Photo of Rachel B. Weil

We flew to Pittsburgh this week for depositions.   From Philadelphia, it takes only about 40 minutes in the air to get to Pittsburgh.  But there are only a few nonstops each day.  With no other options, we booked a nonstop flight scheduled for a 7:55 a.m. departure, coordinated plans with colleagues, clients and witnesses, and went to sleep with our overnight bag packed and waiting at the door.  All in order, right?  Until our phone rang at 3:30 a.m. bearing the robotic message, “Your flight has been canceled.”  No explanation.  We called back to find that we had been “protected” – re-booked – on the next available flight, a couple of hours later.  So far, so good.   (Well, not really, but as good as it gets at that point.)  But then we discovered that our colleague, scheduled to fly with us, was not “protected” on our flight, but had been bumped to a much later flight so he could continue to take advantage of the first class upgrade he had not requested in the first place.  Good times. The next day, our flight for home departed right on schedule.  We landed in Philadelphia, taxied to the gate, stood up, and remained standing in the aisle for the next 30 minutes, informed that the jetway would not move to the door of the plane and “a mechanic has been called.”  Twice in one trip, the airline stopped just short of getting it right.

Recently, defendant Mentor Corp, moving for partial summary judgment in the Mentor ObTape Transobturator Sling Products MDL, similarly found itself at the mercy of a Court that laid the groundwork for a correct decision then stopped just short of getting it right.  Twice.

Plaintiff had been implanted with an ObTape transobturator sling in 2004 to address her stress urinary incontinence.  It was apparently undisputed that plaintiff “did not speak with anyone from Mentor or see any brochures, videos, product inserts, or other materials from Mentor before the procedure.”  In re Mentor Corp. Obtape Transobturator Sling Prods. Liab. Litig., 2015 U.S. Dist. LEXIS 93001 at *5 (M.D. Ga. July 17, 2015).  Plaintiff was happy with her implant until 2010, when she “began experiencing pain in her thighs.”  Id.  Initially, plaintiff was diagnosed with a groin strain; however, after several months of worsening symptoms, she was diagnosed with an abscess caused by erosion of the ObTape. She underwent excision surgery during which as much of the ObTape as possible was removed.  Id. at *6-7.

Plaintiff filed suit against Mentor asserting the usual litany of claims: negligence, design defect, manufacturing defect, failure to warn, breach of warranty, negligent and fraudulent misrepresentation, and fraudulent concealment.  Mentor filed for partial summary judgment on plaintiff’s manufacturing defect, express and implied warranty,  negligent and fraudulent misrepresentation, and fraudulent concealment claims.  It also sought “summary judgment as to [plaintiff’s] negligence claim to the extent it alleges a duty to recall and as to [her] failure-to-warn claim to the extent she alleges that Mentor breached a continuing duty to warn” after the ObTape device was implanted in the plaintiff.  Id. at *4.  [Apparently, Mentor did not move for summary judgment on plaintiff’s warnings claims to the extent that the claims related to any time period before plaintiff’s ObTape device was implanted.]  Plaintiff’s warranty and “failure to recall” claims were dismissed by agreement, leaving her “continuing duty to warn,” concealment/misrepresentation, and manufacturing defect claims to be resolved by the court.

Continuing Duty to Warn

Plaintiff alleged that Mentor breached a “continuing duty to warn [plaintiff’s] physicians of problems with ObTape” after plaintiff’s implant surgery.  Mentor argued that plaintiff “did not point to sufficient evidence of causation on her continuing duty to warn claim because she did not point to evidence that either of her implanting physicians would have done anything differently had Mentor provided them with additional warnings regarding ObTape.”  Id. at *13.   The court agreed, noting the record “establish[ed] that [plaintiff’s surgeon] did not contact any of his patients after their implant surgeries even though he learned of increased risks of ObTape.  And if [plaintiff] presented to [her surgeon] today with the complications she had in 2011, [he] would treat her exactly the same as he did then.”  Id.   Summary judgment for Mentor on “continuing duty to warn” claim.  But then came the turbulence.

Misrepresentation and Concealment Claims

Plaintiff alleged that her surgeon “received certain materials from Mentor that led him to recommend ObTape for [her], and that those materials contained material misrepresentations and concealed material facts about ObTape,” including facts about the frequency and severity of ObTape complications.”  Id. at *10.  Mentor argued that plaintiff could not prove the required reliance element of her misrepresentation and concealment claims, as it was “undisputed that Mentor did not make any representations directly to [plaintiff].” Id.  at *11.  The court conceded that, ‘[i]n general, a fraudulent or negligent misrepresentation claim must be based upon a misrepresentation made to the defrauded party, and relied upon by the defrauded party.” Id. at *11-12 (internal punctuation and citations omitted).  However, it held that “”the requirement of reliance is satisfied where . . . A, having as his objective to defraud C, and knowing that C will rely upon B, fraudulently induces B to act in some manner on which C relies, and whereby A’s purpose of defrauding C is accomplished.”  Id. at *12 (internal punctuation and citation omitted).  Thus, plaintiff created a material issue of fact by alleging that Mentor made misrepresentations to her surgeon, on whom she relied, intending to induce her to undergo the ObTape procedure.   Id.  Hmmmm.  There were:  A) no statements to the plaintiff, and B) no reliance by the plaintiff, so how do we get to C) no summary judgment?  We think that twisting the learned intermediary doctrine this way turns the entire concept of reliance on its head, allowing plaintiffs who were never defrauded to prevail on fraud claims.  It is a little bit like permitting a claim for a manufacturing defect where there is no evidence that the product in question was defectively manufactured.  Which is just what the court did.

Manufacturing Defect

Plaintiff’s manufacturing defect claim was based on evidence presented by plaintiffs in an earlier phase of the ObTape MDL, that the pore size of those plaintiffs’ ObTape samples varied from Mentor’s specifications.  Id. at *9.  Mentor pointed out that plaintiff “did not point to any evidence that any expert examined the specific ObTape that was explanted from [plaintiff’s] body and opined that a manufacturing defect existed.”  Id.   No matter, the court held.  Because other plaintiffs’ experts had tested “a number of [other plaintiffs’] ObTape samples” and had found deviations in a “substantial portion” of them, plaintiff, relying on that evidence, created a genuine issue of fact.  Id.   Seriously?  Need we even comment on the absurdity of permitting a plaintiff to use other plaintiffs’ evidence to prove that her device – never examined – was defectively manufactured?   Is this some sort of non-mutual collateral estoppel jiggery-pokery? We shudder at the slippery slope this approach could create.

And so, despite a promising holding on plaintiff’s “continuing duty to warn” claim, the court twice stopped short of getting it right.  Like our travel adventures.  Next time, we’re taking the train.