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Novak v. Mentor Worldwide LLC

United States District Court, D. Maine

February 14, 2018

JANICE NOVAK, Plaintiff,


          Nancy Torresen United States Chief District Judge

         In this products liability action, Plaintiff Janice Novak (“Ms. Novak”) has asserted nine claims related to injuries that she allegedly sustained from a transobturator sling called ObTape (the “ObTape”) manufactured by Defendant Mentor Worldwide LLC (“Mentor”). This matter comes before me on Mentor's motion for summary judgment. (ECF No. 5.) For the reasons set out below I GRANT Mentor's motion.


         Ms. Novak is one of dozens of individuals who have brought suit against Mentor for injuries allegedly caused by the ObTape. On December 3, 2008, the Panel on Multidistrict Litigation consolidated the Mentor ObTape cases before Chief Judge Land of the District Court for the Middle District of Georgia. Order, In re Mentor Corp. ObTape Transobturator Sling Prods. Liab. Litig. (“In re Mentor”), No. 4:08-md-2004-CDL (M.D. Ga. Dec. 3, 2008) (ECF No. 1). On January 14, 2016, Ms. Novak filed her Complaint in the Middle District of Georgia pursuant to a direct-filing order issued by Chief Judge Land on December 12, 2011. Compl. ¶ 3 (ECF No. 1); see Stipulation and Order Regarding Direct Filing, In re Mentor, No. 4:08-md-2004-CDL (M.D. Ga. Dec. 12, 2011) (ECF No. 446). In her Complaint, Ms. Novak averred that but for the direct-filing order she would have filed her action in this Court. Compl. ¶ 3.

         On April 24, 2017, Mentor moved for summary judgment on all of Ms. Novak's claims. Def.'s Mot. for Summ. J. 1. The parties completed briefing on Mentor's summary judgment motion on May 15, 2017. On August 16, 2017, Judge Land found that the parties' briefing raised a dispute regarding when Ms. Novak's claims accrued under Maine law. Order of Transfer 2 (ECF No. 9). Judge Land accordingly transferred Ms. Novak's action to this Court. Order of Transfer 2.

         On November 28, 2017, I issued an order pursuant to Federal Rule of Civil Procedure 56(e)(4) requiring Ms. Novak to supplement the record. (ECF No. 26.) After Ms. Novak responded to that order, I permitted the parties to exchange brief memoranda regarding Ms. Novak's evidentiary submissions. Pl.'s Notice of Filling (ECF No. 27); Mot. to File Under Seal Dep. Tr. of Dr. Krishna M. Bhatta (ECF No. 28); Def.'s Resp. to Pl.'s Notice of Filing (ECF No. 32) (“Def.'s Supp. Resp.”); Pl.'s Reply to Def.'s Resp. to Notice of Filing (ECF No. 35) (“Pl.'s Supp. Reply”). I heard oral argument on Mentor's motion on February 2, 2018.


         On November 10, 2004, Ms. Novak underwent surgery at Reddington Fairview Hospital in Skowhegan, Maine to implant an ObTape. Def.'s Separate Statement of Material Facts ¶ 1 (ECF No. 5-2) (“DSMF”). The ObTape was intended to treat Ms. Novak's stress urinary incontinence. DSMF ¶ 1. Ms. Novak's surgeon, Dr. Krishna Bhatta, has testified that he cannot recall any specific representations that Mentor made to him regarding the ObTape sling, including any warnings regarding risks specific to that device. Pl.'s Additional Facts ¶ 13 (ECF No. 6-1 at 7-9) (“PSMF”).[1]However, Dr. Bhatta was aware at the time of Ms. Novak's surgery that, as a general matter, implanting a foreign object into a human abdomen is associated with risks that include infection and abscess, erosion, pain during vaginal intercourse (in medical parlance, dyspareunia), postoperative pain, bleeding, irritable bowel symptoms, urgency, stress urinary incontinence, and vaginal or pelvic pain. DSMF ¶ 2. Dr. Bhatta warned Ms. Novak of these risks before he performed her ObTape surgery. Bhatta Dep. Tr. 32 (ECF No. 28-2).

         Ms. Novak claims that she experienced several of these symptoms as a result of her ObTape. DSMF ¶ 3. Shortly after her ObTape surgery, Ms. Novak began experiencing lower abdominal pain. DSMF ¶ 4. Between eight months to one year after the surgery-toward the end of 2005-Ms. Novak began experiencing pain during sexual intercourse. DSMF ¶ 5; PSMF ¶ 4. And sometime before the end of 2006, Ms. Novak began to experience vaginal leaking and vaginal bleeding. DSMF ¶ 6; PSMF ¶ 5.

         Within two years of her surgery-before the end of 2006-Ms. Novak went back to Dr. Bhatta and told him that she was experiencing abdominal pain. PSMF ¶ 2. Dr. Bhatta did not know what was causing Ms. Novak's pain and ordered several tests. PSMF ¶ 2. Ms. Novak underwent one inconclusive round of testing but she did not complete the tests because she found them embarrassing. See Novak Dep. Tr. 7-8 (ECF No. 7-1). Ultimately, Dr. Bhatta did not provide Ms. Novak with a diagnosis. PSMF ¶¶ 2, 3. Ms. Novak later consulted her regular physician, Dr. Michael MacDonald, who also did not offer an opinion on the cause of her abdominal pain. PSMF ¶ 3.

         It was not until 2013 that Ms. Novak first attributed her abdominal pain, dyspareunia, and vaginal leaking and bleeding to the ObTape. PSMF ¶ 10. On April 24, 2014, Ms. Novak underwent surgery at Broward Outpatient Center in Pompano Beach, Florida, during which Dr. Earle Pescatore removed part of her ObTape. DSMF ¶ 7.


         Summary judgment is appropriate when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A dispute is genuine where a reasonable jury could resolve the point in favor of either party. Oahn Nguyen Chung v., Inc., 854 F.3d 97, 101 (1st Cir. 2017). A fact is material where it could influence the outcome of the litigation. Id. The moving party may establish that there is no genuine dispute of material fact by “affirmatively produc[ing] evidence that negates an essential element of the non-moving party's claim, ” or by “using ‘evidentiary materials already on file . . . [to] demonstrate that the non-moving party will be unable to carry its burden of persuasion at trial.' ” Ocasio-Hernandez v. Fortuño-Burset, 777 F.3d 1, 4-5 (1st Cir. 2015) (citation omitted). This burden “may be discharged by ‘showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

         On a motion for summary judgment, courts must construe the record in the light most favorable to the non-movant and resolve all reasonable inferences in the non-movant's favor. Burns v. Johnson, 829 F.3d 1, 8 (1st Cir. 2016). Conversely, “neither conclusory allegations, improbable inferences, and unsupported speculation, nor brash conjecture coupled with earnest hope that something concrete will materialize, is sufficient to block summary judgment.” J. Geils Band Emp. Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245, 1251 (1st Cir. 1996) (marks and citations omitted); see also Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990) (“A genuine issue of material fact does not spring into being simply because a litigant claims that one exists.”).


         Mentor has moved for summary judgment on all of Ms. Novak's claims, advancing three principal arguments: 1) that Ms. Novak's claims for negligence, defective design, manufacturing defects, failure-to-warn, breach of implied warranties, breach of express warranties, and negligent misrepresentation (Counts I-VI, IX) are time-barred under Maine's statute of limitations; 2) that Ms. Novak's “failure-to-warn” claims (part of Count I and Counts IV, VII-IX) fail because she has not adduced evidence of causation, which is an essential element of those claims; and 3) that Ms. Novak's fraudulent misrepresentation, fraudulent concealment, and negligent misrepresentation claims (Counts VII-IX) fail because she has not provided evidence that she suffered a pecuniary loss, which is an essential element of all three claims.

         I. Whether Counts I-VI and IX are Time-Barred under Maine's Statute of Limitations

         The parties do not dispute that Maine law applies to Ms. Novak's claims. Def.'s Mem. in Support of Mot. for Summ. J. 3 (ECF No. 5-1) (“Def.'s Mem.”); Pl.'s Opp'n to Def.'s Mot. for Summ. J. 3-7 (ECF No. 6) (“Pl.'s Opp'n”). Under Maine's limitations statute, “[a]ll civil actions shall be commenced within 6 years after the cause of action accrues and not afterwards.” 14 Me. Rev. Stat. § 752; see also Johnston v. Dow & Coulombe, Inc., 686 A.2d 1064, 1065 n.1 (Me. 1996).

         Under the general rule in Maine, a cause of action accrues “at the time a judicially cognizable injury is sustained.” Dugan v. Martel, 588 A.2d 744, 746 (Me.1991). In tort actions, the cause of action is said to accrue when “a wrongful act produces an injury for which a potential plaintiff is entitled to seek judicial vindication.” Id. Under this date-of-injury rule, “mere ignorance of a cause of action does not prevent the statute of limitations from running.” Id.; see also Descoteau v. Analogic Corp., 696 F.Supp.2d 138, 140 (D. Me. 2010) (under Maine's statute of limitations, “[i]t is irrelevant whether the plaintiff is aware of his injury and/or the extent of his damages”). While the rule may seem harsh, statutes of limitations represent public policy decisions by state legislatures that balance several competing interests. As the Law Court has explained:

First, parties injured by the actions of others must be afforded an opportunity to pursue their meritorious claims and seek relief in the courts. On the other hand, potential defendants are entitled to eventual repose and to protection from being required to meet claims which could have been addressed more effectively if asserted more promptly. Difficulties in defending stale claims are caused by faded memories, dead or otherwise unavailable witnesses, and lost or destroyed evidence. Additionally, several courts have attributed to statutes of limitations the function of filtering out those claims which are spurious, inconsequential, and unfounded, because meritorious claims are not usually allowed to remain neglected. The intended effect, then, of statutes of limitations is to stimulate activity and to punish negligence and slumber.

Myrick v. James, 444 A.2d 987, 994 (Me. 1982) (citations omitted) superseded by statute on other grounds by P.L. 1985, ch. 804, §§ 13, 22 (effective Aug. 1, 1988) (codified at 24 Me. Rev. Stat. § 2902 (2011)), as recognized in Choroszy v. Tso, 647 A.2d 803, 807 (Me. 1994); see also Erlich v. Ouellette, Labonte, Roberge & Allen, P.A., 637 F.3d 32, 37 (1st Cir. 2011) (‚ÄúDepartures from Maine's date-of-injury rule are rare. They have involved careful balancing ...

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