. It hurts. 16 Q. Is that a fair way to describe it? 17 A. Yes. 18 Q. And to date, as we sit here, you have not inquired of a 19 doctor about why? 20 A. No. 21 Q. You mentioned past bladder infections. Are we talking 22 about anything different than what we were talking 23 about with the yeast infections and the bacterial 24 vaginosis? 25 A. Yes. The -- well, the bladder infections -- I never Page 45 1 had a bladder infection before the sling. After the 2 sling, when I first experienced a bladder infection, I 3 believe that was in 2006. I don't know if you've ever 4 experienced a bladder infection, but that is a very 5 painful -- you can't go. So, I immediately went to the 6 doctor, and they told me I had a urinary tract 7 infection. Those were not so often, but I did have 8 them maybe once a year. 9 Q. Okay. 10 A. I -- they gave me self-help information. You know, 11 drink a lot of cranberry, drink a lot of water. So, I 12 do that. I don't drink anything carbonated to this 13 day. I don't drink juices or pops or anything like 14 that. 15 Q. And how frequently do you have the urinary tract 16 infections? 17 A. I haven't had one since 2014. 18 Q. And how many did you have before 2014? At one point 19 you said once a year? 20 A. It was about once a year, yes. 21 Q. And why did you believe that the Obtape was causing 22 your urinary tract infections? 23 A. I didn't have them before the tape. 24 Q. Do you think that you're in your thirties before the 25 tape, you're in your forties after the tape, that other 12 (Pages 42 - 45) Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00478-CDL Document 32-4 Filed 07/25/16 Page 11 of 13 Page 66 1 A. I remember that because she asked me was my husband 2 circumcised. And I told her he was not. I've never 3 seen that record, but I remember talking to her. 4 Q. You remember going to that doctor visit? 5 A. Yes. 6 Q. And I pulled the record because she diagnosed the 7 problem as being a yeast infection. 8 A. Okay. 9 Q. Did you have any discussions with her about how yeast 10 infections could cause pain during sexual intercourse? 11 A. No. I just told her it hurt badly. And when she 12 diagnosed me, she -- when she did the testing on me, 13 she saw how severe it was. 14 Q. How severe the infection was? 15 A. Yes. 16 Q. And was there any discussion about the pain during 17 sexual intercourse, other than the vaginal irritation 18 after sex? It says vaginal irritation after sex. 19 A. No, there was no discussion, other than me telling her, 20 when she asked what are you feeling, I told her it 21 hurts. 22 Q. But by this time, your husband had reported being raw 23 and being able to feel the sling during sex? 24 A. Yes. That was after we separated. 25 Q. Was that a different man you were talking about? Page 67 1 A. No. I've only been with my husband in the last -- 2 Q. My question is did you raise with Dr. Crane the fact 3 that your husband, or your partner, could feel the 4 sling during sex? 5 A. No. 6 Q. Did Dr. Crane do a vaginal examination? 7 A. Yes. 8 Q. Did she report to you anything unusual, other than the 9 fact that you had an infection? 10 A. And that I was -- she said it looks red and swollen, or 11 red and inflamed. 12 Q. Did she say -- did she tell you why she was asking you 13 whether your husband was circumcised or not? 14 A. She said sometimes an uncircumcised man can -- 15 Q. Can? 16 A. It's likely that the infection was -- well, he could be 17 irritated or he could irritate me. 18 Q. Is that to the infection or just because he was 19 uncircumcised? 20 A. Because it was so severe. 21 Q. Because the infection was so severe? 22 A. Yes. 23 Q. Okay. In her history, or this handwritten history, 24 maybe it's wrong, I don't know, but she mentions the 25 fact that you had the hysterectomy and the foot Page 68 1 surgery. She said something about breasts in August of 2 2007. Did you have a procedure relating to your 3 breasts? 4 MS. EARNEST: When? 5 BY MR. AUCIELLO: 6 Q. I don't know if it's a mistake or referring to 7 something else. I'm just looking to see if you had any 8 other medical procedures. 9 A. Breast aug, no, that's not me. 10 Q. It just says that word. It didn't say surgery or it 11 doesn't say anything. But it's in a line of all the 12 other surgeries that you had. 13 A. I see it. 14 MS. EARNEST: That's not you? 15 THE WITNESS: No. 16 BY MR. AUCIELLO: 17 Q. So, it's a mistake? 18 A. Uh-huh. 19 Q. It says you were on Laprinosil (phonetic). 20 A. Laprinosil. 21 Q. For hypertension? 22 A. Yes. 23 Q. Did you have a follow-up with Dr. Crane after that? 24 A. Yes. 25 Q. Did he report any improvement? Did it get better? Page 69 1 A. It did. 2 Q. Any further conversation about discomfort during sex, 3 when you saw her again? 4 A. Not at that time, no. 5 Q. You had mentioned earlier that you had your ovary 6 removed? 7 A. Yes. 8 Q. Was that in 2005? 9 A. No. That was in '11, in '11. 10 Q. So, if the doctors wrote it down as 2005, they're 11 wrong? It's a mistake in the record? 12 A. Yes. 13 Q. Did you have complications after that procedure? 14 A. After the ovary was removed? 15 Q. After the ovary was removed. 16 A. No. 17 Q. Did you complain, after the surgery, that it caused you 18 constipation or left pelvic pain? 19 A. No. 20 Q. Did you mention a Dr. Katherine Foster? Do you know 21 who Katherine Foster is? 22 A. I don't know Dr. Foster. 23 Q. It appears, from a record, you saw a Dr. Finazzo in 24 February of 2009. Do you remember Dr. Finazzo? 25 A. He's the office doctor, or the office is in his name. 18 (Pages 66 - 69) Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00478-CDL Document 32-4 Filed 07/25/16 Page 12 of 13 Page 74 1 These are the same addresses? 2 A. Yes. 3 Q. And then your current address is the same, correct? 4 A. Yes. 5 Q. We won't put it on the record, but the social security 6 number is accurate on here? 7 A. Yes. She's Brownstown, not Brownstone. 8 Q. Is it one word, Brownstown? 9 A. Yes. 10 Q. Where is Brownstown in relation to Detroit? 11 A. Brownstown is downriver. I'm maybe 20 minutes from 12 Ohio. 13 Q. Oh, okay. So, you're well downriver? 14 A. Yes. 15 Q. Okay. Going to page 5, does that accurately list all 16 of your employers? I believe you told me just about 17 all of those? 18 A. Yes. 19 Q. And on page 17 -- I'm sorry -- question 17 on page 7. 20 A. Okay. 21 Q. It says yes, you have declared bankruptcy since the 22 date of your initial Obtape surgery? 23 A. I did. 24 Q. And when was that though? 25 A. I filed bankruptcy in the earlier part of 2011, and it Page 75 1 was discharged in July of 2011. 2 Q. Because in the next question it says 2001. Is that a 3 typo? It should be 2011? 4 A. That is a typo. It should be 2011. 5 Q. Do you know -- did you do that yourself, or did you 6 retain counsel for that? 7 A. I retained counsel. 8 Q. And do you know whether this claim you have against 9 Mentor was listed as an asset in that bankruptcy? 10 A. It was not, because I didn't know about this -- about 11 this until after. 12 Q. How did you learn about this claim after 2011? 13 A. I was watching T.V. in the latter part of 2011, and I 14 saw -- well, I was washing dishes and listening to the 15 television. And the questions came up. And I stopped 16 and looked at the television. They're talking about 17 me. 18 Q. What program was on the television? 19 A. CSI. 20 Q. Was it part of CSI or was it a commercial? 21 A. It was a commercial. 22 Q. From who? 23 A. From the law firm. 24 Q. You pointed at -- 25 A. Her law firm. Page 76 1 Q. It was from your current counsel's law firm? 2 A. Yes. 3 Q. So, in 2011, you saw a commercial during a CSI episode, 4 and that's when you attributed your problems to Obtape? 5 A. Yes. I stopped and rewound the television. You know, 6 you have your DVR. And I listened to it again. And I 7 wrote the number down and I called it. And the young 8 lady immediately sent me out documentation. 9 Q. I don't want to know about your communications you had 10 with the lawyer, whether it's verbal or written but -- 11 A. Okay. 12 Q. But did the commercial ever say that yeast infections 13 were caused by Obtape? 14 A. The commercial says have you -- are you having or have 15 you had chronic infections. Are you having pain with 16 sex. Are you having incontinence. If you are 17 answering yes to these questions, you could have a 18 problem with a transvaginal mesh. Please call this 19 number. 20 Q. But you had been having pain with sex for five years, 21 at least? 22 A. Yes. 23 Q. And you knew it was caused by the sling, because you 24 felt it? 25 A. I didn't know at first. I assumed. And when I heard Page 77 1 that commercial, that kind of just -- light bulb, 2 that's you. 3 MS. EARNEST: And again, I object to your 4 characterization of what she said about what she 5 thought was the cause of painful sex early on. 6 BY MR. AUCIELLO: 7 Q. In 2005 and '06, you assumed the sling was causing pain 8 with sex? 9 A. Yes. 10 Q. But you didn't find about the litigation until 2011? 11 A. Until 2011. 12 Q. All right. Going back to the document. So, the 2001 13 on the bankruptcy is in error? 14 A. That's an error. 15 Q. It should be 2011? 16 A. It should be 2011. 17 Q. And then on page -- okay. I believe you've already 18 talked about all these doctors. Under -- on page 13 of 19 the plaintiff's fact sheet, the medications, are those 20 the only medications you currently take? 21 A. I'm on a different set now. I don't take Benicar 22 anymore. 23 Q. Is it another medication for high blood pressure? 24 A. Yes. 25 Q. Do you take any medication, other than whatever you 20 (Pages 74 - 77) Veritext Legal Solutions 800-567-8658 973-410-4040 Case 4:13-cv-00478-CDL Document 32-4 Filed 07/25/16 Page 13 of 13 Exhibit B Case 4:13-cv-00478-CDL Document 32-5 Filed 07/25/16 Page 1 of 24 Case 4:13-cv-00478-CDL Document 32-5 Filed 07/25/16 Page 2 of 24 Case 4:13-cv-00478-CDL Document 32-5 Filed 07/25/16 Page 3 of 24 Case 4:13-cv-00478-CDL Document 32-5 Filed 07/25/16 Page 4 of 24 Case 4:13-cv-00478-CDL Document 32-5 Filed 07/25/16 Page 5 of 24 Case 4:13-cv-00478-CDL Document 32-5 Filed 07/25/16 Page 6 of 24 Case 4:13-cv-00478-CDL Document 32-5 Filed 07/25/16 Page 7 of 24 Case 4:13-cv-00478-CDL Document 32-5 Filed 07/25/16 Page 8 of 24 Case 4:13-cv-00478-CDL Document 32-5 Filed 07/25/16 Page 9 of 24 Case 4:13-cv-00478-CDL Document 32-5 Filed 07/25/16 Page 10 of 24 Case 4:13-cv-00478-CDL Document 32-5 Filed 07/25/16 Page 11 of 24 Case 4:13-cv-00478-CDL Document 32-5 Filed 07/25/16 Page 12 of 24 Case 4:13-cv-00478-CDL Document 32-5 Filed 07/25/16 Page 13 of 24 Case 4:13-cv-00478-CDL Document 32-5 Filed 07/25/16 Page 14 of 24 Case 4:13-cv-00478-CDL Document 32-5 Filed 07/25/16 Page 15 of 24 Case 4:13-cv-00478-CDL Document 32-5 Filed 07/25/16 Page 16 of 24 Case 4:13-cv-00478-CDL Document 32-5 Filed 07/25/16 Page 17 of 24 Case 4:13-cv-00478-CDL Document 32-5 Filed 07/25/16 Page 18 of 24 Case 4:13-cv-00478-CDL Document 32-5 Filed 07/25/16 Page 19 of 24 Case 4:13-cv-00478-CDL Document 32-5 Filed 07/25/16 Page 20 of 24 Case 4:13-cv-00478-CDL Document 32-5 Filed 07/25/16 Page 21 of 24 Case 4:13-cv-00478-CDL Document 32-5 Filed 07/25/16 Page 22 of 24 Case 4:13-cv-00478-CDL Document 32-5 Filed 07/25/16 Page 23 of 24 Case 4:13-cv-00478-CDL Document 32-5 Filed 07/25/16 Page 24 of 24 Exhibit C Case 4:13-cv-00478-CDL Document 32-6 Filed 07/25/16 Page 1 of 7 U.S. Bankruptcy Court Eastern District of Michigan (Detroit) Bankruptcy Petition #: 11-47931-tjt CLOSED Assigned to: Judge Thomas J. Tucker Chapter 7 Voluntary No asset Debtor disposition: Standard Discharge Date filed: 03/23/2011 Date terminated: 07/29/2011 Debtor discharged: 07/25/2011 341 meeting: 05/26/2011 Deadline for objecting to discharge: 07/25/2011 Deadline for financial mgmt. course: 05/23/2011 Debtor Lillie Marie Waters Brownstown, MI 48183 WAYNE-MI SSN represented by Steven R. Makowski 2241 Oak Street Wyandotte, MI 48192 (734) 285-6500 Email: lkmakowski@sbcglobal.net Trustee Charles L. Wells, III 903 N. Opdyke Rd. #A2 Auburn Hills, MI 48326 (248) 276-0285 Filing Date # Docket Text 03/23/2011 1 (3 pgs) Chapter 7 Voluntary Petition : Fee Amount $299. Filed by Lillie Marie Waters (Makowski, Steven) (Entered: 03/23/2011) 03/23/2011 2 Statement of Social Security Number Filed by Debtor Lillie Marie Waters. (Makowski, Steven) (Entered: 03/23/2011) 03/23/2011 3 (3 pgs; 2 docs) Exhibit D: Debtor has filed a Certificate of Budget and Credit Counseling Attached. Filed by Debtor Lillie Marie Waters. (Attachments: 1 Certificate of Counseling) (Makowski, Steven) (Entered: 03/23/2011) 4 (9 pgs) Chapter 7 Statement of Current Monthly Income and Means Test Calculation - Form 22A . Filed by Page 1 of 6CM/ECF - LIVE DATABASE 7/11/2016https://ecf.mieb.uscourts.gov/cgi-bin/DktRpt.pl?330125600019482-L_1_0-1 Case 4:13-cv-00478-CDL Document 32-6 Filed 07/25/16 Page 2 of 7 03/23/2011 Debtor Lillie Marie Waters. (Makowski, Steven) (Entered: 03/23/2011) 03/23/2011 5 (10 pgs) Statement of Financial Affairs Filed by Debtor Lillie Marie Waters. (Makowski, Steven) (Entered: 03/23/2011) 03/23/2011 6 (2 pgs) Statement of Intent. Filed by Debtor Lillie Marie Waters. (Makowski, Steven) (Entered: 03/23/2011) 03/23/2011 7 (29 pgs) Schedules A-J Filed by Debtor Lillie Marie Waters. (Makowski, Steven) (Entered: 03/23/2011) 03/23/2011 8 (1 pg) Declaration Concerning Debtor(s) Schedules Filed by Debtor Lillie Marie Waters. (Makowski, Steven) (Entered: 03/23/2011) 03/23/2011 9 (1 pg) Summary of Schedules Filed by Debtor Lillie Marie Waters. (Makowski, Steven) (Entered: 03/23/2011) 03/23/2011 10 (1 pg) Statistical Summary of Certain Liabilities Filed by Debtor Lillie Marie Waters. (Makowski, Steven) (Entered: 03/23/2011) 03/23/2011 11 (1 pg) Bankruptcy Petition Cover Sheet Filed by Debtor Lillie Marie Waters. (Makowski, Steven) (Entered: 03/23/2011) 03/23/2011 12 (1 pg) Disclosure of Compensation of Attorney Filed by Debtor Lillie Marie Waters. (Makowski, Steven) (Entered: 03/23/2011) 03/23/2011 13 (2 pgs) Notice to Individual Consumer Debtor Under 342(b) of the Bankruptcy Code delivered to: Debtor Lillie Marie Waters. (Makowski, Steven) (Entered: 03/23/2011) 03/23/2011 14 (2 pgs) Meeting of Creditors with 341(a) meeting to be held on 04/28/2011 at 02:30 PM at Room 315, 211 W. Fort St. Bldg., Detroit 341. Objections for Discharge due by 06/27/2011. (admin, ) (Entered: 03/23/2011) 03/24/2011 Flags Set CASECHECKED. Debtor's Financial Management Course Certificate is Due Sixty (60) Days from the 341 Meeting of Creditors. (kthom) (Entered: 03/24/2011) Page 2 of 6CM/ECF - LIVE DATABASE 7/11/2016https://ecf.mieb.uscourts.gov/cgi-bin/DktRpt.pl?330125600019482-L_1_0-1 Case 4:13-cv-00478-CDL Document 32-6 Filed 07/25/16 Page 3 of 7 03/25/2011 15 (4 pgs) BNC Certificate of Mailing - Meeting of Creditors. (RE: related document(s)14 Meeting (Chapter 7)) No. of Notices: 45. Service Date 03/25/2011. (Admin.) (Entered: 03/26/2011) 03/25/2011 Receipt of Chapter 7 Filing Fee - $299.00 by NC. Receipt Number 00537105. (Admin.) (Entered: 03/26/2011) 03/28/2011 Receipt of Voluntary Petition (Chapter 7)(11-47931) [misc,volp7at] ( 299.00) filing fee. Receipt number 11421, amount . (lh) (Entered: 03/28/2011) 04/18/2011 16 THIS PLEADING HAS BEEN STRICKEN AND CANNOT BE VIEWED PER ORDER OF THE COURT DATED 4/27/11. Cover Sheet for Amendments to Schedules and or Statements filed Re: Filed by Debtor Lillie Marie Waters. (Makowski, Steven) Modified on 4/27/2011 (dmc). (Entered: 04/18/2011) 04/19/2011 17 (2 pgs) Notice of Deficient Pleading: Amended Document (Schedule F) Missing and Proof of Service Missing . (RE: related document(s)16 Cover Sheet for Amendments to Schedules and or Statements filed by Debtor Lillie Marie Waters) Amended Document Missing or Non-Compliant Due on 4/26/2011. Proof of Service Due on 4/26/2011. (slh) (Entered: 04/19/2011) 04/21/2011 18 (3 pgs) BNC Certificate of Mailing. (RE: related document (s)17 Deficiency Notice (BK)) No. of Notices: 1. Service Date 04/21/2011. (Admin.) (Entered: 04/22/2011) 04/27/2011 19 Order of the Court to Strike: This pleading is stricken from the record because of failure to comply with deficiency notice (related documents Cover Sheet for Amendments to Schedules and or Statements). So Ordered by /s/ Judge Thomas J. Tucker.(related document(s)16)(Vozniak, Mary) This Notice of Electronic Filing is the Official ORDER for this entry. No ORDER is attached. (Entered: 04/27/2011) Page 3 of 6CM/ECF - LIVE DATABASE 7/11/2016https://ecf.mieb.uscourts.gov/cgi-bin/DktRpt.pl?330125600019482-L_1_0-1 Case 4:13-cv-00478-CDL Document 32-6 Filed 07/25/16 Page 4 of 7 04/29/2011 Continuance of Meeting of Creditors on 5/12/2011 at 04:00 PM at Room 315, 211 W. Fort St. Bldg., Detroit 341 (Wells, Charles) (Entered: 04/29/2011) 05/02/2011 20 (1 pg) Request for Notice by . (Singh, Ramesh) (Entered: 05/02/2011) 05/10/2011 21 (2 pgs) Stipulation By and Between Charles L. Wells, III, Chapter 7 Trustee and Steven Makowski, Attorney for Debtor Re: Adjournment of Meeting of Creditors and Extension of Bar Dates and Proposed Order. Filed by Trustee Charles L. Wells III. (Wells, Charles) (Entered: 05/10/2011) 05/10/2011 22 (1 pg) Order Granting Stipulation Adjourning First Meeting of Creditors and Extending Bar Dates (related documents Stipulation) (RE: related document(s)21 Stipulation filed by Trustee Charles L. Wells). 341(a) meeting to be held on 5/26/2011 at 04:00 PM at Room 315, 211 W. Fort St. Bldg., Detroit 341. (cw) (Entered: 05/10/2011) 05/13/2011 Continuance of Meeting of Creditors on 5/26/2011 at 04:00 PM at Room 315, 211 W. Fort St. Bldg., Detroit 341 (Wells, Charles) (Entered: 05/13/2011) 05/17/2011 23 (26 pgs; 5 docs) Cover Sheet for Amendments to Schedules and or Statements filed Re: Schedule B, Schedule D, Schedule F, Schedule J, Fee Amount $26 Filed by Debtor Lillie Marie Waters. (Attachments: 1 Amended Schedule B2 Amended Schedule D3 Amended Schedule F.4 Amended Schedule J) (Makowski, Steven) (Entered: 05/17/2011) 05/18/2011 24 (2 pgs) Notice of Deficient Pleading: Proof of Service Missing, . (RE: related document(s)23 Cover Sheet for Amendments to Schedules and or Statements filed by Debtor Lillie Marie Waters) Proof of Service Due on 5/25/2011. (vf) (Entered: 05/18/2011) 05/19/2011 25 (1 pg) Certificate of Service Filed by Debtor Lillie Marie Waters. (Makowski, Steven) (Entered: 05/19/2011) 05/19/2011 Receipt of Amendment Fee - $26.00 by TS. Receipt Number 00538115. (Admin.) (Entered: 05/20/2011) Page 4 of 6CM/ECF - LIVE DATABASE 7/11/2016https://ecf.mieb.uscourts.gov/cgi-bin/DktRpt.pl?330125600019482-L_1_0-1 Case 4:13-cv-00478-CDL Document 32-6 Filed 07/25/16 Page 5 of 7 05/20/2011 Receipt of Cover Sheet for Amendments to Schedules and or Statements(11-47931-tjt) [misc,amdsch] ( 26.00) filing fee. Receipt number 00538115, amount . (Boice) (Entered: 05/20/2011) 05/24/2011 26 (1 pg) Notice of Requirement to Complete Course in Financial Management . (dmc) (Entered: 05/24/2011) 05/26/2011 27 (2 pgs) BNC Certificate of Mailing. (RE: related document (s)26 Notice of Requirement to Complete Course in Financial Management) No. of Notices: 1. Service Date 05/26/2011. (Admin.) (Entered: 05/27/2011) 05/31/2011 28 (2 pgs; 2 docs) Certification of Completion of Financial Management Course of Filed by Debtor Lillie Marie Waters. (Attachments: 1 Final Certificate) (Makowski, Steven) (Entered: 05/31/2011) 06/01/2011 Meeting of Creditors Held and Concluded on 5/26/2011. Chapter 7 Trustee's Report of No Distribution: I, Charles L. Wells, having been appointed trustee of the estate of the above-named debtor(s), report that I have neither received any property nor paid any money on account of this estate; that I have made a diligent inquiry into the financial affairs of the debtor(s) and the location of the property belonging to the estate; and that there is no property available for distribution from the estate over and above that exempted by law. Pursuant to Fed R Bank P 5009, I hereby certify that the estate of the above-named debtor(s) has been fully administered. I request that I be discharged from any further duties as trustee. Key information about this case as reported in schedules filed by the debtor(s) or otherwise found in the case record: This case was pending for 2 months. Assets Abandoned (without deducting any secured claims): $ 5000.00, Assets Exempt: $ 3075.00, Claims Scheduled: $ 46563.29, Claims Asserted: Not Applicable, Claims scheduled to be discharged without payment (without deducting the value of collateral or debts excepted from discharge): $ 46563.29. (Wells, Charles) (Entered: 06/01/2011) 07/25/2011 29 (2 pgs) Order Discharging Debtor . . (kj) (Entered: 07/25/2011) Page 5 of 6CM/ECF - LIVE DATABASE 7/11/2016https://ecf.mieb.uscourts.gov/cgi-bin/DktRpt.pl?330125600019482-L_1_0-1 Case 4:13-cv-00478-CDL Document 32-6 Filed 07/25/16 Page 6 of 7 07/27/2011 30 (4 pgs) BNC Certificate of Mailing - Order of Discharge. No. of Notices: 43. Service Date 07/27/2011. (Admin.) (Entered: 07/28/2011) 07/29/2011 Final Decree: The bankruptcy estate has been fully administered. The bankruptcy court has decreed that Trustee Charles L. Wells is discharged as trustee of the estate and the bond is cancelled and the chapter 7 case is closed. . (Scates, M) (Entered: 07/29/2011) PACER Service Center Transaction Receipt 07/11/2016 18:52:57 PACER Login: te0441:2768340:0 Client Code: 012813-002205/cme Description: Docket Report Search Criteria: 11-47931-tjt Fil or Ent: filed Doc From: 0 Doc To: 99999999 Term: included Format: html Page counts for documents: included Billable Pages: 3 Cost: 0.30 Page 6 of 6CM/ECF - LIVE DATABASE 7/11/2016https://ecf.mieb.uscourts.gov/cgi-bin/DktRpt.pl?330125600019482-L_1_0-1 Case 4:13-cv-00478-CDL Document 32-6 Filed 07/25/16 Page 7 of 7 Exhibit D Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 1 of 33 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 2 of 33 11-47931-tjt Doc 1 Filed 03/23/11 Entered 03/23/11 16:06:12 Page 2 of 3 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 3 of 33 11-47931-tjt Doc 1 Filed 03/23/11 Entered 03/23/11 16:06:12 Page 3 of 3 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 4 of 33 11-47931-tjt Doc 7 Filed 03/23/11 Entered 03/23/11 16:11:18 Page 1 of 29 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 5 of 33 11-47931-tjt Doc 7 Filed 03/23/11 Entered 03/23/11 16:11:18 Page 2 of 29 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 6 of 33 11-47931-tjt Doc 7 Filed 03/23/11 Entered 03/23/11 16:11:18 Page 3 of 29 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 7 of 33 11-47931-tjt Doc 7 Filed 03/23/11 Entered 03/23/11 16:11:18 Page 4 of 29 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 8 of 33 11-47931-tjt Doc 7 Filed 03/23/11 Entered 03/23/11 16:11:18 Page 5 of 29 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 9 of 33 11-47931-tjt Doc 7 Filed 03/23/11 Entered 03/23/11 16:11:18 Page 6 of 29 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 10 of 33 11-47931-tjt Doc 7 Filed 03/23/11 Entered 03/23/11 16:11:18 Page 7 of 29 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 11 of 33 11-47931-tjt Doc 7 Filed 03/23/11 Entered 03/23/11 16:11:18 Page 8 of 29 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 12 of 33 11-47931-tjt Doc 7 Filed 03/23/11 Entered 03/23/11 16:11:18 Page 9 of 29 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 13 of 33 11-47931-tjt Doc 7 Filed 03/23/11 Entered 03/23/11 16:11:18 Page 10 of 29 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 14 of 33 11-47931-tjt Doc 7 Filed 03/23/11 Entered 03/23/11 16:11:18 Page 11 of 29 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 15 of 33 11-47931-tjt Doc 7 Filed 03/23/11 Entered 03/23/11 16:11:18 Page 12 of 29 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 16 of 33 11-47931-tjt Doc 7 Filed 03/23/11 Entered 03/23/11 16:11:18 Page 13 of 29 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 17 of 33 11-47931-tjt Doc 7 Filed 03/23/11 Entered 03/23/11 16:11:18 Page 14 of 29 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 18 of 33 11-47931-tjt Doc 7 Filed 03/23/11 Entered 03/23/11 16:11:18 Page 15 of 29 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 19 of 33 11-47931-tjt Doc 7 Filed 03/23/11 Entered 03/23/11 16:11:18 Page 16 of 29 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 20 of 33 11-47931-tjt Doc 7 Filed 03/23/11 Entered 03/23/11 16:11:18 Page 17 of 29 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 21 of 33 11-47931-tjt Doc 7 Filed 03/23/11 Entered 03/23/11 16:11:18 Page 18 of 29 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 22 of 33 11-47931-tjt Doc 7 Filed 03/23/11 Entered 03/23/11 16:11:18 Page 19 of 29 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 23 of 33 11-47931-tjt Doc 7 Filed 03/23/11 Entered 03/23/11 16:11:18 Page 20 of 29 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 24 of 33 11-47931-tjt Doc 7 Filed 03/23/11 Entered 03/23/11 16:11:18 Page 21 of 29 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 25 of 33 11-47931-tjt Doc 7 Filed 03/23/11 Entered 03/23/11 16:11:18 Page 22 of 29 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 26 of 33 11-47931-tjt Doc 7 Filed 03/23/11 Entered 03/23/11 16:11:18 Page 23 of 29 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 27 of 33 11-47931-tjt Doc 7 Filed 03/23/11 Entered 03/23/11 16:11:18 Page 24 of 29 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 28 of 33 11-47931-tjt Doc 7 Filed 03/23/11 Entered 03/23/11 16:11:18 Page 25 of 29 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 29 of 33 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 30 of 33 11-47931-tjt Doc 7 Filed 03/23/11 Entered 03/23/11 16:11:18 Page 27 of 29 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 31 of 33 11-47931-tjt Doc 7 Filed 03/23/11 Entered 03/23/11 16:11:18 Page 28 of 29 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 32 of 33 11-47931-tjt Doc 7 Filed 03/23/11 Entered 03/23/11 16:11:18 Page 29 of 29 Case 4:13-cv-00478-CDL Document 32-7 Filed 07/25/16 Page 33 of 33 Exhibit E Case 4:13-cv-00478-CDL Document 32-8 Filed 07/25/16 Page 1 of 8 Tice v. Zimmer Holdings, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 6619143 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2015 WL 6619143 Only the Westlaw citation is currently available. United States District Court, W.D. Michigan, Southern Division. Richard E. TICE, Sandra Tice, Plaintiffs, v. ZIMMER HOLDINGS, INC. et al., Defendants. No. 1:15-cv-134. | Signed Oct. 30, 2015. Attorneys and Law Firms Deborah K. Palmer, Varnum Riddering Schmidt & Howlett LLP, Kalamazoo, MI, Peter A. Smit, Varnum Riddering Schmidt & Howlett LLP, Grand Rapids, MI, for Plaintiffs. Adrienne Franco Busby, Nicholas Blake Alford, Faegre Baker Daniels LLP, Indianapolis, IN, Edward P. Perdue, Dickinson Wright PLLC, Grand Rapids, MI, for Defendants. OPINION ROBERT HOLMES BELL, District Judge. *1 This is an action brought by Plaintiff Richard E. Tice and his wife, Sandra Tice, against Zimmer Holdings, Inc. and its subsidiaries Zimmer, Inc. and Zimmer US, Inc. (collectively, “Zimmer”). Plaintiffs claim that Mr. Tice was injured by Zimmer's product, a hip implant containing components known as the “Zimmer Trilogy Acetabular System Longevity Crosslinked Polyethylene Liner, Zimmer Versys Hip System Femoral Stem, and Zimmer Versys Hip System Femoral Head” (collectively, the “Devices”). (Am. Compl. ¶ 1, ECF No. 17.) On July 15, 2015, the Court issued an opinion and order partially granting Zimmer's motion to dismiss. The fraud and negligent misrepresentation claims in Count V were dismissed for failure to meet the pleading requirements in Rule 9 of the Federal Rules of Civil Procedure, but the Court gave Plaintiffs an opportunity to file an amended complaint. Before the Court is Zimmer's motion to dismiss Counts I and V of the amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Zimmer asserts that the claim in Count I is based on a theory of strict liability which is not recognized in Michigan. Zimmer also contends that the amended claim in Count V fails to state a claim of fraud or negligent misrepresentation. Zimmer also seeks dismissal of the loss-of-consortium claim in Count VI, to the extent that it is derivative of Counts I and V. The motion will be granted in part and denied in part. I. A complaint may be dismissed for failure to state a claim if “ ‘it fails to give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ “ Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). While a complaint need not contain detailed factual allegations, a plaintiff's allegations must include more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). The Court must determine whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679. Although the plausibility standard is not equivalent to a “ ‘probability requirement,’ ... it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678 (quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show [n]’-that the pleader is entitled to relief.” Id. at 679 (quoting Fed.R.Civ.P. 8(a) (2)). II. A. Count I: Strict Liability *2 Zimmer contends that Count I of the amended complaint should be dismissed because it relies on a theory of strict liability, which is not recognized in Michigan. Case 4:13-cv-00478-CDL Document 32-8 Filed 07/25/16 Page 2 of 8 Tice v. Zimmer Holdings, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 6619143 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 “In Michigan, two theories of recovery are recognized in product liability cases; negligence and implied warranty. Strict liability has not been recognized as a third theory of recovery.” Johnson v. Chrysler Corp., 74 Mich.App. 532, 254 N.W.2d 569, 571 (Mich.Ct.App.1977); see also Rodger v. Ford Motor Co., No. 275578, 2008 WL 4646140, at *6 (Mich.Ct.App. Oct.21, 2008) (“Michigan does not recognize strict liability as a theory of recovery in product liability actions.”). Count I alleges that Zimmer is liable for Mr. Tice's injuries because the Devices “were designed, manufactured, promoted, distributed, marketed, and sold by the Defendants in a defective and unreasonably dangerous condition at the time they were placed in the stream of commerce.” (Am. Compl. ¶ 30, ECF No. 17.) In particular, Plaintiffs allege that the Devices contained manufacturing defects and design defects, the Devices were not adequately tested, they were not accompanied by adequate instructions or warnings regarding the risks associated with their use, and Defendants failed to provide adequate warnings about known failures and defects. (Id.) Count I further alleges that Zimmer knew of the dangers and defects in the Devices but it continued to sell them, that a “practical and technically feasible alternative production practice” was available to Zimmer, and that Zimmer knew or should have known of the manufacturing defects and the risk of injury associated with the Devices. In contrast, Count II asserts that Zimmer owed Mr. Tice a duty of reasonable care to provide a safe product, and that Zimmer breached this duty of care by “defectively designing, manufacturing, and/or negligently failing to warn of these defects in the Devices[.]” (Id. at ¶ 42.) In addition, Count III asserts that Zimmer “impliedly warranted that the Devices ... were merchantable, fit and safe for [their] ordinary and intended use.” (Id. at ¶ 45.) Based on the foregoing, it appears that Counts II and III are expressly based on theories of negligence and implied warranty, respectively, which are the only two theories of recovery recognized in Michigan for a product liability claim. Johnson, 254 N.W.2d at 571. Thus, the Court agrees with Zimmer that, to the extent that Count I relies on a different theory (i.e. strict liability), it does not state a claim. On the other hand, Plaintiffs assert that Count I does not “sound” in strict liability and that it “contains the elements required by the statute governing product liability cases such as this one.” (Pls.' Resp. to Mot. to Dismiss 3, ECF No. 22.) Plaintiffs cite Mich. Comp. Laws § 600.2946(2), which provides: In a product liability action brought against a manufacturer or seller for harm allegedly caused by a production defect, the manufacturer or seller is not liable unless the plaintiff establishes that the product was not reasonably safe at the time the specific unit of the product left the control of the manufacturer or seller and that, according to generally accepted production practices at the time the specific unit of the product left the control of the manufacturer or seller, a practical and technically feasible alternative production practice was available that would have prevented the harm without significantly impairing the usefulness or desirability of the product to users and without creating equal or greater risk of harm to others. *3 Mich. Comp. Laws § 600.2946(2). The foregoing statute sets forth certain requirements for a product liability claim against a seller or manufacturer for a production (or design) defect. See id. § 600.2945(i) (defining production to include design). Among other things, a plaintiff must show that a “practical and technically feasible alternative production practice was available” that would have prevented the harm. Id. § 600.2946(2). In Count I, but not in Counts II or III, Plaintiffs allege that a feasible alternative production practice was available to Zimmer. Thus, Count I contains unique allegations that may be necessary to establish liability on Plaintiffs' product liability claim. In its prior opinion, the Court characterized Count I as a strict liability claim to distinguish it from Counts II and III. But it does not necessarily follow that, because Counts II and III rely on other theories of liability, Count I relies solely on a theory of strict liability. Indeed, Plaintiffs' contention in Count I that Zimmer designed defective devices could be construed as relying on a theory of negligence, a theory of implied warranty, or both. See Case 4:13-cv-00478-CDL Document 32-8 Filed 07/25/16 Page 3 of 8 Tice v. Zimmer Holdings, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 6619143 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 Prentis v. Yale Mfg. Co., 421 Mich. 670, 365 N.W.2d 176, 187 (Mich.1984) (noting that in defective design cases, “the standards of liability under the theories of implied warranty and negligence [are] indistinguishable”). Although Count I appears to be duplicative of Counts II and III in many respects, the Court will not dismiss it for failure to state a claim at this stage of the proceedings. Instead, the Court will make clear that Plaintiffs may obtain relief on their product liability claims only under a theory of negligence or implied warranty. To the extent that Count I relies on another theory of liability, such as strict liability, it does not state a claim. B. Count V: Fraud/Negligent Misrepresentation Plaintiffs claim that Zimmer is liable for negligent misrepresentation because it had “actual knowledge of serious risks and danger” associated with the use of the Devices, but it failed to disclose these risks when it had a duty to do so. (Am.Compl.¶ 57.) Specifically, Plaintiffs refer to a recall notice for the Versys Hip System femoral stem, which indicates that the “femoral heads will not seat onto the taper of the hip stem[.]” (Ex. 1 to Am. Compl., ECF No. 17-1.) Plaintiffs also allege that Zimmer willfully or negligently supplied false information to Plaintiffs and the public about the safety, quality, and effectiveness of the Devices, and that Mr. Tice and his physician relied on this information to purchase and use them. Plaintiffs refer to statements in pamphlets for “Zimmer's Total Revision Ability,” including statements in the following exhibits to the amended complaint: Exhibit 2: Through our skilled hands and because of the innovative solutions you can create in response to each situation, patient quality of life is enhanced and restored. Zimmer makes your innovative solutions possible with products designed in partnership with you and in collaboration with the world's finest surgeons and top designers. Because of our dedication to developing and producing the highest-quality orthopaedic products, you can repair, replace, and regenerate with confidence. To be the best and to respond to every unique need. You make that pledge to each patient. We make that pledge to you. Exhibit 3: *4 You're committed to helping patients return to active lives, and Zimmer is committed to bringing you our best products and techniques to make this happen. Exhibit 4: Created by the world's finest surgeons and designers, Zimmer's hip revision products offer complete solutions for needs, expected or unexpected. Exhibit 5: Zimmer acetabular liners provide configurations that address joint reconstruction and stability. Longevity Highly Crosslinked Polyethylene Liners provide for true alternative bearing solutions. Exhibit 6: Construction. Supporting solutions-From greater trochanteric to pelvic and femoral reconstruction. Zimmer has the solutions to support complex hip revision surgery. (Am. Compl. 11-12, ECF No. 17.) Plaintiffs also cite statements about the “Trilogy Acetabular System” from an archived version of Zimmer's website. Exhibit 7: ... Zimmer has a documented history of more than 20 years of clinical success with compression-molded polyethylene .... It addresses the five key factors that impact polyethylene performance: material, processing, design, sterilization, and packaging. ... Modular liners are designed to minimize wear by achieving maximum congruency and optimum polyethylene thickness without compromising range of motion and metal shell thickness. Proven design features. Supported by long-term clinical experience. (1) propriety locking mechanism helps prevent dislocation of the liner from the shell, yet provides easy disassembly, if necessary. (2) Full congruency between the liner and shell inhibits micromotion as the liner maintains integrity under load and stress. (3) Anti-rotational tabs secure the liner firmly in place. (4) Bottoming-out feature Case 4:13-cv-00478-CDL Document 32-8 Filed 07/25/16 Page 4 of 8 Tice v. Zimmer Holdings, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 6619143 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 prevents rim loading and helps to distribute stresses evenly by ensuring uniform metal shell support of the polyethylene liner. (5) Polar boss minimizes transverse forces and helps prevent micromotion by providing an additional stabilization point. Results of long-term clinic studies show that Zimmer fiber metal cups achieved extremely high success rates in the acetabulum. A review of 14 studies revealed a success rate of over 98 percent when considering failure of any kind, including radiographic loosening.... Trilogy Shells continue to utilize this extremely well-performing ingrowth material. (Id. at 13-14, 365 N.W.2d 176.) In addition, Plaintiffs refer to statements in an article from an archived version of Zimmer's website from the fall of 2003. Exhibit 8: Improvements are continually being made in materials used for hip replacements. For instance: - Polyethylene durability has been improved through ‘crosslinking.’ - Highly crosslinked polyethylene, advancement in this material, is highly wear-resistant. - Today's ceramic implants generally resist chipping and breaking better than the early versions. - Second generation metal-on-metal products are designed to address loosening that sometimes occurred in first generation metal-on-metal. *5 Clinical studies have shown that, generally, the higher the level of crosslinking, the greater the improvement in wear resistance. Zimmer's highly crosslinked polyethylene is produced using harmless high-dose electron beam radiation, which further links together the molecular structure of the polyethylene. Laboratory testing has shown that in crosslinking, a new three-dimensional structure is created that results in a polymer more resistant to wear. (Id. at 14-15, 365 N.W.2d 176.) Also, Plaintiffs refer to statements in an another article from an archived version of Zimmer's website from the fall of 2004. Exhibit 9: Hip Replacement Considerations-Stability Zimmer hip implant designs are the result of detailed analyses of hundreds of patients x-rays for maximum stability and optimal bone/implant fit. The goal is to maximize the patient's range of motion while at the same time minimizing the possibility for dislocation. (Id. at 15, 365 N.W.2d 176.) In addition, Zimmer allegedly made the following statements from an archived article on Zimmer's website dated 2004: Exhibit 10: Metasul®-The Strength of Metal-on-Metal In the Metasul implant, the conventional plastic polyethylene insert [has a] cobalt-chrome, metal inlay. This helps minimize wear over time, potentially increasing the longevity of the implant.... Metasul offers the promise of greater longevity than traditional hip implants. (Id.) Also, Plaintiffs cite these statements from a version of Zimmer's website archived in 2010: Exhibit 11: Hip Products Zimmer-By collaborating with innovating hip surgeons worldwide, Zimmer strives to improve patient quality of life with Zimmer® Minimally Invasive Solutions Procedures and leading- edge implant technology that continually raise the standard of care and give surgeons confidence they're providing the best patient solutions. (Id. at 15-16, 365 N.W.2d 176.) Finally, Plaintiffs quote a caption from Zimmer's website, a copy of which is attached in Exhibit 12: “Enhancing quality of life for patients worldwide.” (Id. at 16, 365 N.W.2d 176.) Case 4:13-cv-00478-CDL Document 32-8 Filed 07/25/16 Page 5 of 8 Tice v. Zimmer Holdings, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 6619143 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 Zimmer contends that the aforementioned statements do not state a claim for fraud or negligent misrepresentation because they amount to puffery, or they are irrelevant to the Devices or to Mr. Tice's decision to use them. Zimmer also contends that Plaintiffs' allegations fail to satisfy the pleading requirements in Rule 9(b) of the Federal Rules of Civil Procedure. See Smith v. Bank of Am. Corp., 485 F. App'x 749, 752 (6th Cir.2012) (requiring claims of fraud and negligent misrepresentation under Michigan law to be pleaded with particularity in accordance with Fed.R.Civ.P. 9(b), where both claims rely on the same course of conduct). In Michigan, claims of fraud and negligent misrepresentation both require a showing that the defendant made a statement with the knowledge or intention that the plaintiff would rely on it, and that the statement was false when made. See Hi-Way Motor Co. v. Int'l Harvester Co., 398 Mich. 330, 247 N.W.2d 813, 816 (Mich.1976) (elements for fraud); Law Offices of Lawrence J. Stockler, P.C. v. Rose, 174 Mich.App. 14, 436 N.W.2d 70, 82 (Mich.Ct.App.1989) (elements for negligent misrepresentation). The expression of an opinion, or “puffing,” is not actionable as fraud. Van Tassel v. McDonald Corp., 159 Mich.App. 745, 407 N.W.2d 6, 8 (Mich.Ct.App.1987). Puffing is “a salesman's praise of his own property, involving matters of estimate or judgment upon which reasonable men may differ.” Hayes Constr. Co. v. Silverthorn, 343 Mich. 421, 72 N.W.2d 190, 192 (Mich.1955). “[I]t is within normal expectations of commercial dealing for salesmen to ‘hype’ their products beyond objective proof.” Van Tassel, 407 N.W.2d at 8. “An action for fraudulent misrepresentation must be predicated on a statement relating to a past or an existing fact.” Eerdmans v. Maki, 226 Mich.App. 360, 573 N.W.2d 329, 333 (Mich.Ct.App.1997). “Future promises are contractual and do not constitute fraud.” Hi-Way Motor Co., 247 N.W.2d at 816; accord Forge v. Smith, 458 Mich. 198, 580 N.W.2d 876, 884 (Mich.1998) (negligent misrepresentation). *6 The Court agrees with Zimmer that Plaintiffs' allegations do not state a claim because the allegedly false statements described in the complaint appear to be either irrelevant to the Devices or not actionable because they amount to puffing or statements about future performance. Exhibit 1 Exhibit 1 contains information indicating that a particular size of femoral head of a Versys implant was recalled because the head will not seat properly on the femoral stem. Plaintiffs ostensibly claim that Zimmer was aware of this defect and should have disclosed it; however, Plaintiffs' complaint contains no allegations from which to infer that Mr. Tice's implant was subject to the recall or that the failure of his implant was in any way related to an inability of the femoral head to sit on the stem. Instead, the claimed defect in the Devices is that they failed due to “corrosion and deterioration ... after a period of time following implanting that caused friction resulting in metal-on-metal contact.” (Am. Compl. ¶ 57 (emphasis added).) Consequently, Plaintiffs' reliance on Exhibit 1 is not sufficient to state a plausible claim. As for the statements in Exhibits 2 through 12, the Court agrees that these statements fail to satisfy the pleading requirements of Rule 9(b) because none of Plaintiffs' allegations explain why they are false. See Smith, 485 F. App'x at 752 (requiring that the allegations “explain why the statements were fraudulent”). Plaintiffs contend that the Court should not apply the heightened pleading requirements of Rule 9(b) because those requirements are flexible and are to be read in accordance with the purpose of the Rules, which is to provide notice of the plaintiff's claims sufficient to prepare a defense. See U.S. ex rel. Folliard v. CDW Tech. Servs., Inc., 722 F.Supp.2d 20, 25 (D.D.C.2010). Plaintiffs contend that this is not the sort of case where heightened pleading requirements need to be applied because Defendants have defended many identical claims across the country and the nature of these claims has been known to them for many years. Plaintiffs provide no factual support for their contention that Defendants have defended similar claims, and no legal support for their contention that the requirements for pleading a claim can be satisfied by allegations raised in a different case. Moreover, Plaintiffs' allegations do not provide adequate notice of the allegedly false statements that Plaintiffs or their physicians relied upon when choosing to purchase and implant the Devices. Plaintiffs have provided a list of publicly-disseminated statements without facts indicating that any of the statements were actually relied upon by Plaintiffs or their physicians. Moreover, without allegations indicating why any of these statements were false, it is not clear how Zimmer could be expected to respond to Plaintiffs' allegations. Case 4:13-cv-00478-CDL Document 32-8 Filed 07/25/16 Page 6 of 8 Tice v. Zimmer Holdings, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 6619143 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 Thus, Plaintiffs' argument for not applying pleading requirements of Rule 9(b) is not persuasive. *7 Even assuming that Plaintiffs' allegations satisfy Rule 9, the statements in Exhibits 2 through 12 do not give rise to a claim because they are irrelevant or are not actionable under state law. Exhibits 2-6 The statements in Exhibits 2 to 6, which refer to Zimmer's “highest quality” products, Zimmer's commitment to providing the “best” products created by the “finest” designers, and the fact that Zimmer “has solutions” to address hip revision and “configurations” to address “stability,” amount to puffing. Cf. Hayes Constr. Co., 72 N.W.2d at 192 (holding that defendant's assertions as to the merits of a Coleman furnace, “that it would do the job, that it was miserly in its consumption of fuel, and the maintenance nil” were puffing). Exhibit 7 Exhibit 7 concerns Zimmer's design of the acetabular liner, which sits between the ball of the hip joint and the shell or cup. (See Exs. 7, 8 to Am. Compl., ECF Nos. 17-7, 178.) The statements in this exhibit are also puffing. Even assuming that the alleged defect in the Devices is related to the acetabular liner, such a defect would not render false Zimmer's vague assertions that it “designed” its devices to minimize wear and prevent dislocation of the liner, or that it had achieved “success” with a polyethylene liner. Exhibit 8 Exhibit 8 provides general statements about “improvements” in Zimmer's products and the fact that its polyethylene liner is “highly wear-resistant.” There is no basis on which a fact-finder could find that such statements are false. Assuming that Mr. Tice's implant prematurely failed as a result of wear and tear in the liner (which Plaintiffs have not specifically alleged), that fact alone would not render false Zimmer's assertion that its polyethylene material is “wear resistant.” Exhibit 9 Exhibit 9 provides a general statement about the stability of the Devices and Zimmer's goal to maximize the patient's range of motion. Zimmer's goals are not at issue in this case, and there is no allegation that the defect experienced by Mr. Tice is at all related to the stability of the Devices. Exhibit 10 Exhibit 10 concerns the properties of the metal-on- metal Metasul system. Plaintiffs do not indicate how Zimmer's statements about this system has any relevance to Plaintiff's implant, which ostensibly used a polyethylene liner between metal components. Exhibits 11, 12 Exhibits 11 and 12 provide general statements about Zimmer's intent to improve patient quality of life and its “leading-edge” implant technology. These are further examples of puffing that are not actionable as misrepresentations of fact. For all the foregoing reasons, therefore, Count V will be dismissed for failure to state a claim. C. Count VI: Loss of Consortium Zimmer seeks dismissal of Mr. Tice's claim for loss of consortium to the extent that it relies upon the theory of strict liability in Count I and the fraud claim in Count V. Such a request is not necessary. The loss-of-consortium claim is necessarily contingent upon, and limited by, Mr. Tice's ability to recover for his injuries. Several claims regarding those injuries are still pending. If Mr. Tice cannot recover under those other claims, then the loss-of- consortium claim will fail as a matter of law. Otherwise, Count VI will remain viable. Zimmer need not seek partial dismissal of the loss-of-consortium claim whenever some, but not all, of Mr. Tice's claims are resolved against him. III. *8 In summary, Count I will be dismissed to the extent that it relies on a theory of strict liability. Count V will be dismissed for failure to state a claim. An order will be entered that is consistent with this Opinion. All Citations Not Reported in F.Supp.3d, 2015 WL 6619143 Case 4:13-cv-00478-CDL Document 32-8 Filed 07/25/16 Page 7 of 8 Tice v. Zimmer Holdings, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 6619143 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 4:13-cv-00478-CDL Document 32-8 Filed 07/25/16 Page 8 of 8 Exhibit F Case 4:13-cv-00478-CDL Document 32-9 Filed 07/25/16 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-00478-CDL Document 32-9 Filed 07/25/16 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-00478-CDL Document 32-9 Filed 07/25/16 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-00478-CDL Document 32-9 Filed 07/25/16 Page 4 of 4