United States District Court, D. Maine
ORDER ON DEFENDANT'S MOTION FOR SUMMARY
Torresen United States Chief District Judge
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.
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.
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.
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.
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)
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).
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.
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.
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.
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. StudentCity.com,
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).
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.”).
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.
Whether Counts I-VI and IX are Time-Barred under Maine's
Statute of Limitations
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).
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) (“Departures from
Maine's date-of-injury rule are rare. They have involved
careful balancing ...