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Mentor Case Time Barred

Mass Tort News

In 2004, North Carolina resident Melanie Cole was implanted with Mentor’s OB Tape, which is a sling device that is used to treat urinary incontinence.  Three weeks after the surgery, Ms. Cole visited her surgeon and complained that it was not working properly, and that her incontinence was worse.

Ms. Cole continued to have problems with incontinence and she experienced urinary tract infections.  In 2007, Ms. Cole visited her doctor, and her doctor removed sling.

In 2008, Ms. Cole visited another doctor because she believed that all of the device was not removed in her prior revision surgery.  The second doctor believes he told Ms. Cole that some of her pain came from inflammation caused by the OB tape and if the OB Tape could be removed, then most of the pain should go away. In January 2009, more of the device was removed.

BahnhofsuhrZuerich_RZIn June 2013, Ms. Cole sued Mentor in the U.S. Court for the District Court for the District of Minnesota.  Ms. Cole asserted claims for breach of warranty, negligence and strict liability (design defect, failure to warn).  The lawsuit was then transferred to the Mentor ObTape Transobturator Sling Product Liability Litigation, MDL No. 4: 08-2004.

The parties agreed that Minnesota law applied to Ms. Cole’s claims.  Mentor moved for summary judgment on the strict liability and warrant claims, arguing that they are time barred.

The District Court Judge agreed with Mentor that the breach of warranty claim was barred under Minnesota’s four year statute of limitations.  He held that “a cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach.  A breach of warranty occurs, regardless of the aggrieved party’s lack of knowledge of the breach.”  The Judge explained, “Except where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance.  The cause of action accrues when the breach is or should have been discovered.”

“Cole did not point to any evidence that any warranty made by Mentor explicitly extended to future performance, so her breach of warranty claim accrued in 2004, when her OBTabe was implanted,” Judge Land concluded.  “Cole did not bring her claim within four years, so her breach of warranty claim is time-barred”

Turning to the design defect claim, the Judge noted that under Minnesota law, “any action based on the strict liability of the defendant and arising from the manufacture, sale, use or consumption of a product shall be commenced within four years.”

Under Minnesota law, “a claim involving personal injuries allegedly caused by a defective product accrues when two elements are present: a cognizable physical manifestation of the disease or injury, and evidence of a causal connection between the injury or disease and the defendant’s product, act or omission,” Judge Land explained.

“Here, Cole does not deny that she knew by 2008 at the latest that her injuries- worsened incontinence, pain, and infections- were caused by ObTape,” the Judge determined.  “Cole argued, however, that her claims did not accrue until she knew that her injuries were caused by a defect in ObTape, Cole did not point to any Minnesota authority holding that a plaintiff must be on notice that her injuries were caused by the defect.  Rather, the precedent states that the plaintiff must be aware of an injury and a causal connection between the injury and the defendant’s product.”

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Posted By: Bud Wilder