United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE United States District Judge
THE COURT is Defendant Mentor Worldwide LLC's Motion for
Summary Judgment (Dkt. 41). Plaintiff has responded in
opposition. (Dkt. 51). Upon consideration, the motion is
developed the ObTape Transobturator Sling for surgical
treatment of female stress urinary incontinence. (Answer,
Dkt. 3 at ¶¶ 10, 12). Dr. Ruth Dyal implanted
Plaintiff with ObTape in Sarasota, Florida on December 10,
2004. (Plaintiff Fact Sheet, Dkt. 41-1 at p. 2). On June 20,
2006, Plaintiff presented to Dr. G. Willy Davila in Weston,
Florida with complaints of urine loss and vaginal discharge.
(Office visit record, Dkt. 41 -3 at p. 2). Dr. Davila
performed an examination and found a palpable erosion of the
ObTape. (Id. at p. 3). Dr. Davila diagnosed
Plaintiff with "mesh erosion, ObTape, " and later
testified that Plaintiff already knew about the exposed mesh
when she presented to him. (Id.; Dr. Davila
deposition transcript, Dkt. 41-2 at 12:9-17). Dr. Davila
recommended surgery to remove the ObTape, (Office visit
record, Dkt. 41-3 at p. 3), and performed the surgery on July
5, 2006, (Dr. Davila deposition transcript, Dkt, 41-2 at
filed a Complaint against Defendant in In re Mentor Corp,
ObTape Transobturator Sling Products Liability
Litigation in the United States District Court for the
Middle District of Georgia on July 1, 2014. (Dkt. I). Chief Judge
Clay D. Land entered an order transferring the case to this
Court on December 7, 2016. See (Order, Dkt. 31).
Plaintiffs Complaint asserts claims for negligence (Count I),
strict products liability (Counts II-IV), breach of warranty
(Counts V-VI), fraudulent misrepresentation (Count VII),
fraudulent concealment (Count VIII), and negligent
misrepresentation (Count IX). (Id.). Defendant moves
for summary judgment in its favor on all claims based on
Florida's statute of limitations. (Motion, Dkt. 41).
judgment is appropriate 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).
"A genuine factual dispute exists only if a reasonable
fact-finder 'could find by a preponderance of the
evidence that the [non-movant] is entitled to a verdict.'
" Kernel Records Oy v. Mosley, 694 F.3d 1294,
1300 (11th Cir. 2012) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986)). A fact is material if
it may affect the outcome of the suit under governing law.
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th
moving party bears the initial burden of showing that there
are no genuine disputes of material fact. Hickson Corp.
v. Northern Crossarm Co., 357 F.3d 1256, 1260 (11th Cir.
2004) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)). Once the moving party demonstrates the
absence of a genuine issue of material fact, the nonmoving
party must go beyond the pleadings through the use of
affidavits, depositions, answers to interrogatories, and
admissions on file to designate facts showing a genuine issue
for trial. See Celotex Corp., 477 U.S. at 324.
Plaintiff was a Florida resident at all times relevant to her
claims, and all events giving rise to her claims occurred in
Florida. (Complaint, Dkt. 1), The parties agree that Florida
law governs her claims under the choice of law rules
applicable to the multidistrict litigation. See
(Motion, Dkt. 41 at pp. 3-4) (citing Order Regarding Direct
Filing, Case No. 4:08-md-2004, Dkt. 446 (M.D. Ga. Dec. 12,
2011)); (Response, Dkt. 51 at p. 4). Florida has a four-year
statute of limitations for actions founded on negligence,
products liability, fraud, and obligations not founded on
written instruments. FLA. STAT. §95.11 (3)(a), (e), (j),
(k). The statute of limitations for actions based on products
liability or fraud begins to run from the time "the
facts giving rise to the cause of action were discovered[, ]
or should have been discovered with the exercise of due
diligence." Id. at § 95.031(2)(a)-(b).
Facts that give rise to a products liability action are
deemed discoverable with the exercise of due diligence if a
plaintiff knows that she suffered an injury and has enough
information to determine there is a possible causal link
between her injury and the defendant's product.
University of Miami v. Bogorff, 583 So.2d 1000, 1004
(Fla. 1991) (holding that knowledge of an injury and of the
"possible involvement" of a product is sufficient
for accrual of a products liability cause of action).
Florida law, therefore, Defendant has shown the absence of
any genuine dispute of material fact that Plaintiff s cause
of action accrued in 2006. The undisputed material facts show
that she knew of the exposed mesh when she presented to Dr.
Davila in June 2006 with symptoms of urine loss and vaginal
discharge. Dr. Davila diagnosed her with "mesh erosion,
ObTape." She underwent surgery in July 2006 to remove
the ObTape. She knew of her distinct injury and the possible
causal connection between her injury and her exposure to the
ObTape by 2006. See Id. Accordingly, the statute of
limitations applicable to all of her claims against Defendant
expired by the time she filed her Complaint in 2014. FLA.
STAT. § 95.1 l(3)(a), (e), (j), (k); see also In re
Mentor Corp. ObTape Transobturator Sling Products Liability
Litigation, No. 4:13-cv-31, 2016 WL 873 814, at *2 &
n. 1 (M.D. Ga. Mar. 4, 2016) (Land, C.J.) (applying Florida
law in granting summary judgment on statute of limitations
grounds in an ObTape product liability action); Babush v.
American Home Prods. Corp., 589 So.2d 1379, 1381 (Fla.
Dist. Ct. App. 1991) (noting that the Florida Supreme Court
in Bogorff established that the statute of
limitation period for a products liability action commences
with the plaintiffs knowledge of a distinct injury and of
some causal connection to "exposure to the product in
argues that her cause of action did not accrue until 2011,
when she saw a television advertisement about injuries caused
by the ObTape and realized that her injuries were not a
"one-in-a-million" case. (Response, Dkt. 41 at p.
1). Further, she argues that it was not possible for her to
discover her cause of action against Defendant until 2011,
because Defendant actively concealed facts showing that its
product was defective from her, her physicians, and the
medical community at large. (Id. at pp. 1,
Essentially, Plaintiff takes the position that her products
liability action did not accrue under Florida law until she
"discovered patients were facing systemic problems from
mesh" in 2011. (Id. at p. 6).
evidence relating to her discovery in 2011 of a
"systemic" defect with the ObTape does not create a
genuine issue of material fact with respect to the statute of
limitations. A plaintiffs discoveiy of a defect in a product
is not the event that triggers accrual of a products
liability cause of action. See In re Mentor Corp. ObTape
Transobturator Sling Products Liability Litigation, 2016
WL 873814, at *2 ("[The plaintiff] did not point to any
Florida authority establishing that a plaintiff who knows of
a connection between her injuries and a product must also be
aware that her injuries may have been caused by a product
defect before the statute of limitations begins to
run."). Rather, as noted, the statute of limitations
begins to run under Florida law when a plaintiff is able to
discover, with the exercise of due diligence, a possible
causal link between her distinct injury and her
exposure to the product. Bogorff, 583 So.2d
at 1004; Babush, 589 So.2d at 1381.
noted. Plaintiff cites no record evidence supporting her
contention that Defendant fraudulently concealed defects in
its product. She therefore fails to establish grounds to
estop Defendant from asserting the statute of limitations
bar. See A. P. ex rel. Ferez v. GlaxoSmithKline,
LLC, No. 13-23246-CIV, 2014 WL 3928522, at *4 (S.D. Fla.
Aug. 12, 2014) (rejecting the plaintiffs' fraudulent
concealment argument in granting summary judgment to the
defendant on statute of limitations grounds where