Martinez Et Al V Mentor Worldwide LLC Et Al

Case 4:13-cv-00329-CDL Document 41 Filed 08/29/16 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
IN RE MENTOR CORP. OBTAPE MDL No. 2004

TRANSOBTURATOR SLING Master Case No. 4:08-md-2004-CDL
PRODUCTS LIABILITY LITIGATION
Individual Case No. 4:13-cv-329
(Martinez)
DEFENDANT MENTOR WORLDWIDE LLC’S

MOTION FOR SUMMARY JUDGMENT
AGAINST PLAINTIFFS GLORIA AND MARTIN MARTINEZ
Pursuant to Rule 56 of the Federal Rules of Civil Procedure and Local Rule 56,
Defendant Mentor Worldwide LLC (“Mentor”) respectfully moves the Court for
summary judgment on all counts of Plaintiffs’ Complaint. Plaintiffs’ substantive claims
are all barred by the applicable statutes of limitations. Mr. Martinez’s derivative loss of
consortium claim fails in the absence of a viable substantive claim. The grounds for this
Motion are set forth in more detail in the accompanying memorandum in support.
Dated: August 29, 2016 Respectfully submitted,
s/ John Q. Lewis
John Q. Lewis
TUCKER ELLIS LLP
950 Main Avenue, Suite 1100
Cleveland, OH 44113-7213
Telephone: 216.592.5000
Facsimile: 216.592.5009
[email protected]
Designated Lead Counsel for Defendant

Mentor Worldwide LLC
Case 4:13-cv-00329-CDL Document 41 Filed 08/29/16 Page 2 of 2
IN RE: MENTOR CORP. OBTAPE TRANSOBTURATOR

SLING PRODUCTS LIABILITY LITIGATION MDL NO. 2004
CERTIFICATE OF SERVICE
A copy of the foregoing filing was served via ECF and by electronic mail on the
following counsel this 29th day of August, 2016:
Frank Piscitelli
[email protected]
Thomas P. Cartmell
[email protected]
Jeffrey M. Kuntz
[email protected]
Attorneys for Plaintiffs Gloria and Martin Martinez
s/ John Q. Lewis
Attorney for Defendant
012813\001273\2808324.1
Case 4:13-cv-00329-CDL Document 41-1 Filed 08/29/16 Page 1 of 6

COLUMBUS DIVISION
IN RE MENTOR CORP. OBTAPE MDL Case No. 2004

(Martinez)
DEFENDANT MENTOR WORLDWIDE LLC’S MEMORANDUM

IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT
AGAINST PLAINTIFFS GLORIA AND MARTIN MARTINEZ
Defendant Mentor Worldwide LLC (“Mentor”) is entitled to summary judgment
on all counts of Plaintiffs Gloria and Martin Martinez’s Complaint because:
 Their substantive claims are time-barred by the applicable statutes of

limitations; and
 Mr. Martinez’s derivative loss of consortium claim fails in the absence of a

viable substantive claim.
UNDISPUTED FACTS RELEVANT TO THIS MOTION
This Court previously described general facts related to ObTape (e.g., Apr. 22.
2010 Order, Doc. 241, at 4-5); Mentor will not restate them here because this motion is
premised on undisputed facts unique to Plaintiffs Gloria and Martin Martinez.
Mrs. Martinez was surgically implanted with ObTape by Dr. David Pollifrone on
September 16, 2003. (Separate Statement of Material Facts (SSMF) ¶ 1.) She claims to
have first suspected a problem with her mesh and sought legal counsel when she saw a
television advertisement about mesh complaints while she was still working for United
Airlines. (Id. ¶ 2.) She retired from United Airlines in 2010. (Id. ¶ 3.)
Mrs. Martinez and her husband direct-filed their case against Mentor in the
Southern District of West Virginia on July 8, 2013, and the matter was transferred to
this Court on July 30, 2013. (Id. ¶ 4.) Plaintiffs assert the following products liability
claims: (1) negligence; (2) strict liability—design defect; (3) strict liability—
manufacturing defect; (4) strict liability—failure to warn; (5) strict liability—defective
product; (6) breach of express warranty; (7) breach of implied warranty; (8) fraudulent
concealment; (9) constructive fraud; (10) discovery rule, tolling, and fraudulent
concealment; (11) negligent misrepresentation; (12) negligent infliction of emotional
distress; (13) violation of consumer protection laws; (14) gross negligence; (15) unjust
enrichment; (16) loss of consortium; and (17) punitive damages. (Id. ¶ 5.) Plaintiffs are
Indiana citizens, all of Mrs. Martinez’s ObTape-related medical treatment occurred in
Indiana, and Plaintiffs designated the Northern District of Indiana as the proper venue
for their action. (Id. ¶ 6.)
LEGAL ARGUMENT
Summary judgment should be granted 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). Indeed, Rule 56 “mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). Facts are “material” only if they could affect the outcome of the
suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). On a motion for summary judgment, “facts must be viewed in the light
most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those
facts.” Scott v. Harris, 550 U.S. 372, 380 (2007).
2
A. Indiana’s Statutes of Limitations Apply to Plaintiffs’ Claims.
Plaintiffs direct-filed this action in the In re: Coloplast Corp., Pelvic Support
System Products Liability Litigation MDL, designating the Northern District of Indiana
as the appropriate venue. (SSMF ¶ 6.) As this Court has held, the choice of law rules of
the state where the court of proper venue and would-be transferor court sits—Indiana—
apply. In re Mentor Corp. ObTape Transobturator Sling Prods. Liab. Litig. (“Roy”),
4:13-cv-125, 2016 WL 1452400, at *2 (M.D. Ga. Apr. 13, 2016) (applying Indiana law to
ObTape action direct-filed in Coloplast MDL, because plaintiffs designated Indiana as
“the state where venue would be proper had the action not been filed in a multidistrict
litigation”) (attached as Ex. C to Lewis Decl.); see also Wahl v. Gen. Elec. Co., 786 F.3d
491, 494–96 (6th Cir. 2015) (explaining that “the court of proper venue should apply its
own choice-of-law rules, not those of the MDL court,” because “the accident of
bureaucratic convenience” enabled by direct-filing in the MDL should not “elevate the
law of the MDL forum”). Indiana deems statutes of limitations “procedural” and thus
applies its own statutes of limitations regardless of which state’s substantive law governs
a plaintiff’s claims. 1st Source Bank v. Vill. of Stevensville, 3:11-CV-205-TLS, 2012 WL
2308647, at *3 (N.D. Ind. June 18, 2012) (attached as Ex. D to Lewis Decl.);
Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts,
Inc., 717 F. Supp. 1374, 1385 (S.D. Ind. 1989), aff’d, 917 F.2d 278 (7th Cir. 1990).
Accordingly, Indiana’s statutes of limitations apply here.
3
B. Plaintiffs’ Substantive Claims Are Time-Barred.
The IPLA provides the sole and exclusive cause of action for Mrs. Martinez’s
product liability claims alleging personal injuries. See Ind. Code § 34-20-1-1 (“This
article governs all actions . . . for physical harm caused by a product . . . regardless of
the substantive legal theory or theories upon which the action is brought.” (emphasis
added)). Thus, as this Court recognized in Roy, the IPLA’s two-year statute of
limitations, Ind. Code § 34-20-3-1(b)(1), applies to all product liability claims asserting
personal injury allegedly caused by ObTape. Roy, 2016 WL 1452400, at *2.
Under Indiana’s discovery rule, the statute of limitations begins to run when the
“plaintiff knew or should have discovered that she suffered an injury or impingement,
and that it was caused by the product or act of another.” Degussa Corp. v. Mullens, 744
N.E.2d 407, 410 (Ind. 2001). Here, Mrs. Martinez admits learning of a possible problem
with her mesh and seeking legal counsel after seeing a television commercial during her
employment with United Airlines. (SSMF ¶ 2.) Because Mrs. Martinez retired from
United Airlines in 2010 (id. ¶ 3), she knew of a possible injury caused by another’s
product in or about 2010, more than two years before she filed her Complaint in July
2013. Her IPLA claim is thus time-barred.1 Roy, 2016 WL 1452400, at *2–*4 (granting
summary judgment to Mentor on all product liability claims where plaintiffs had reason
1Even if Mrs. Martinez’s consumer-protection-law claim were pled in a way to avoid the
IPLA’s requirements, it would still be time-barred under the two-year limitations period
applicable to Indiana’s Deceptive Consumer Sales Act (DCSA), which begins running
from the “occurrence of the deceptive act.” Ind. Code § 24-5-0.5-5(b). No discovery rule
applies. See A.J.’s Auto. Sales, Inc. v. Freet, 725 N.E.2d 955, 965 (Ind. Ct. App. 2000),
disagreed with on other grounds by Magic Circle Corp. v. Schoolcraft, 4 N.E.3d 768,
770 (Ind. Ct. App. 2014). Here, the allegedly deceptive act must have occurred before
Mrs. Martinez’s decision to have ObTape implanted in September 2003. Further, she
admits learning of a possible problem with her ObTape from a television ad more than
two years before she filed suit. (SSMF ¶¶ 2–3.) Any distinct DCSA claim is therefore
time-barred.
4
to know of a connection between ObTape and the alleged injuries more than two years
before filing suit).
To the extent Plaintiffs assert warranty claims for economic damages—which are
governed by contract law instead of the IPLA, see Gunkel v. Renovations, Inc., 822
N.E.2d 150, 153 (Ind. 2005)—they are barred by Indiana’s four-year statute of
limitations, which commences “when tender of delivery is made.” Ind. Code § 26-1-2-
725(1), (2); see also Dart Indus., Inc. v. Adell Plastics, Inc., 517 F. Supp. 9, 11 (S.D. Ind.
1980). No discovery rule applies. See Ind. Code § 26-1-2-725(2) (“A cause of action
accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge
of the breach.” (emphasis added)).2 Mrs. Martinez’s warranty claims thus accrued when
her ObTape was surgically implanted in September 2003. (SSMF ¶ 1.) Her warranty
claims filed nearly ten years later are therefore time-barred.
C. The Consortium Claim Fails in the Absence of a Viable Claim.
The consortium claim—which is derivative in nature—also fails for lack of a viable
substantive claim. Because Mrs. Martinez’s substantive claims are all time-barred, her
husband’s loss of consortium claim necessarily fails. Long v. Barrett, No. IP 01-1719-C-
T/K, 2002 WL 662140, at *6 (S.D. Ind. Feb. 26, 2002) (attached as Ex. E to Lewis
Decl.).
2 Although Indiana applies a discovery rule to express warranties “explicitly extend[ing]

to future performance of the goods,” see Ind. Code § 26-1-2-725(2), no such express
warranty is at issue here.
5
CONCLUSION
The record confirms that Plaintiffs’ substantive claims are time-barred, which
extinguishes Mr. Martinez’s derivative consortium claim. Mentor is therefore entitled to
summary judgment on all claims.
Dated: July 29, 2016 Respectfully submitted,
s/ John Q. Lewis
John Q. Lewis
TUCKER ELLIS LLP
Telephone: 216.592.5000
Facsimile: 216.592.5009
[email protected]

6
012813\001273\2808322.4

COLUMBUS DIVISION

(Martinez)
DEFENDANT MENTOR WORLDWIDE LLC’S

SEPARATE STATEMENT OF MATERIAL FACTS IN SUPPORT OF ITS
MOTION FOR SUMMARY JUDGMENT
AGAINST GLORIA AND MARTIN MARTINEZ
Pursuant to Rule 56 of the Federal Rules of Civil Procedure and Local Rule 56,
Defendant Mentor Worldwide LLC submits this Separate Statement of Material Facts
in support of its Motion for Summary Judgment against Plaintiffs Gloria and
Martin Martinez.
A. Plaintiff’s ObTape Implant.
1. Mrs. Martinez was surgically implanted with ObTape by Dr. David
Pollifrone on September 16, 2003. (Pl. Fact Sheet § II, ¶¶ 3–4, attached as Ex. A to Decl.
of John Q. Lewis (“Lewis Decl.”).)
2. She claims to have first suspected a problem with her mesh and sought
legal counsel when she saw a television advertisement about mesh complaints while she
was still working for United Airlines. (Dep. of Gloria Martinez 116:13–117:19, attached
as Ex. B to Lewis Decl.)
3. She retired from United Airlines in 2010. (Pl. Fact Sheet § III, ¶ 13.)
B. Procedural History.
4. Plaintiffs direct-filed their case against Mentor in the Southern District of
West Virginia on July 8, 2013, and the matter was transferred to this Court on July 30,
2013. (Doc. 1, Short Form Compl.; Doc. 5.)
5. Plaintiffs assert the following products liability claims: (1) negligence;
(2) strict liability—design defect; (3) strict liability—manufacturing defect; (4) strict
liability—failure to warn; (5) strict liability—defective product; (6) breach of express
warranty; (7) breach of implied warranty; (8) fraudulent concealment; (9) constructive
fraud; (10) discovery rule, tolling, and fraudulent concealment; (11) negligent
misrepresentation; (12) negligent infliction of emotional distress; (13) violation of
consumer protection laws; (14) gross negligence; (15) unjust enrichment; (16) loss of
consortium; and (17) punitive damages. (Id. ¶ 13.)
6. Plaintiffs are Indiana citizens, all of Mrs. Martinez’s ObTape-related
medical occurred in Indiana, and Plaintiffs designated the Northern District of Indiana
as the proper venue for their action. (Pl. Fact Sheet § II, ¶¶ 3–4, § III ¶¶ 3–4; Doc. 1,
Short Form Compl. ¶ 5.)
Dated: August 29, 2016 Respectfully submitted,
s/ John Q. Lewis
John Q. Lewis
TUCKER ELLIS LLP
Telephone: 216.592.5000
Facsimile: 216.592.5009
[email protected]

2
012813\001273\2808325.2

COLUMBUS DIVISION

(Martinez)
DECLARATION OF JOHN Q. LEWIS IN SUPPORT OF

DEFENDANT MENTOR WORLDWIDE LLC’S MOTION FOR
SUMMARY JUDGMENT AGAINST GLORIA AND MARTIN MARTINEZ
I, JOHN Q. LEWIS, declare as follows:
1. I am an attorney admitted to practice law in the State of Ohio and
admitted pro hac vice in this action. I am a partner at the law firm of Tucker Ellis LLP
and counsel of record for Defendant Mentor Worldwide LLC (“Mentor”) in this action.
I have personal knowledge of the matters stated herein and, if called upon, I could and
would competently testify to the matters contained in this Declaration.
2. Attached as Exhibit A is a true and correct copy of Plaintiffs’ Fact Sheet.
3. Attached as Exhibit B is a true and correct copy of excerpts from Plaintiff
Gloria Martinez’s June 27, 2016 deposition.
4. Attached as Exhibit C is a true and correct copy of this Court’s unreported
decision in In re Mentor Corp. ObTape Transobturator Sling Products Liability
Litigation (“Roy”), MDL No. 2004, 4:13-cv-125, 2016 WL 1452400 (M.D. Ga. Apr. 13,
2016).
012813\001273\2808323.3
5. Attached as Exhibit D is a true and correct copy of the unpublished
decision, 1st Source Bank v. Vill. of Stevensville, 3:11-CV-205-TLS, 2012 WL 2308647
(N.D. Ind. June 18, 2012).
6. Attached as Exhibit E is a true and correct copy of the unpublished
decision, Long v. Barrett, No. IP 01-1719-C-T/K, 2002 WL 662140 (S.D. Ind. Feb.
26, 2002).
I declare under penalty of perjury under the laws of the United States that the
foregoing is true and correct.
Executed this 29th day of August, 2016, in Cleveland, Ohio.
s/John Q. Lewis
John Q. Lewis
2
012813\001273\2808323.3
Exhibit A

COLUMBUS DIVISION
IN RE MENTOR CORP. OBTAPE MDL CASE NO. 2004

TRANSOBTURATOR SLING
PRODUCTS LIABILITY LITIGATION 13-17635
Ind. Case No. ______________________
PLAINTIFF FACT SHEET
Please provide the following information for each individual on whose behalf a claim is being
made. Whether you are completing this Plaintiff Fact Sheet for yourself or for someone else,
please assume that “You” means the person who had the ObTape implanted. In filling out this
form please use the following definition: “healthcare provider” means any hospital, clinic, center,
physician’s office, infirmary, medical or diagnostic laboratory, or other facility that provides
medical care or advice, and any pharmacy, x-ray department, radiology department, laboratory,
physical therapist or physical therapy department, rehabilitation specialist, or other persons or
entities involved in the diagnosis, care and/or treatment of you.
In filling out any section or sub-section of this form, please submit additional sheets as necessary
to provide complete information. In addition, if you learn that any of your responses are
incomplete or incorrect at any time, please supplement your responses to provide that
information as soon as you become aware of this information.
In completing this Plaintiff Fact Sheet, you are under oath and must provide information that is
true and correct to the best of your knowledge, information and belief.
1
012813.000003\1345295.1
I. CASE INFORMATION
1. Gloria Martinez
Name of person completing this form: __________________________________
2. Gloria Martinez
Name of person on whose behalf a claim is being made:____________________
THE REST OF THIS PLAINTIFF FACT SHEET REQUESTS INFORMATION ABOUT THE
PERSON WHO WAS IMPLANTED WITH THE OBTAPE
II. CORE INFORMATION
1. Lot No. for the ObTape (please attach a copy of the stickers shown on the operative
report): 030717E
2. Date of Implantation: 9/16/2003
3. Name and Address of Implanting Surgeon(s): Dr. David Polifrone

Northeast Indiana Urology 2512 E. Dupont Rd. Ft. Wayne, IN 46825
4. Name and Address of Hospital, Clinic, or Doctor’s Office where implantation surgery
was performed: Dupont Surgery Center 2510 E. Dupont Rd. Suite 130
Fort Wayne, IN 46825
5. If the ObTape has been removed, provide the date on which it was removed:
Not Applicable
6. Name and Address of Surgeon(s) who removed the ObTape:

Not Applicable
2
7. Name and Address of Hospital, Clinic, or Doctor’s Office where surgery(ies) performed:
Not Applicable
8. Name of the Manufacturer and Type of the replacement sling, if any:

Not Applicable
9. Were any potions of the ObTape surgically removed? Yes No X
a. If Yes, what is the present location of the removed portions of the ObTape?
10. Has any doctor ever told you that there are portions of the ObTape still in your body?
Yes No
If Yes, please provide name and address of each such doctor:
Plaintiff has not had a revision surgery
11. Has any doctor told you that those portions of the ObTape still in your body need to be
removed? Yes No X
If Yes, please provide name and address of each such doctor:
3
III. PERSONAL INFORMATION
1. (MPSJB.BSUJOF[
Name (first, middle name or initial, last): _________________________________
2. Maiden or other names used and dates you used those names:
1FOB
__________________________________________________________________
3. Current address and date when you began living at this address:
_ )VFTUJT"WF'PSU8BZOF */
4. Identify each address at which you resided for the period from ten years before your
ObTape surgery up to the present and the dates you resided at each one.
Address Dates of Residence

3JWFSTIPSF%S3BDJOF 8*
'FSOXPPE"WF'U8BZOF */
5. Social Securi

Number:
6. Date and pla 4BO"OUPOJP 59

of birth:
7. Current marital status: .BSSJFE
8. If married, please provide the following information:
Date of marriage:

Name of spouse: .BSUJO.BSUJOF[
Date and place of birth of spouse 6OJPO$*UZ */
9. Name(s) of former spouse(s), date(s) of marriage(s) and dates the marriage(s) were
terminated, and the nature of the termination (i.e., death, divorce):
/PU"QQMJDBCMF
________________________________________________________________________
________________________________________________________________________
10. If you have children, list each child’s name and date of birth and whether they were
delivered vaginally or by Caesarian.
5POZB.BSJF.BSUJOF[ WBHJOBMMZ :PMBOEF,BZ.BSUJOF[ WBHJOBMMZ
____________________
.BSJP.BSUJOF[ WBHJOBMMZ.BOEZ.BSUJOF[ WBHJOBMMZ

______________ ____________
4
11. Identify all schools you attended, starting with high school:
Name of School Address Dates of Degree Major or

Attendance Awarded Primary Field
South Side High 3601 S. Calhoun St. 1963-1966 Diploma General Studies
Fort Wayne, IN 46807
12. X
Are you currently employed? Yes _____ No _____
If yes, please identify your current employer with name, address and telephone number and your
position there: Kroger Marketplace 5725 Coventry Lane Fort Wayne, IN 46804 260-432-2305
Deli worker
If not, did you leave your last job for a medical reason? Yes _____ X
No _____
If Yes, describe why you left:
13. For the period of time from ten years before you had your ObTape surgery, until the
present, please identify all of your employers, with name, address and telephone number,
your employment dates, your position there, and your reason for leaving:
Name of Employer Address and Dates of Describe Your Reason for

Telephone Employment Position or Duties Leaving
Number and
Wage/Salary
United Airlines 11555 W. 1997-2010 Reservationist Retired
Touhy Ave.
Chicago, IL
60666
773-825-1100
5
14. If you have Medicare, please state your HICN number:
15. For the period from ten years before your ObTape surgery to the present, have you been
on or applied for workers’ compensation, social security, and/or state or federal disability
9
benefits? Yes _____ No _____
If Yes, then as to each application, separately state the following and attach any documents you
have which relate to the application and/or award of benefits:
(a) Date (or year) of application:
(b) Type of benefits: 8PSLFSTh$PNQFOTBUJPO
(c) Nature of claimed injury/disability: GSBDUVSFELOFF
(d) Period of disability:
(e) Amount awarded: "QQSPYJNBUFMZ
(f) Basis of your claim: 4MJQQFEBOEGFMMPOJDFJOQBSLJOHMPU
(g) Was claim denied? Yes _____ 9

No _____
(h) To what agency or company did you submit your application:

6OJUFE"JSMJOFT
(i) Claim/docket number, if applicable: 1MBJOUJGGEPFTOPUSFDBMM
16. Have you ever filed a lawsuit or made a claim (other than this suit)?
Yes _____ 9
No _____
If Yes, please provide the following information and attach copies of all pleadings, releases or
settlement agreements and deposition transcripts you have:
Party You Sued/Made Court in Which Case/Claim Attorney Nature of Claim

Claim Against Suit Number Who and Injury
Filed/Claim Represented
Made You
6
17. Have you ever been convicted of, or pled guilty to, a felony or a crime of dishonesty
within the past ten years? Yes _____ X
No _____
If Yes, please state the charge to which you plead guilty or which you were convicted of, as well
as the court where the action was pending and the date of such conviction or plea:
18. Have you or your spouse ever declared bankruptcy since the date of your initial ObTape
X
surgery? Yes _____ No _____
If Yes, please state when and in what court you filed your bankruptcy petition, including the
2003 - Indiana
docket number of the petition and the orders of discharge:______________________
19. Have you or your spouse (if he/she is pursuing a loss of consortium claim) received any
money from a third party in exchange for an assignment of any portion of your claim or
recovery in this lawsuit, so that the payer or assignee has decision making authority over
the terms of any settlement or other resolution of your claim or has lien rights (excluding
liens by healthcare providers) against any funds generated by the resolution of your
claim? Yes _____ X
No _____
If Yes, please state:
The name and address of the third party with whom you have entered into such a
contract.
Not Applicable
7
IV. HEALTHCARE PROVIDERS
1. Identify each doctor, healthcare provider, hospital, clinic, surgery center, healthcare
facility, physical therapy or rehabilitation centers (including but not limited to
family/primary care physicians, surgeons, urologists, gynecologists, infectious disease
specialists, physical therapists, practitioners of the healing arts) whom you have seen for
medical care and treatment for the period ten years before your ObTape surgery to the
present.
Name (Specialty) Address and Approx Dates/Years Reason/Procedure

Telephone Number of Visits Performed
Robert Musselman MD PCP 3534 Brooklyn Ave. Ft. Wayne, IN 1974 - 2004 Primary Care
Tracy Bellavance, MD OB/GYN 7635 W. Jefferson Blvd. Ft. Wayne, IN 46804 1999 - 2004 OB/GYN
John Lopez, MD PCP 3807 Spring St. Racine, WI 53405 2004-2008 Primary Care
Sharee L. Chance-Lawson, DO PCP 6232 Bankers Rd. Racine, WI 53403 2008 - 2014 Primary care
David Pollifrone, MD Urology 1310 E. 7th St. #D Auburn, IN 46706 2003 -2004 Implant Surgery
Wheaton Franciscan Women's Health 3821 Spring St. Racine, WI 53405 2004 2014 Mammograms and GYN
Dr. Melissa Walther PCP 8911 Liberty Mills Rd. Ft. Wayne, IN 46804 2014 - Present Primary Care
2. Identify each pharmacy, drugstore or any other facility or supplier (including but not
limited to mail order pharmacies) where you ever received any prescription medication
for the period ten years before your ObTape surgery to the present.
Name of Address and Telephone Number of Approx Dates/Years You

Pharmacy/Supplier Pharmacy/Supplier Used Pharmacy/Supplier
Walgreens 110 E. Creighton Ave. Fort Wayne, IN 260-456-1841 2014 - Present
Walgreens 4901 Spring St. Racine, WI 53406 262-886-9643 2004 - 2014
Walgreens 6730 Bluffton Rd. Ft. Wayne, IN 46809 260-747-7563 1972 - 2003
8
V. MEDICAL BACKGROUND
1. Current Height: 5 feet 4 inches
2. Please state your weight at the following times:
(a) Current: Approximately 188 lbs.
(b) Time of implant: Approximately 170 lbs.
(c) Time of explant/excision surgery (if any): Not Applicable
3. Smoking History
(a) Have you ever smoked cigarettes? Yes _____ X

No _____
State amount smoked: ______ packs per day for ______ years, during the years
____________ to _____________.
4. Other Conditions
(a) To the best of your knowledge, have you ever experienced or been diagnosed with
any of the following conditions from the time beginning ten years before your
ObTape surgery to the present? Please select Yes or No for each condition. For each
condition for which you answer Yes, please provide the additional information
requested in the table following this chart:
Condition Experienced or Diagnosed Yes No Don’t

Know
1. Abnormal pap smear X
2. Autoimmune disease X
3. Bacterial vaginosis X
4. Cervical cancer X
5. Cystocele X
6. Diabetes X
7. Endometriosis X
8. Gestational diabetes X
9. Hormone deficiency X
10. Hypertension/high blood pressure X
11. Interstitial cystitis X
12. Obesity X
13. Ovarian cancer X
14. Pelvic inflammatory disease X
15. Polycystic ovary disease X
9
Condition Experienced or Diagnosed Yes No Don’t

Know
16. Rectocele X
17. Stress urinary incontinence X
18. Thyroid disorder X
19. Toxic shock syndrome X
20. Urethral erosion X
21. Urinary tract infection X
22. Urge incontinence X
23. Uterine cancer X
24. Vaginal erosion X
25. Vaginal infection X
26. Venereal disease X
27. Yeast infection X
(b) For each condition for which you answered Yes in the previous chart, please provide
the information requested below:
Condition You Experienced Approximate Name, Address and Treatment

Date of Onset Telephone Number of Received
Treating Physician (if any)
SUI 2003 Dr. David Pollifrone Mesh Implant
Urge Incontinence 5/11/2004 Dr. David Pollifrone Ditropan XL daily
Urinary tract infection 11/4/2003 Dr. David Pollifrone
2006 All Saints Hospital Antibiotics
10
VI. MEDICATIONS
1. List all of the medications (prescription and over the counter) you currently take.
Medication Dose/ Physician Pharmacy Purpose

Frequency/Dates Ordering Dispensing
of Use
Plaintiff does not currently take any medications
2. To the best of your recollection, are there any prescription medications other than those
identified that you have taken on a regular basis for any duration of more than two
months for the period ten years before your ObTape surgery to the present?
X
Yes _____ No _____
If Yes, please identify the medication(s), the doctor(s) who prescribed it, the approximate
dates/years you have taken this medication, and why it was given to you:
Medication Dose/ Physician Pharmacy Purpose

Frequency/Dates Ordering Dispensing
of Use
Blood pressure 2004 Dr. Lopez Walgreens heart palpitations
medicine plaintiff
does not recall the
name
Lipitor 2003 Walgreens
Zantac 2003 Walgreens
Lexapro 2003 Walgreens
11
VII. IMPLANT AND EXCISION/REMOVAL
1. Describe the condition for which the ObTape was implanted: Mixed urinary incontinence
2. Before the implantation of the ObTape, did you receive non-surgical treatment for your
stress urinary incontinence? Yes X No
(a) State the period during which you received non-surgical treatment:
Plaintiff was told to perform kegel exercises for apporximately a 4 week period prior to
mesh implant. Plaintiff believes it was between June and August of 2003
(b) State the nature of the non-surgical treatment (e.g., physical therapy, medication,
injections): kegel exercises
(c) State the name and address of all doctors or health care providers involved in your
non-surgical treatment: Plaintiff does not recall if Dr. Musselman or Dr. Bellavance
recommended she perform kegel exercises
3. Did you see, read or rely upon any documents or other information from Mentor in
making your decision to have the ObTape implanted? Yes ___ No ___ X
(a) If Yes, identify each document/source of information.
(b) When did you read the document/receive the information?
(c) How did you obtain the document or information?
12
(d) Do you have the document or written information in your possession? If so, please
produce a copy of it together with your answers to the Plaintiff Fact Sheet.
Yes No I don’t know
4. Have you had any communications with any present or former employee of Mentor or
concerning ObTape or matters in any way related to this lawsuit?
Yes No No
If Yes, for each, please state:
Date of Name of Person Mode of Do you have a writing or

Communication with Whom You Communication recording? (IF SO,
Communicated (In Person, By PLEASE ATTACH)
Phone, By
Email, By Mail)
If the communication was by phone or in-person, please tell us what was said:
13
VIII. INJURIES & DAMAGES
1. Are you claiming any physical injuries or illness as a result of the ObTape?
X
Yes _____ No _____
If Yes, please describe in detail the following:
(a) The physical injuries or illness claimed and when the symptoms began:
urinary urge and urge incontinence - 2004
Burning sensation - 2004
Bladder infection - 2006
Dyspareunia - 2008
(b) Are those injuries or illnesses continuing? X

Yes _____ No _____
(c) Provide the name and address of each health care provider that you have seen for
these problems:
Condition You Experienced Name, Address and Telephone Number of Health Care
Provider (if any)
Urinary urge and incontinence David Pollifrone, MD 2512 E. Dupont Rd. Ft. Wayne IN
46825 260-436-6667
Bladder infection Wheaton Franciscan Healthcare - All Saints Hospital ER

3801 Spring St. Racine, WI 53405 262-687-4011
Dyspareunia Wheaton Franciscan Women's Health Services

3821 Spring Street Racine, WI 53405 262-687-3111
Dr. Melissa Walther 8911 Liberty Mills Rd.
Fort Wayne, IN 46804 260-373-9465
14
2. Have you ever been hospitalized as a result of any of these conditions?
Yes _____ X
No _____
If Yes, please provide the following information:
(i) Approximate date(s) of hospital admission:
(ii) Approximate date(s) of discharge:
(iii)Hospital names(s) and address(es):
3. Do you claim any psychological or psychiatric injury (other than garden variety
emotional distress) as a consequence of having the ObTape?
Yes _____ X
No _____
If Yes, please state the following as it pertains to your treatment for any psychiatric and/or
psychological condition(s):
Condition Name and Address of Approx. Dates/Years of

Mental Healthcare Treatment/Visits
Provider (if any) (if any)
4. Are you making a claim for lost wages or lost earning capacity?
Yes _____ X
No _____
(a) If Yes, describe your claim and attach your W-2 forms for the relevant years. Your
description should include the total amount of time (and amount of income) which
you have lost or will lose from work as a result of any condition which you claim or
believe was caused by the ObTape, and an explanation of how those amounts were
calculated:
15
(b) If you claim a loss of earnings, state your earned income from work for the following
years:
YEAR INCOME
2012 $
2011 $
2010 $
2009 $
2008 $
2007 $
2006 $
2005 $
2004 $
2003 $
5. Is your spouse claiming loss of consortium?
X
Yes _____ No _____
6. Is your spouse claiming physical injury from the ObTape?
Yes _____ X
No _____
If Yes, please describe in detail the following:
(a) The physical injuries claimed and the approximate date of treatment for each injury,
and identify the name and address of each health care provider that your spouse has
seen for these problems:
Condition Spouse Experienced Approximate Date Name, Address and Telephone

of Treatment Number of Health Care Provider
(if any)
16
IX. MEDICAL AND OUT-OF-POCKET EXPENSES
1. State the amount of medical expenses, by provider, which you have incurred, including
amounts billed to insurers and other third party payors, which are related to any condition
which you claim or believe was caused by the ObTape for which you seek recovery in
this action:
Name and Address of Dates of Treatment Description of Amount of Medical

Provider Treatment Expenses
Plaintiff is not claiming out of pocket expenses $
$
$
$
$
For any expenses claimed above, have they been reimbursed by any third party?
Yes _____ No _____
If Yes, identify which expenses, the amount reimbursed and the date reimbursed.
17
X. FACT WITNESSES
Please identify all persons whom you believe possess information concerning you injury(ies) and
current medical conditions, other than your healthcare providers, and please state their name,
address, and relationship to you:
Name: "SMFOF3FWBMFF
Address: $BEJMMBD%S'PSU8BZOF */
Relationship to you: 4JTUFS
Name:
Address:
Relationship to you:
Name:
Address:
Relationship to you:
18
XIII. VERIFICATION
I declare under penalty of perjury that all of the information provided in this Plaintiff Fact Sheet
is true and correct to the best of my knowledge upon information and belief, that I have supplied
all the documents requested in part XI of this declaration, to the extent that such documents are
in my possession, custody, or control, or in the possession, custody, or control of my lawyers,
and that I have supplied the authorization attached to this declaration.
Date: 4/4/2016
Signature
21
XI. DOCUMENT DEMANDS
These document requests are not intended to seek attorney client communications, or attorney
work product materials. In addition, these requests do not encompass or seek information about
expert witnesses or communications with and/or from experts or proposed trial exhibits or trial
materials which may be subject to disclosure at a later date in accordance with subsequent Court
Order or rule. Thus, if you have any of the following in your possession which is not protected
as set forth above, please provide a copy of it with this Plaintiff Fact Sheet.
REQUEST NO. 1: All medical records (including, but no limited to, all charts, hospital
records, consent forms, treating physician records, photographs, videotapes/DVDs, drawings, X-
rays, ultrasounds, MRIs, CT scans, radiographs, angiograms, blood tests, laboratory reports,
prescriptions, spirometry tests, electrocardiograms, urine tests, blood gases tests, psychometric
tests, neuropsychological tests, stress tests, notes, telephone messages) from any physician,
hospital, clinic, health care provider, pharmacy, psychiatrist, psychologist, counselor or therapist
created since 1990 reflecting, referring or relating to Plaintiff.
REQUEST NO. 2: All medical bills for which plaintiff seeks recovery in this lawsuit, as
well as all documents relating to third-party payments of medical bills.
REQUEST NO. 3: All records of any other expenses (including, but not limited to,
nursing services, outpatient care, home health care, lost wages, etc.) allegedly incurred as a result
of the injuries alleged in the complaint.
REQUEST NO. 4: All photographs and videos of plaintiff’s surgery and all photographs
and videos of plaintiff which show plaintiff’s condition since the date of the original
implantation.
REQUEST NO. 5: Any documents including but not limited to literature, warnings or
informed consent forms received by you from surgeons, physicians, or other health care
professionals who have treated you for any condition related to ObTape.
19
IMPLANTS NONE 0-
LASERS
Manufacturer_____________________
0 HOLMIUM LASER 0 CO2 LASER 0 Handpiece --
0 Infraawde
STERILEEO CbTape
Power (Watts)
/ -- OMicroscope
J2003.07 - - I" Power (Watts) - - --

D030717E
2003-12
REF/93 -4000
SN! ADO6DZ5
REF!
101010
Energy (Joufes)_ -- _-
Mode 0 Contlnt 0 Superpu(se
+ MENTOR Exposure C) Conthous 0/ 0 St,Pse
-
- 77me On
- osur ntinuous 0 Single Pulse
S ize -- TlmeOff _
/
i_- -_ - ~ Repeat Pulse
Total Putsfs Total Time Total Joules
DRight
On
Location
Total PLises letat lime Total Joules
Time-Off -
MEDICATIONS
OLeft
- 7
Ill - - ,J;LUIC .I.Iqc1 ;Is1)J 1Iul1i
-- rwII
1W
MOW
TIME B/P HR SAO, R Nurse’s Notes - -

XII. AUTHORIZATIONS
Complete and sign the Authorization attached as Exhibit A.
20
Exhibit B
1
1 IN THE UNITED STATES DISTRICT COURT
2 COLUMBUS DIVISION
3
IN RE MENTOR CORP. OBTAPE)
4 TRANSOBTURATOR SLING ) MDL CASE NO. 2004
PRODUCTS LIABILITY )
5 LITIGATION ) Individual Case No.
_ _ _ _ _ _ _ _ _ _ _ _ _ _) 2:13-CV-17635(CDL)
6
7
THE VIDEOTAPED DEPOSITION OF GLORIA MARTINEZ
8
9 Date: Monday, June 27, 2016
10 Time: 9:11 a.m.
11 Place: Hampton Inn - Dupont Road

3520 East Dupont Road
12 Fort Wayne, Indiana
13
14 Called as a witness by Defendant Mentor
15 Worldwide, LLC, in accordance with the
16 Rules of the United States District Court,
17 Middle District of Georgia, Columbus
18 Division, pursuant to Notice.
19
20
21 Before Sharon L. Brady, Court Reporter

and Notary Public
22
23
24
25 Job No. CS2313169
Veritext Legal Solutions

800-567-8658 973-410-4040
2 4
1 APPEARANCES: 1 EXHIBITS CONTINUED
2 MR. FRANK E. PISCITELLI, JR. 2 DEFENDANT'S EXHIBITS PAGE
Piscitelli Law Firm 3 Exhibit 13 WFMG Visit Note dated 12/6/2010 93
3 8440 Station Street
Mentor, Ohio 44060 4 Exhibit 14 WFMG Visit Note dated 12/16/2011 95
4 [email protected] 5 Exhibit 15 History and Physical dated 104
5 On behalf of Plaintiff Gloria Martinez; March 19, 2015
6 6
7
MS. ANNE M. KORDAS, RN, JD ***
8 Tucker Ellis, LLP 7
950 Main Avenue 8
9 Suite 1100 9
Cleveland, Ohio 44113-7213 10
10 [email protected]
11
11 On behalf of Defendant Mentor Worldwide,
LLC; 12
12 13
13 *** 14
14
15
ALSO PRESENT:
16
15 Charles Holm, Videographer
Martin Martinez 17
16 18
17 *** 19
18
20
19
20 21
21 22
22 23
23 24
24
25
25
3 5
1 I N D E X 1 THE VIDEOGRAPHER: We're on the
2 THE VIDEOTAPED DEPOSITION OF
GLORIA MARTINEZ 2 record. The time is approximately
3 3 9:11 a.m. here in Fort Wayne,
DIRECT EXAMINATION
4 By Ms. Kordas ................................6
4 Indiana. I have a short read-in that
5 *** 5 I did need to make.
6
7 E X H I B I T S
6 Please note that the
8 DEFENDANT'S EXHIBITS PAGE 7 microphones are sensitive and will
9 Exhibit 1 Short Form Complaint 19
10 Exhibit 2 Plaintiff Fact Sheet 20
8 pick up whispering and private
11 Exhibit 3 Plaintiff Gloria Martinez's 21 9 conversations. Please turn off all
Responses to Defendant Mentor
12 Worldwide LLC's First Set of
10 cell phones and place them away from
Interrogatories 11 microphones, as they can interfere
13
Exhibit 4 Document Requests and Requests 22
12 with the deposition audio. Recording
14 for Things 13 will continue until all parties agree
15 Exhibit 5 Requests for Admissions 25 14 to go off the record.
16 Exhibit 6 Medical record dated 7-25-03 60
17 Exhibit 7 AUA Symptom Index 62 15 My name is Charles Holm,
18 Exhibit 8 Fax dated August 21, 2003, 63 16 representing Veritext today. Today's
Urodynamics and Cystoscopy
19 Summary, and Urodynamics Visit 17 date is June 27, 2016. And the time
Summary 18 is approximately 9:11 a.m.
20
Exhibit 9 Fax dated July 29, 2003 66 19 The deposition is being held at
21 20 the Hampton Inn in Fort Wayne,
Exhibit 10 Consent for Procedure, 73
22 Anesthetics, and Other Medical 21 Indiana, and is being taken by
Services dated 9-16-03 22 counsel for the Defendant.
23
Exhibit 11 Operative Report dated 9-16-03 79 23 The caption of the case is
24 24 Gloria Martinez, et al., versus
Exhibit 12 Medical record dated 12/1/2009 91
25 25 Mentor Worldwide, et al. The name of
2 (Pages 2 to 5)
800-567-8658 973-410-4040
114 116
1 to consider medical therapy. Patient is well 1 A Right.
2 aware that high blood pressure and high 2 Q That's your case against Mentor?
3 cholesterol increase her risk for vascular 3 MR. PISCITELLI: Objection.
4 compromise." 4 Asked and answered.
5 So, he states here that you have high blood 5 BY MS. KORDAS:
6 pressure. And this was in 2009. You were off 6 Q Right?
7 your -- you were off your medications in 2009? 7 A Yeah. Because it's still not -- I mean, it
8 A I went off of them then, yeah. 8 didn't last. It didn't do anything for me.
9 Q And did you ever go back on your blood pressure 9 So --
10 medications? 10 Q And Dr. Pollifrone never guaranteed that it would
11 A Doctors never said I needed it after that. When 11 work, correct?
12 I went to see Chance-Lawson, she never 12 A That I can recall, no.
13 recommended that either. She was fine with my 13 Q Okay. Without revealing anything of substance
14 blood pressure. 14 that you may have discussed with your attorneys,
15 Q I have a note here from when you went to 15 when did you start thinking about bringing a
16 Dr. Moffitt. 16 lawsuit?
17 A Again, I -- it was a foot -- that was supposed to 17 A I can't remember when this all started. You mean
18 be a foot doctor. 18 when I heard that there was some problems with
19 Q Right. 19 this mesh or there was problems with this product
20 A And it turned out to be a doctor. 20 or what?
21 Q And, actually, it does say that you wanted to be 21 Q Right.
22 scheduled with Dr. Jackson, podiatry. 22 A When I seen it on TV or whatever and they were
23 A Right. 23 talking about meshes, that's when I got concerned
24 Q It's dated March 3rd, 2016. 24 because I had one of those put in. That's when I
25 A Right. So, that one, we just don't need to worry 25 decided to check into it because I thought, well,
115 117
1 about. Because when I called, I asked for 1 what is it -- what is it gonna do to me? I don't
2 Dr. Jackson. And they said, "Oh, he retired, and 2 know what -- what the problem was.
3 so they have a new doctor." And I said, "Okay." 3 Q When was that?
4 So, that's why we got confused with that. They 4 A Again, I -- I don't remember. We was in
5 didn't say -- 5 Wisconsin when that happened, so I can't remember
6 Q She -- she did take a set of vital signs, though, 6 how long ago this has been going on. I can't --
7 on you. And it states that your blood pressure 7 I couldn't tell you.
8 was 148 over 92. 8 Q Were you still working at United Airlines?
9 Do you -- do you monitor your blood pressure 9 A Yes. That would've been back then, about that
10 at any time? 10 time.
11 A No. He's got one at home that we can check off 11 Q So, it would've been prior to your retiring from
12 and on. 12 United Airlines?
13 Q Do you know -- do you know if 148 over 92 would 13 A Yes.
14 be considered high blood pressure? 14 Q And had you called an attorney --
15 A It's kind of elevated, yeah. But that was in the 15 A Yes.
16 afternoon. I was probably already exhausted and 16 Q -- at that time? So, prior to retiring from
17 tired already and stressed out that day; so, 17 United Airlines, you had seen the advertisements
18 waited in the office for nothing. 18 and had already called an attorney?
19 Q In your own words, can you tell me what your 19 A Correct.
20 personal case is against Mentor? 20 Q Was this something that your husband had also
21 A Not really. I don't know. Just that I was -- I 21 been aware of?
22 went to a doctor to see if I could have this 22 A I don't know if he was aware of it or not.
23 incontinence taken care of and it didn't work out 23 Q Were you ever contacted by phone, e-mail, or
24 and I'm still back to the same way it was before. 24 regular mailing about filing a claim or lawsuit
25 Q So, the procedure didn't work? 25 related to ObTape?
30 (Pages 114 to 117)

800-567-8658 973-410-4040
Exhibit C
Case
In re Mentor Corp. 4:13-cv-00329-CDL
Obtape Document
Transobturator Sling Products 41-6 Slip
Liability..., Filed 08/29/16
Copy (2016) Page 2 of 4
favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986). A fact is material if it is relevant or necessary to the
2016 WL 1452400
outcome of the suit. Id. at 248. A factual dispute is genuine if
Only the Westlaw citation is currently available.
the evidence would allow a reasonable jury to return a verdict
United States District Court,
for the nonmoving party. Id.
M.D. Georgia, Columbus Division.
In re Mentor Corp. Obtape Transobturator

Sling Products Liability Litigation. FACTUAL BACKGROUND
MDL Docket No. 2004 Lynne Roy suffered from stress urinary incontinence, and
| she sought treatment from Dr. Ramesh Unni. Dr. Unni
4:08-MD-2004 (CDL) implanted Mrs. Roy with ObTape on November 22, 2004.
| Less than a year later, Mrs. Roy developed malodorous
Case Nos. 4:13-cv-125 (Roy) vaginal discharge. After seeing at least two doctors about
| her symptoms, Mrs. Roy visited Dr. Sandra Culbertson in
Singed 04/13/2016 July 2007. Dr. Culbertson examined Mrs. Roy and told Mrs.
Roy that her ObTape had rubbed a hole in her vaginal wall,
was causing the discharge, and needed to be removed. Dr.
ORDER Culbertson removed Mrs. Roy's ObTape on September 10,
2007 and told Mrs. Roy that she had removed infected mesh.
CLAY D. LAND, CHIEF U.S. DISTRICT COURT JUDGE Mrs. Roy's vaginal discharge symptoms cleared up after the
excision surgery.
*1 Defendant Mentor Worldwide LLC developed a
suburethral sling product called ObTape Transobturator
The Roys are Indiana residents, and Mrs. Roy's ObTape-
Tape, which was used to treat women with stress urinary
related treatment took place in Indiana. Mrs. Roy asserts
incontinence. Plaintiff Lynne Roy was implanted with
claims for negligence, strict liability –manufacturing
ObTape and asserts that she suffered injuries caused by
defect; strict liability – failure to warn; strict liability
ObTape. Mrs. Roy brought a product liability action
–defective product; breach of implied warranty; breach
against Mentor, contending that ObTape had design and/or
of express warranty; fraudulent concealment; constructive
manufacturing defects that proximately caused her injuries.
fraud; discovery rule, tolling, and fraudulent concealment;
Mrs. Roy also asserts that Mentor did not adequately warn
negligent misrepresentation; negligent infliction of emotional
her physicians about the risks associated with ObTape. Her
distress; violation of consumer protection laws; gross
husband Eugene brought a loss of consortium claim. Mentor
negligence; unjust enrichment; and punitive damages. Mr.
seeks summary judgment on the Roys' claims, contending
Roy asserts a loss of consortium claim. Mrs. Roy does not
that they are time-barred. For the reasons set forth below,
dispute that Mentor is entitled to summary judgment on her
Mentor's summary judgment motion (ECF No. 44 in 4:13-
unjust enrichment claim, so summary judgment is granted as
cv-125) is granted.
to that claim.
SUMMARY JUDGMENT STANDARD

DISCUSSION
Summary judgment may be granted only “if the movant
*2 The Roys filed their action on April 4, 2013 by filing
shows that there is no genuine dispute as to any material
a short form complaint in In Re: Coloplast Corp. Pelvic
fact and the movant is entitled to judgment as a matter
Support System Products Liability Litigation, MDL No.2387.
of law.” Fed. R. Civ. P. 56(a). In determining whether a
The Roys stated that the proper venue for their action is
genuine dispute of material fact exists to defeat a motion
the U.S. District Court for the Northern District of Indiana.
for summary judgment, the evidence is viewed in the light
Compl. ¶ 5, ECF No. 1 in 4:13-cv-125. The Judicial Panel
most favorable to the party opposing summary judgment,
on Multidistrict Litigation transferred the action to this Court
drawing all justifiable inferences in the opposing party's
for pretrial proceedings. The parties agree that Indiana law
© 2016 Thomson Reuters. No claim to original U.S. Government Works. 1

Case
Obtape Document
applies because it is the law of the state where venue would be 2007, Mrs. Roy's doctor told Mrs. Roy that the ObTape
proper had the action not been filed in a multidistrict litigation had rubbed a hole in her vaginal wall, was causing the
proceeding. discharge, and needed to be removed. And in September
2007, Mrs. Roy's doctor removed the ObTape and told Mrs.
Indiana has a two-year statute of limitations for product Roy that she had removed infected mesh from Mrs. Roy's
liability claims. Ind. Code § 34-20-3-1(b)(1). This statute of body. Therefore, Mrs. Roy knew of, strongly suspected, or
limitations applies to all of the Roys' claims except Mrs. had enough information to know of a connection between
Roy's warranty claims because Indiana's Product Liability ObTape and at least some of her injuries by September 2007.
Act governs all actions brought by a consumer against a A reasonable person in that situation would take some action
manufacturer “for physical harm caused by a product[,] to follow up on the cause of her injuries and try to find
regardless of the substantive legal theory or theories upon out whether the injuries were caused by a problem with
which the action is brought.” Ind. Code § 34–20–1–1. ObTape, a problem with the implant surgery, or some other
Therefore, the two-year statute of limitations applies to the problem. The statute of limitations for the Roys' product
Roys' claims for negligence, strict liability – manufacturing liability claims therefore accrued in September 2007. They
defect; strict liability – failure to warn; strict liability did not file their action until more than five years later, so
– defective product; fraudulent concealment; constructive their product liability claims, including Mr. Roy's loss of
fraud; negligent misrepresentation; negligent infliction of consortium claim, are barred.
emotional distress; violation of consumer protection laws;
gross negligence; and loss of consortium. *3 The Roys contend that it is not enough that they made a
connection between ObTape and some of Mrs. Roy's injuries.
Under Indiana's discovery rule, the Indiana statute of Rather, they appear to argue that they must have been on
limitations “begins to run from the date that the plaintiff notice that a defect in ObTape caused Mrs. Roy's injuries. The
knew or should have discovered that she suffered an injury Roys did not point to any Indiana authority holding that a
or impingement, and that it was caused by the product or act plaintiff must be on notice that her injuries were caused by a
of another.” Nelson v. Sandoz Pharm. Corp., 288 F.3d 954, product defect. Rather, the precedent establishes that a claim
966 (7th Cir. 2002) (applying Indiana law) (quoting Degussa accrues when the plaintiff becomes aware of an injury and
Corp. v. Mullens, 744 N.E.2d 407, 410 (Ind. 2001)); accord a causal connection between the injury and the defendant's
Evenson v. Osmose Wood Preserving Co. of Am., 899 F.2d product. See Mullens, 744 N.E.2d at 411 (finding that statute
701, 703 (7th Cir. 1990) (applying Indiana law). In Mullens, of limitations did not begin to run until the plaintiff knew
for example, the Indiana Supreme Court concluded that the that there was a reasonable probability that her injuries were
statute of limitations did not begin to run until the plaintiff caused by the defendant's product).
knew there was “a 'reasonable possibility, if not a probability'
that an injury was caused by an act or product.” Mullens, The Roys nonetheless contend that Evenson, a Seventh
744 N.E.2d at 411 (quoting Van Dusen v. Stotts, 712 N.E.2d Circuit case applying Indiana law, supports denial of
491, 499 (Ind. 1999)). The Mullens Court noted that once summary judgment on their negligence and strict liability
the plaintiff suspected that her symptoms were connected claims. The Court disagrees. In Evenson, a wood treatment
to the defendant's chemicals that she was exposed to at worker was exposed to a chemical at his job, and he developed
work, she undertook a diligent investigation to determine the several conditions that required medical treatment. In 1985,
cause of her symptoms. Id. That diligent investigation led the the worker became concerned that the chemical caused his
plaintiff to a doctor who found that the plaintiff's symptoms symptoms, but at the time, his doctors were unable to identify
were caused by the defendant's chemicals, and the statute the cause of the worker's problems. Therefore, the Seventh
of limitations began running when the doctor connected the Circuit concluded that there was not sufficient evidence that
symptoms to the chemicals. Id. the worker “had or should have discovered some evidence”
by 1985 “that there was a reasonable possibility that his
Here, Mrs. Roy contends that she did not learn of a connection [chemical] exposure was the cause of his injuries.” Evenson,
between ObTape and her injuries until 2011 when she saw 899 F.2d 701 at 705. Rather, the statute of limitations did not
a television commercial regarding mesh complications. But begin to run until 1987, when a doctor connected the worker's
Mrs. Roy knew or should have known that she suffered symptoms to the chemical. Nothing in Evenson required the
some injuries caused by ObTape well before then. In July worker to be on notice of a defect in the chemical. Rather, the

Case
Obtape Document
action is not enough to constitute concealment and toll the

worker's cause of action accrued when his doctor told him that
running of the statute.” Id. (quoting Ludwig, 510 N.E. at
there was a connection between the chemical and his injuries.
697). “A plaintiff bears the burden of proving that a statute
Id.
of limitations should be tolled, which includes demonstrating
the use of reasonable care and diligence to detect the alleged
Here, the Roys knew or should have known of a connection
cause of action.” Id.; accord Horn, 50 F.3d at 1372 (noting
between ObTape and Mrs. Roy's symptoms by September
that a plaintiff “must demonstrate that he exercised reasonable
2007, when Mrs. Roy's doctor removed the ObTape after
care and due diligence to discover the fraud”).
discovering that the ObTape had rubbed a hole in Mrs. Roy's
vaginal wall. The Roys' product liability claims accrued in
*4 Here, the Roys essentially argue that because Mentor
2007, and they did not file their action within two years. Their
sold ObTape to Mrs. Roy's doctor and continued selling it
product liability claims are therefore time-barred. Mrs. Roy's
until 2006 without disclosing certain complication rates that
warranty claims are likewise time-barred. 1
Mentor had allegedly discovered, the statute of limitations
should be tolled due to fraudulent concealment. The Roys
The Roys contend that even if the discovery rule does not
did not, however, point to any evidence that Mentor took
save their claims, the statute of limitations should be tolled
affirmative acts to prevent the Roys from knowing of
due to fraudulent concealment. “If a person liable to an action
a potential connection between ObTape and Mrs. Roy's
conceals the fact from the knowledge of the person entitled
injuries. And, there is no evidence that the Roys exercised
to bring the action, the action may be brought at any time
reasonable diligence to investigate their potential claims even
within the period of limitation after the discovery of the
though they knew (or had enough information to know)
cause of action.” Ind. Code § 34–11–5–1. “The law narrowly
there was a connection between Mrs. Roy's injuries and the
defines concealment, and generally the concealment must be
ObTape. Under these circumstances, the Court concludes that
active and intentional.” Olcott Int'l & Co. v. Micro Data Base
fraudulent concealment does not toll the statute of limitations.
Sys., Inc., 793 N.E.2d 1063, 1072 (Ind. Ct. App. 2003). “[A]
plaintiff must show that the wrongdoer was not simply silent
but committed affirmative acts designed to conceal the cause
of action.” Horn v. A.O. Smith Corp., 50 F.3d 1365, 1372 CONCLUSION
(7th Cir.1995) (applying Indiana law). “The affirmative acts
As discussed above, Mentor's summary judgment motion
of concealment must be calculated to mislead and hinder a
(ECF No. 44 in 4:13-cv-125) is granted.
plaintiff from obtaining information by the use of ordinary
diligence, or to prevent inquiry or elude investigation.” Olcott
IT IS SO ORDERED, this 13th day of April, 2016.
Int'l, 793 N.E.2d at 1072 (quoting Ludwig v. Ford Motor
Co., 510 N.E.2d 691, 697 (Ind. Ct. App. 1987)). “There must
be some trick or contrivance intended by the defrauder to All Citations
exclude suspicion and prevent inquiry.” Id. (quoting Ludwig,
510 N.E. at 697). “Mere lack of knowledge of a cause of Slip Copy, 2016 WL 1452400
Footnotes
1 Indiana has a four-year statute of limitations for breach of contract claims. Ind. Code § 26–1–2–725(1). A breach of
warranty claim “accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach.”
Ind. Code § 26–1–2–725(2). “A breach of warranty occurs when tender of delivery is made.” Id. Therefore, Mrs. Roy's
warranty claims accrued when her ObTape was implanted in November 2004, and she did not bring her warranty claims
within four years of that date.
As the Court previously explained, the discovery rule does not apply to contract-based claims under Indiana's Uniform
Commercial Code. Riley v. Mentor Corp., No. 4:11-CV-5075, 2013 WL 592409, at *3 (M.D. Ga. Feb. 14, 2013).
Moreover, even if the product liability discovery rule did apply, Mrs. Roy's warranty claims would still be time-barred
because she did not bring them within four years after learning of a connection between ObTape and her injuries.
End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works.

Exhibit D
Case
1st Source Bank 4:13-cv-00329-CDL
v. Village Document
of Stevensville, Not Reported 41-7 Filed
in F.Supp.2d (2012) 08/29/16 Page 2 of 5
This diversity action arises out of a series of loans

made by the Plaintiff to the Village of Stevensville,
2012 WL 2308647
Michigan (the Village) and the Village of Stevensville
Downtown Development Authority (DDA) (collectively
N.D. Indiana. Stevensville). 1 In 2010, the Village and the DDA
defaulted on those loans. The Plaintiff, a bank organized
1ST SOURCE BANK, Plaintiff, and existing under the laws of Indiana and located in
v. Indiana, then brought the present suit to enforce its rights
VILLAGE OF STEVENSVILLE, et al., Defendants. under the loan agreements. Stevensville, in its Answer
to the original Complaint, asserted as an affirmative
Cause No. 3:11–CV–205–TLS. defense that it had no authority to take out the loans in
| question and that the loan agreements were, therefore,
June 18, 2012. unenforceable. (Village & DDA Answer ¶¶ 5, 55, 60, 62,
ECF No. 9; Village & DDA Affirmative Defenses ¶¶ 1,
Attorneys and Law Firms
2, ECF No. 9.) The Plaintiff then filed the Amended
John David Ladue, Paul E. Harold, Robert John Kuehn, Complaint adding allegations for “Misrepresentation”
III, Ladue Curran & Kuehn LLC, South Bend, IN, for and “Breach of Warranty” and added several additional
Plaintiff. Defendants. (Am. Compl. 17–22, ECF No. 14.) The
Plaintiff alleges that if Stevensville proves its affirmative
Robert A. Callahan, Plunkett Cooney PC, Kalamazoo, defense that it had no authority to borrow the money at
MI, for Defendants. issue, then these additional Defendants, all of whom it
alleges took some action to represent to the Plaintiff that
Stevensville had such authority, must have made material
OPINION AND ORDER misrepresentations upon which they knew or should have
known that the Plaintiff would rely.
THERESA L. SPRINGMANN, District Judge.
Peterson was the Village's attorney during the time period
*1 This matter is before the Court on a Motion to relevant to this suit. In that role, he sent a letter to the
Dismiss [ECF No. 30] filed by Defendant David M. Plaintiff on December 11, 2006, stating:
Peterson on October 13, 2011. The Plaintiff, 1st Source
Bank, filed an Amended Complaint [ECF No. 14] on Pursuant to Michigan law, the
September 9, 2011, adding several Defendants, including Village of Stevensville is authorized
Peterson to this lawsuit. Peterson filed a Memorandum to borrow and incur debt obligations
in Support [ECF No. 31] along with the Motion. The not to exceed 10% of the assessed
Plaintiff filed a Response [ECF No. 38] in opposition to valuation of real and personal
the Motion on October 26. Peterson filed a Reply [ECF property within the Village subject
No. 43] on November 7. The Plaintiff filed an Unopposed to taxation as shown by the last
Motion for Leave to File a Sur–Reply [ECF No. 44] preceding assessment roll of the
on November 14, with the proposed Sur–Reply [ECF Village. MCL 69.22. Currently, this
No. 44–1] attached. The Magistrate Judge granted that authorized amount is $3,000,000
Motion. Peterson filed an Unopposed Motion for Leave (three million dollars). As a result,
to Rebut Sur–Reply [ECF No. 47] on November 23 with it is my opinion that the Village
the proposed Rebuttal [ECF No. 47–1] attached. The of Stevensville is a “qualified small
Magistrate Judge also granted that Motion. The parties issuer” as that term is defined in IRC
have made no further filings concerning the Motion. Section 265(b)(3)(C), (26 USC 265),
because the Village of Stevensville's
reasonably anticipated amount of
tax-exempt obligations which could
BACKGROUND
be issued by the Village during

Case
v. Village Document
in F.Supp.2d (2012) 08/29/16 Page 3 of 5
any calendar year does not exceed ”) (quoting Kolupa v. Roselle Park Dist., 438 F.3d 713,
$10,000,000. 715 (7th Cir.2006)); Edwards v. Snyder, 478 F.3d 827, 830
(7th Cir.2007); McCready v. Ebay, Inc. ., 453 F.3d 882,
*2 (Counsel Opinion Letter I, Am. Compl. Ex. B, 888 (7th Cir.2006). “A statute of limitations provides an
ECF No. 14–2.) Peterson sent a second letter to the affirmative defense, and a plaintiff is not required to plead
Plaintiff, dated January 15, 2009, essentially affirming facts in the complaint to anticipate and defeat affirmative
the information contained in the 2006 letter. (Counsel defenses. But when a plaintiff's complaint nonetheless
Opinion Letter II, Am. Compl. Ex. F, ECF No. 14–6.) The sets out all of the elements of an affirmative defense,
Plaintiff alleges, based on the affirmative defense raised dismissal under Rule 12(b)(6) is appropriate.” Indep. Trust
by Stevensville, that the information in these letters was Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 935
not true and that Peterson acted reckless or negligently (7th Cir.2012). In determining whether the complaint has
in providing this information. Furthermore, the Plaintiff properly stated a claim for relief, a “reviewing court
alleges that it reasonably relied on the letters and that they [should] draw on its judicial experience and common
were written and sent to the Plaintiff with the purpose of sense.” Iqbal, 556 U.S. 679.
inducing such reliance.
ANALYSIS
LEGAL STANDARD
*3 Peterson moves to dismiss on the basis that the
A motion to dismiss pursuant to Federal Rule of Civil statutory period provided under Michigan law for the
Procedure 12(b)(6) tests the sufficiency of the complaint claim brought against him expired prior to the filing of the
and not the merits of the suit. Gibson v. City of Chi., 910 Amended Complaint. To grant Peterson's Motion on that
F.2d 1510, 1520 (7th Cir.1990). The court presumes all basis, the Court must make three legal conclusions, each of
well-pleaded allegations to be true, views them in the light which is separately contested by the Plaintiff: 1) Michigan
most favorable to the plaintiff, and accepts as true all law rather than Indiana law applies to the Plaintiff's
reasonable inferences to be drawn from the allegations. claim against Peterson; 2) the Plaintiff's claim against
Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, Peterson is one for legal malpractice and not for negligent
608 (7th Cir.1995). misrepresentation; and 3) the limitation period under
Michigan law has expired. Each of these conclusions is
A complaint must contain sufficient factual matter to necessary because Peterson appears to recognize that the
“state a claim that is plausible on its face.” Bell Atl. statutory period has not expired for a legal malpractice
Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, claim in Indiana or for negligent misrepresentation in
167 L.Ed.2d 929 (2007). Although the court must accept Indiana or Michigan.
as true all well-pleaded facts and draw all permissible
inferences in the Plaintiff's favor, it need not accept as As the Seventh Circuit has noted, “before entangling
true “threadbare recitals of a cause of action's elements, itself in messy issues of conflict of laws a court ought to
supported by mere conclusory statements.” Ashcroft v. satisfy itself that there actually is a difference between
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d the relevant laws of the different states.” Barron v. Ford
868 (2008). Legal conclusions can provide a complaint's Motor Co., 965 F.2d 195, 197 (7th Cir.1992). See also
framework, but unless well-pleaded factual allegations Simon v. United States, 805 N.E.2d 798, 801 (Ind.2004)
move the claims from conceivable to plausible, they are (indicating that the first step in any conflicts analysis is
insufficient to state a claim. Id. at 679. to determine if a true conflict exists). In this case the
limitations periods are actually different because legal
A plaintiff can also plead himself out of court if he malpractice claims accrue, that is the limitations period
pleads facts that preclude relief. See Atkins v. City of Chi., on such claims begins to run, at different times in each
631 F.3d 823, 832 (7th Cir.2011); Tamayo v. Blagojevich, state. In Michigan a two-year limitation period is applied
526 F.3d 1074, 1086 (7th Cir.2008) (“A plaintiff ‘pleads to malpractice claims, Mich. Comp. Laws § 600.5805(6),
himself out of court when it would be necessary to and such claims against lawyers “accrue[ ] at the time that
contradict the complaint in order to prevail on the merits.’ person discontinues serving the plaintiff in a professional

Case
v. Village Document
in F.Supp.2d (2012) 08/29/16 Page 4 of 5
or pseudoprofessional capacity as to the matters out of malpractice claims accrue should follow this general rule.
which the claim for malpractice arose, regardless of the Because the parties have not briefed the issue the Court
time the plaintiff discovers or otherwise has knowledge will not conclusively determine if the rule for when a claim
of the claim,” Id. § 600.5838(1). 2 See also Gebhardt v. accrues for statute of limitations purposes is procedural or
O'Rourke, 444 Mich. 535, 554, 510 N.W.2d 900 (1994) substantive for choice of law purposes in this case.
(applying the statute). Indiana also applies a two-year
limitations period, Ind.Code. § 34–11–2–4, but the cause *4 While Peterson argues that the Plaintiff alleges a legal
of action only accrues when “when the plaintiff knew, malpractice claim, he recognizes that such a claim was
or, in the exercise of ordinary diligence, could have timely filed under the relevant Indiana law. (Reply 6, ECF
discovered that an injury has been borne as a result No. 43.) The Court will not resolve here whether the claim
of the tortious act of another,” Pope v. Zanetis, No. was timely filed under Michigan law because the Plaintiff
IP 00–1125–C H/G, 2002 WL 425050 (S.D.Ind. Feb.22, need only state a plausible cause of action. Because the
2002) (citing Diaz v. Carpenter, 650 N.E.2d 688, 691 Indiana statute of limitations for legal malpractice could
(Ind.Ct.App.1995) (citing Wehling v. Citizens Nat'l Bank, apply to this claim, whether or not Michigan substantive
586 N.E.2d 840 (Ind.1992))). If the Court finds that law applies, Peterson's Motion, made on the basis that
the Plaintiff's cause of action against Peterson is for the Plaintiff's claims are barred by Michigan's statute of
legal malpractice, this accrual difference could impact the limitations, will be denied.
outcome of the litigation.
While the Court will not determine here whether
The Court, sitting in diversity jurisdiction, applies the Michigan's rule for accrual of a malpractice claim should
choice of law rules of the forum state—here, Indiana. be carried with its substantive law, the Court notes that
Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496– even if it did the Court would still deny Peterson's Motion
97, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). “Because in because Indiana substantive law could apply to the claim
Indiana statutes of limitations are procedural in nature, in its entirety. Because a choice-of-law determination on
Indiana choice-of-law rules state that the statute of the substantive law applicable to the Plaintiff's claim
limitations of the forum state, Indiana, will apply.” against Peterson will likely be a fact specific inquiry,
Autocephalous Greek–Orthodox Church of Cyprus v. the Court declines to make this determination at this
Goldberg & Feldman Fine Arts, Inc., 717 F.Supp. 1374, early stage of the suit on a relatively limited set of
1385 (S.D.Ind.1989) (citations omitted), aff'd, 917 F.2d facts. Moreover, viewing the facts stated in the Amended
278 (7th Cir.1990). See also Smither v. Asset Acceptance, Complaint most favorably to the Plaintiff, the Court
LLC, 919 N.E.2d 1153, 1158 (Ind.Ct.App.2010) (stating could not conclusively state that Michigan substantive law
in the context of a choice-of-law analysis that a “statute must apply. Indiana “employs a modified lex loci delicti
of limitation is a procedural constraint”); Lehman Bros. analysis” under which “the substantive law of the place
Holdings, Inc. v. Laureate Realty Servs., Inc., No. 1:04– of the wrong will usually govern, ‘unless the state where
CV–1432–RLY–TAB, 2007 WL 2904591, at *10 (S.D.Ind. the tort occurred is an insignificant contact.’ Then Indiana
Sept.28, 2007) (“[F]ederal courts sitting in diversity in looks to the state with the most significant contacts.”
Indiana routinely apply Indiana's statute of limitations, Morgan v. Fennimore, 429 F. App'x 606, 609 (7th Cir.2011)
even where, as here, another statute's substantive law (quoting Simon v. United States, 805 N.E.2d 798, 804
governs the underlying claims at issue.”) (citing cases); (Ind.2004)) (citations omitted). In this case, the Plaintiff
Miller v. Javitch, Block & Rathbone, 397 F.Supp.2d 991, argues that its Amended Complaint indicates that the
1002–03 (N.D.Ind.2005) (“[U]nder Indiana law, statutes harm alleged took place in Indiana, as the opinion letters
of limitation are procedural, rather than substantive, and were sent to the Plaintiff's office in Indiana, where they
are not subject to parties' choice of law disputes.”). were read by employees of the Plaintiff who were then
Therefore, in this case, whether the substantive law of mislead. See Klein v. DePuy, Inc., 506 F.3d 553, 556
Michigan applies to the Plaintiff's claims against Peterson (7th Cir.2007) (“As we have previously stated, Indiana's
or not, it appears that the Indiana statute of limitations lex loci delicti principle points to the location of the
will apply. The parties, however, did not address this injury, not the defendant's corporate headquarters, as the
point of Indiana law. Thus, there is no argument before source of law.”). Although Peterson presents significant
the Court concerning whether Michigan's rule for when facts that could lead to the alternate conclusion that

Case
v. Village Document
in F.Supp.2d (2012) 08/29/16 Page 5 of 5
Michigan's substantive law applies, the Court would read that draws a distinction between the “expression of
opinion in the exercise of professional judgment rendered
the Amended Complaint in the light most favorable to the
upon facts ... fully disclosed and known to all” and the
Plaintiff at this stage to conclude that Indiana law could
summarizing of “facts which could be checked against
apply. Thus, even if Peterson could show that Michigan's
a record.” City Nat'l Bank of Detroit v. Rodgers &
statute of limitations, or its rule governing when the
Morgenstein, 155 Mich.App. 318, 399 N.W.2d 505, 508
limitations period begins to run, should be carried with its
(Mich.Ct.App.1986). In that case the Michigan Appellate
substantive law the Court would still deny the Motion.
Court determined that professional opinions by lawyers
rendered upon fully disclosed facts, unlike summaries of
Finally, Peterson asserts that the Plaintiff failed to state
facts, are not actionable as negligent misrepresentation to
a claim for negligent misrepresentation because Michigan
third parties. Id. at 507. Peterson concedes that Indiana
and Indiana law purportedly bar such claims in the
law on this point “is less clear.” (Reply 3 n. 6, ECF
context of a lawyer negligently providing a legal opinion.
No. 43.) Peterson has not demonstrated that Indiana
The Plaintiff responds that Peterson made statements of
law necessarily draws the same distinction nor has he
both fact and legal opinion in the opinion letters and,
conclusively shown that the statements made by Peterson
therefore, any such bar would not impact its claims against
were professional opinion rendered upon fully disclosed
him. Under Indiana law,
facts as opposed to statements or summaries of facts
*5 One who, in the course of his mixed with legal opinion as the Plaintiff asserts. As with
business, profession or employment, the choice-of-law issue, this issue could only be resolved
or in any other transaction in by the Court upon a more developed factual record.
which he has a pecuniary interest,
supplies false information for the
guidance of others in their business CONCLUSION
transactions, is subject to liability
for pecuniary loss caused to them For the reasons stated above, the Court DENIES
by their justifiable reliance upon the Peterson's Motion to Dismiss [ECF No. 30].
information, if he fails to exercise
reasonable care or competence in SO ORDERED.
obtaining or communicating the
information.
All Citations
U.S. Bank, N.A. v. Integrity Land Title Corp., 929 N.E.2d
742, 747 (Ind.2010) (quoting Restatement (Second) of Not Reported in F.Supp.2d, 2012 WL 2308647
Torts § 552(1)). Peterson relies on Michigan case law
Footnotes
1 In this brief summary of facts, the Court accepts as true, as it must at this
stage, the allegations presented by the Plaintiff in the Amended Complaint.
The parties to this suit should not rely on this factual summary as establishing
any particular facts for any purpose in the broader ligation over these loan
agreements.
2 The statute also provides for a limited discovery rule permitting a plaintiff to
file “within 6 months after the plaintiff discovers or should have discovered the
existence of the claim.” Mich. Comp. Laws § 600.5838(1). Neither party agues,
nor does it appear to the Court, that this rule negates the conflict between
Michigan and Indiana law presented in this case.

Exhibit E
Case
Long v. Barrett, 4:13-cv-00329-CDL
Not Reported Document
in F.Supp.2d (2002) 41-8 Filed 08/29/16 Page 2 of 7
2002 WL 662140
*1 Defendants filed a Motion to Dismiss. Plaintiffs

oppose the Motion. This court now GRANTS the Motion
2002 WL 662140
in part and DENIES the Motion in part.
S.D. Indiana, I. Factual and Procedural Background
Indianapolis Division. In 1992, a bench warrant for forgery was issued by the
Bartholomew County Superior Court for the arrest of
China Ann LONG and Willie Long, Plaintiffs,
China G. Long with a social security number of XXX-XX-
v.
XXXX. The charges stemmed from allegations that Long
Phillip BARRETT, Individually and as a Deputy
forged the signature of her supervisor and collected wages
for the Marion County Sheriff's Department; she did not earn. At the time, Long was employed by Kelly
Richard Davidson, Individually and as a Deputy Services and worked at the Toyota facilities in Columbus.
for the Marion County Sheriff's Department; Although it is not clear whether the information was in
John K. White, Individually and as a Deputy for the warrant, the complaint alleges that China G. Long 2
the Bartholomew County Sheriff's Department; was apparently Caucasian and Defendants do not contest
Deena Pattingill, Individually and as a Deputy for this fact. Eight years later, the bench warrant was reissued
the Bartholomew County Sheriff's Department; identifying the person to be arrested as China Long
The Marion County Sheriff's Department; The residing at 3805 Devon Drive, Indianapolis, Indiana, with
Bartholomew County Sheriff's Department; An a birth date of June 20, 1959, and with the same social
Unnamed Police Officer, Individually and as a Police security number as in the original warrant. It is unclear
whether the warrant listed the person's race.
Officer for the City of Columbus, Indiana; The City
of Columbus, Indiana; Kelly Services, Inc.; and
On November 27, 2000, Deputies Barrett and Davidson
Toyota Industrial Equipment Mfg., Inc., Defendants.
of the Indianapolis Police Department arrested Plaintiff,
No. IP 01–1719–C–T/K. China Long, at her home, 3805 Devon Drive. China
| informed the police that she was not the China Long
Feb. 26, 2002. in the warrant, she had never been to Columbus,
and had a different social security number than the
Attorneys and Law Firms one listed in the warrant. China is African–American.
Despite her protestations, the officers arrested China and
Nathaniel Lee, Lee, Burns & Cossell, Indianapolis, IN, for transported her to the Marion County Jail. According
plaintiffs. to the Complaint, the officers made no attempt to
ascertain her true identity. On November 28, China
Peggy D. Dallmann, Office of the Corporation Counsel,
was transferred to the Bartholomew County Jail by
Duane R. Denton, Bingham McHale, LLP, Kim F. Ebert,
Deputies John White and Deena Pattingill. China was
Ogletree, Deakins, Nash, Smoak & Stewart, Indianapolis,
released on bail on November 29 and on December
IN, Douglas A. Hoffman, Miller, Carson, Boxberger
18, the charges against her were dismissed. On October
& Murphy, Bloomington, IN, John F. Kautzman,
15, 2001, Plaintiff and her husband, Willie Long, filed
Ruckelshaus, Roland, Kautzman, Blackwell & Hasbrook,
suit against the Marion County Sheriff's Department,
John T. Roy, St Paul Staff Counsel Office, Indianapolis,
Deputies Barrett and Davidson, the Bartholomew County
IN, for defendants.
Sheriff's Department, Officers White and Pattingill, an
Unnamed Officer of the Columbus Police Department,
the City of Columbus, Kelly Services, Inc., and
ENTRY ON DEFENDANTS' Toyota Industrial Equipment Mfg. Plaintiffs bring a
MOTION TO DISMISS 1 § 1983 claim against Barrett, Davidson, the Marion
County Sheriff's Department, 3 White, Pattingill, the
JOHN DANIEL TINDER, Judge.
Bartholomew County Sheriff's Department, the Unnamed
Police Officer, and the City of Columbus. The Longs

Case
2002 WL 662140
also claim that Barrett, Davidson, White, and Pattingill complaint merely because it doubts that the plaintiff can
committed the torts of false arrest and imprisonment, that prove the facts it alleges. Neitzke v. Williams, 490 U.S.
the Unnamed Police Officer, Kelly Services, and Toyota 319, 327 (1989). Thus, a defendant's motion to dismiss
maliciously prosecuted China, that Kelly Services and can only be granted if the plaintiff has failed to allege
Toyota committed the tort of intentional infliction of sufficient facts to entitle the plaintiff to relief if the facts
emotional distress, and that all Defendants negligently alleged are taken as true. “[I]f the plaintiff ... pleads facts,
and carelessly altered the warrant. Willie also makes a and the facts show that he is entitled to no relief, the
claim of loss of consortium. Some of the Defendants filed complaint should be dismissed. There would be no point
this Motion to Dismiss as will be described in the sections in allowing such a lawsuit to go any further; its doom is
addressing the various claims that are the subjects of this foretold.” Am. Nurses' Ass'n v. Illinois, 783 F.2d 716, 727
motion. The Plaintiffs oppose the Motion. This court now (7th Cir.1986). With these general principles in mind, the
rules as follows. court now looks at the counts of the complaint that the
Defendants contend are defective.
II. Motion to Dismiss Standard

*2 Under Rule 12(b)(6), a complaint may be dismissed III. Claims Against the Marion
for failure to state a claim upon which relief can be County Sheriff's Department and the
granted. Fed.R.Civ.P. 12(b)(6). A motion to dismiss tests Bartholomew County Sheriff's Department
the sufficiency of the complaint, not the merits of the suit. Defendants first contend that they are not legal entities
See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th subject to lawsuits. Indiana Code section 36–1–4–3
Cir.1990). provides that a “unit” of local government may sue or
be sued. Section 36–1–2–23 provides that a unit is a
Rule 8(a)(2) requires “a short and plain statement of the “county, municipality, or township.” The Marion County
claim showing that the pleader is entitled to relief,” that Sheriff's Department and Bartholomew County Sheriff's
will “give the defendant fair notice of what the plaintiff's Department are none of these. The Sheriff's Departments
claim is and the grounds upon which it rests.” Leatherman have no separate corporate existence and are “merely a
v. Tarrant County Narcotics Intelligence & Coordination vehicle through which the [county] government fulfills its
Unit, 507 U.S. 163, 168 (1993) (citation and quotations policy functions.” Jones v. Bowman, 694 F.Supp. 538, 544
omitted). When considering a motion to dismiss, the (N.D.Ind.1988). Because the Sheriff's Departments are
complaint's allegations are accepted as true and viewed in not proper parties to sue, the counts against them must be
the light most favorable to the plaintiff. See Hentosh v. dismissed.
Herman M. Finch Univ. of Health Sciences/The Chicago
Med. Sch., 167 F.3d 1170, 1173 (7th Cir.1999). *3 Even if Plaintiffs had properly named the
Defendants (meaning Marion and Bartholomew
The court must review the plaintiff's statement of the Counties), Defendants claim that Plaintiffs have
claim to determine whether the plaintiff has set forth failed to plead that their injuries were the result
facts supporting a cause of action that would entitle of an unconstitutional policy, custom, or practice.
them to relief. Conley v. Gibson, 355 U.S. 41, 45–46 Municipalities are liable under § 1983 only when the
(1957); Beam v. IPCO Corp., 838 F.2d 242, 244 (7th municipality, in executing an official policy or practice,
Cir.1988). However, the court is not required to accept has caused a constitutional violation. Monell v. New
legal conclusions, inferences, or allegations unwarranted York City Dep't of Social Servs., 436 U.S. 658, 694
by the facts as presented in the pleadings. Mid–Am. Reg'l (1978). Liability attaches only when the governmental
Bargaining Ass'n v. Will County Carpenters Dist. Council, entity causes the violation; merely showing that an agent
675 F.2d 881, 883 (7th Cir.1982). The accepted standard or employee afflicted an injury is not enough. The
for determining the sufficiency of the complaint does not government cannot be held liable under a respondeat
permit dismissal “unless it appears beyond doubt that the superior theory. Id. at 692–94.
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Conley, 355 U.S. at 45– In this case, the complaint appears to at least plead facts
46. This is a technical determination not based upon the that if true would establish the municipalities' liability. For
veracity of the facts alleged. The court cannot dismiss a example, in paragraph eight of the complaint, Plaintiffs

Case
2002 WL 662140
claim that “Deputy White and Deputy Pattinghill were to benefit the employee personally.” (emphasis added and
at all times relevant to this complaint duly appointed numbering omitted).
and acting police officers of Bartholomew Co. Sheriff's
Dept. and were acting under color of the statutes, *4 Defendants correctly note that the Plaintiffs'
ordinances, regulations, policies, customs, and usages complaint alleges that the acts or omissions of the
of the State of Indiana and Bartholomew County.” Individual Defendants occurred “while they were acting
There is similar language in paragraph six discussing in their official capacity as duly appointed officers of
Deputy Barrett and Deputy Davidson and the Marion the Marion County Sheriff's Department” and that the
County Sheriff's Department. However, other language Defendants “acted in the course and scope of employment
in the complaint appears to plead a respondent superior and the regular course of their duties.” Plaintiffs respond
theory. (Comp. ¶ 2 (“against the Marion County Sheriff's that the complaint alleges merely that the officers were
Department ... as employer of [Barrett and Davidson], ... duly appointed and acting police officers and that the acts
against Bartholomew County Sheriff's Department ... as were committed in the course of employment, which is
employer of [White and Pattingill]”).) Also, the Plaintiffs different than the scope of employment. Although a recent
specifically disavow any § 1983 claim against the Sheriff's Indiana Court of Appeals case has made clear that there
Departments. (Pl.'s Mem. of Law Supporting Their Resp. is a difference between scope of employment and in the
to the Marion County Defendants' Mot. to Dismiss Pl.'s course of employment, Plaintiffs' allegations appear to
Compl. at 1.) Although this court is mindful of the Seventh include both. Bushong v. Williamson, 760 N.E.2d 1090,
Circuit's proclamation in McCormick v. City of Chicago, 1096 (Ind.Ct.App.2001). The concept of “in the course of
230 F.3d 319, 325 (7th Cir.2000), that the plaintiff must employment” refers to the time, place, and circumstances
merely “allege facts that would give the City notice of during which the act took place. The concept of “in
his municipal liability claim,” it is not clear that the the scope of employment” deals with the relationship
Plaintiff in this case has done even that. However, because between the act and the nature and duties of the
these claims are being dismissed for other reasons, this employment. In paragraph six of the complaint, Plaintiff
court need not address the ambiguity in the Plaintiff's claims that “Deputy Barrett and Deputy Davidson were
Complaint. If Plaintiffs choose to refile this claim, they at all times relevant to this complaint duly appointed
should make clear whether they are alleging § 1983 claims and acting police officers of Marion Co. Sheriff's Dept.
against Marion and Bartholomew Counties, and they and were acting under color of statutes, ordinances,
should be mindful that no viable claim can be made regulations, policies, customs and usages of the State of
against a unit of government without an allegation that Indiana and Marion County.” Paragraph eight contains
a federal constitutional violation was the result of an similar language for the Bartholomew County police
unconstitutional policy, custom, or practice. officers. These paragraphs clearly refer to the course of
employment, but also appear to allege that Defendants'
actions were authorized by their employers.
IV. Claims Against Individual Defendants
Furthermore, Plaintiffs have not clearly satisfied
A. State Law Claims
subsection (c) of Indiana Code section 34–13–3–5,
Defendants next claim that the state law claims against
requiring suits against individual employees to clearly
Barrett, Davidson, White, and Pattingill (“the Individual
allege that the acts are outside the scope of employment
Defendants”) must be dismissed because the Defendants
or otherwise subject a municipal employee to personal
were acting within the scope of their employment. Indiana
liability. Because the complaint makes no claim that
Code section 34–13–3–5(b) provides that “[a] lawsuit
Defendants were acting outside the scope of employment,
alleging that an employee acted within the scope of
but rather implies that they were acting within the scope
the employee's employment must be exclusive to the
of employment, the state law claims against the individual
complaint and bars an action by the claimant against the
Defendants are dismissed.
employee personally.” Subsection (c) provides that “[a]
lawsuit filed against an employee personally must allege
that an act or omission of the employee that causes a loss B. § 1983
is: criminal; clearly outside the scope of the employee's Defendants contend that the Individual Defendants are
employment; malicious; willful and wanton; or calculated entitled to qualified immunity, quasi-judicial immunity,

Case
2002 WL 662140
and judicial immunity/Indiana Torts Claim Act immunity.

Police officers are entitled to qualified immunity so long as If an officer executing an arrest
their conduct did “not violate clearly established statutory warrant must do so at peril of
or constitutional rights of which a reasonable person damage liability under section 1983
would have known.” Harlow v. Fitzgerald, 457 U.S. if there is any discrepancy between
800, 818 (1982); Frazell v. Flanigan, 102 F.3d 877, 886 the description in the warrant
(7th Cir.1996). In deciding qualified immunity, the court and the appearance of the person
focuses on the objective reasonableness of the defendant's to be arrested, many a criminal
actions: whether a reasonable police officer could have will slip away while the officer
believed that his conduct was constitutional “in light of the anxiously compares the description
clearly established law and the information he possessed in the warrant with the appearance
at the time.” Frazell, 102 F.3d at 886 (quotations and of the person named in it and
citations omitted). This is a two-part inquiry: (1) whether radios back any discrepancies to his
the alleged conduct sets out a constitutional violation, headquarters for instructions.
and (2) whether the constitutional standards were clearly
Id. at 699 (quoting Johnson, 680 F.2d at 41).
established at the time in question.
In this case, the Individual Defendants arrested China

*5 In this case, the alleged conduct does not set
based on a warrant with the same name and a similar
out a constitutional violation, so there is no need to
birth date. Although China claimed not to be the China
address whether the Individual Defendants are entitled
Long in the warrant, this is hardly enough to make the
to qualified immunity. The Seventh Circuit has upheld
Individual Defendants' actions unreasonable. Given these
district courts' grants of motions to dismiss in similar
facts, this court must follow Seventh Circuit precedent in
circumstances. See Patton v. Przybylski, 822 F.2d 697 (7th
holding that “no reasonable finder of fact” could infer that
Cir.1987); Johnson v. Miller, 680 F.2d 39 (7th Cir .1982).
the Individual Defendants acted unreasonably. Because
In Patton, a police officer pulled over Patton in a routine
the facts pleaded by Long show that she is entitled to no
traffic stop and found a warrant for a man with the
relief, the complaint should be dismissed. The purposes
same name, of the same race, with a similar (but not
behind the doctrine of qualified immunity dictate that the
the same) birth date, but with a different residence.
dismissal of these federal claims against the Individual
Patton proclaimed his innocence, that is, that he was not
Defendants should be with prejudice. They should not
the person named in the warrant, but the police officer
have to defend a second version of these futile claims.
arrested him anyway. The court upheld the district court's
grant of a motion to dismiss, holding that,
V. Claims Against Columbus and Its Police Officers
In these confused and ominous
The City of Columbus filed a separate Motion to Dismiss,
circumstances no reasonable finder
contending that the claims against it should be dismissed
of facts could, we think, infer that
for two reasons. First, Columbus claims that no § 1983
Przybylski acted unreasonably in
claim may be made against it because the Plaintiff has
arresting Patton and transporting
not alleged a pattern, custom, or policy as is required
him to the Schaumburg police
by Monell v. New York City Dep't of Social Servs., 436
station. No more is necessary
U.S. 658, 694 (1978). As discussed in Part III, above,
to exonerate Przybylski. The
in order for a municipality to be liable under § 1983,
Fourth Amendment forbids only
a custom, practice, or policy of the municipality must
unreasonable seizures; the arrest of
have caused the plaintiff's loss. In this case, in paragraph
Patton was not unreasonable.
ten of the complaint, the Plaintiffs allege that “Unnamed
Id. at 700. The court relied on the reasoning of Johnson, Police Officer was at all times relevant to this complaint
in which the person arrested had the same name, but was a duly appointed and acting police officer of the City
of a different race than the actual person described in the of Columbus and was acting under color of the statutes,
warrant: ordinances, regulations, policies, customs, and usages of
the State of Indiana and the City of Columbus.” This is

Case
2002 WL 662140
sufficient under the liberal notice pleading standard to where the Plaintiffs claim that the Unnamed Police Officer
intentionally altered the original warrant, was malicious,
make out a claim that a custom, practice, or policy of
and intentionally tortious. These claims clearly satisfy
Columbus caused Plaintiffs' losses. McCormick v. City of
Indiana Code section 35–13–3–5(c). The Unnamed Police
Chicago, 230 F.3d 319 (7th Cir.2000). However, as in Part
Officer is also not entitled to dismissal on the § 1983 claim
III, above, it does not appear that Plaintiffs have filed
against him/her because of Plaintiffs' allegations of willful
a claim against Columbus alleging violations of § 1983.
misconduct on his/her part. If accepted as true, which they
The only count which names Columbus is Count IV for
must at this stage of the proceedings, those allegations
Negligence. The § 1983 claims are asserted in counts which
could constitute a constitutional violation.
do not list the City of Columbus as a party. Paragraph two
of the complaint specifically lists the City of Columbus
as a Defendant “as the employer of Unnamed Police VI. Willie's Claims
Officer.” Given these statements, any § 1983 claim against Defendants also claim that Willie's claim of loss of
Columbus is dismissed without prejudice. If Plaintiffs consortium is derivative in nature, meaning it gets its
choose to file such a claim in an amended complaint, viability from the claim of the injured spouse. Nelson
they should make clear that they are alleging a § 1983 v. Denkins, 598 N.E.2d 558, 563 (Ind.Ct.App.1992).
claim against Columbus, and again, should be mindful Because China has no valid claims against the Individual
of the pleading requirements for § 1983 claims against a Defendants, Marion County Sheriff's Department, or the
municipality. Bartholomew County Sheriff's Department, Willie's loss
of consortium claims against them must be dismissed.
*6 As to the negligence claim, Columbus claims that
it is immune pursuant to Indiana Code section 34–13–
3–3(5), 4 providing that a governmental entity is not VII. Conclusion
liable for a loss caused by the “initiation of a judicial For the foregoing reasons, the Defendants' Motion to
or administrative proceeding.” Plaintiffs claim that the Dismiss is GRANTED in part and DENIED in part.
City of Columbus “negligently and carelessly altered the The state law claims against Barrett, Davidson, White,
warrant for the arrest of a criminal named China R. and Pattingill, and all of the claims against the Marion
Long, which mistake transformed the innocent China County Sheriff's Department and the Bartholomew
Ann Long into a fleeing felon.” Assuming the Plaintiffs' County Sheriff's Department are DISMISSED without
allegations are true (as this court must at this stage prejudice. All claims against the City of Columbus are
of the proceedings), the question becomes whether the also DISMISSED without prejudice. Prejudice will attach
negligent altering of a warrant is the initiation of a judicial to these dismissals if an amended complaint, adequately
proceeding. Most cases discussing this section of the ITCA pleading § 1983 and the state law claims discussed herein,
involve malicious prosecution claims. See e.g., Clifford is not filed within thirty days of this date.
v. Marion County Prosecuting Attorney, 654 N.E.2d
805, 808 (Ind.Ct.App.1995). Although Plaintiffs' claims *7 The § 1983 claims against Barrett, Davidson, White,
against Columbus do not involve malicious prosecution, and Pattingill in their individual capacities will be
her alleged loss certainly occurred as a result of the DISMISSED with prejudice against refiling, but no final
State's initiation of the judicial proceeding against her order or judgment pursuant to Federal Rule of Civil
culminating in her arrest and detainment. The negligence Procedure 54(b) or 58 will be entered until judgment is
claim against Columbus is therefore dismissed. entered on all other claims in this cause of action. All of the
claims are related and involve common facts so it would
As a final matter, although not raised, this court addresses be inefficient to enter a partial judgment at this time.
the viability of the claim against the Unnamed Police
Officer working for the City of Columbus. As discussed
All Citations
in Part IV, above, the state law claims against the other
Individual Defendants are being dismissed. The same Not Reported in F.Supp.2d, 2002 WL 662140
action is not appropriate for the Unnamed Police Officer

Case
2002 WL 662140
Footnotes
1 This Entry is a matter of public record and is being made available to the
public on the court's web site, but it is not intended for commercial publication
either electronically or in paper form. Although the ruling or rulings in this Entry
will govern the case presently before this court, this court does not consider
the discussion to be sufficiently novel or instructive to justify commercial
publication of the Entry or the subsequent citation of it in other proceedings.
2 The China Long named in the original warrant is referred to as both China
G. Long and China R. Long in the Plaintiffs' Complaint. As the court does
not know which is correct, the court will use the same references to the other
China Long that were used in the complaint despite the variances.
3 The court should qualify this by saying Plaintiffs are perhaps asserting § 1983
claims against the Marion and Bartholomew County Sheriff's Departments
because, as discussed later, the Plaintiffs specifically disavow these claims
in their brief.
4 Columbus actually cites to subsection (6). However, subsection (5) contains
the language that is quoted in its brief.

Martinez Et Al V Mentor Worldwide LLC Et Al

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Case 4:13-cv-00329-CDL Document 41 Filed 08/29/16 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

IN RE MENTOR CORP. OBTAPE MDL No. 2004

DEFENDANT MENTOR WORLDWIDE LLC’S

summary judgment on all counts of Plaintiffs’ Complaint. Plaintiffs’ substantive claims

Dated: August 29, 2016 Respectfully submitted,

Designated Lead Counsel for Defendant

IN RE: MENTOR CORP. OBTAPE TRANSOBTURATOR

following counsel this 29th day of August, 2016:

Attorneys for Plaintiffs Gloria and Martin Martinez

IN THE UNITED STATES DISTRICT COURT

IN RE MENTOR CORP. OBTAPE MDL Case No. 2004

DEFENDANT MENTOR WORLDWIDE LLC’S MEMORANDUM

Defendant Mentor Worldwide LLC (“Mentor”) is entitled to summary judgment

on all counts of Plaintiffs Gloria and Martin Martinez’s Complaint because:

 Their substantive claims are time-barred by the applicable statutes of

 Mr. Martinez’s derivative loss of consortium claim fails in the absence of a

UNDISPUTED FACTS RELEVANT TO THIS MOTION

premised on undisputed facts unique to Plaintiffs Gloria and Martin Martinez.

manufacturing defect; (4) strict liability—failure to warn; (5) strict liability—defective

concealment; (11) negligent misrepresentation; (12) negligent infliction of emotional

Indiana citizens, all of Mrs. Martinez’s ObTape-related medical treatment occurred in

for their action. (Id. ¶ 6.)

Summary judgment should be granted where “there is no genuine dispute as to

facts.” Scott v. Harris, 550 U.S. 372, 380 (2007).

A. Indiana’s Statutes of Limitations Apply to Plaintiffs’ Claims.

ObTape action direct-filed in Coloplast MDL, because plaintiffs designated Indiana as

a plaintiff’s claims. 1st Source Bank v. Vill. of Stevensville, 3:11-CV-205-TLS, 2012 WL

Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts,

Accordingly, Indiana’s statutes of limitations apply here.

B. Plaintiffs’ Substantive Claims Are Time-Barred.

personal injury allegedly caused by ObTape. Roy, 2016 WL 1452400, at *2.

before filing suit).

claims filed nearly ten years later are therefore time-barred.

C. The Consortium Claim Fails in the Absence of a Viable Claim.

The consortium claim—which is derivative in nature—also fails for lack of a viable

2 Although Indiana applies a discovery rule to express warranties “explicitly extend[ing]

extinguishes Mr. Martinez’s derivative consortium claim. Mentor is therefore entitled to

summary judgment on all claims.

Dated: July 29, 2016 Respectfully submitted,

Designated Lead Counsel for Defendant

IN THE UNITED STATES DISTRICT COURT

IN RE MENTOR CORP. OBTAPE MDL No. 2004

DEFENDANT MENTOR WORLDWIDE LLC’S

A. Plaintiff’s ObTape Implant.

1. Mrs. Martinez was surgically implanted with ObTape by Dr. David

of John Q. Lewis (“Lewis Decl.”).)

as Ex. B to Lewis Decl.)

4. Plaintiffs direct-filed their case against Mentor in the Southern District of

2013. (Doc. 1, Short Form Compl.; Doc. 5.)

5. Plaintiffs assert the following products liability claims: (1) negligence;

liability—failure to warn; (5) strict liability—defective product; (6) breach of express

misrepresentation; (12) negligent infliction of emotional distress; (13) violation of

consortium; and (17) punitive damages. (Id. ¶ 13.)

6. Plaintiffs are Indiana citizens, all of Mrs. Martinez’s ObTape-related

Short Form Compl. ¶ 5.)

Dated: August 29, 2016 Respectfully submitted,

5. Social Securi

6. Date and pla 4BO"OUPOJP 59

Date of marriage:

.BSJP.BSUJOF[ WBHJOBMMZ.BOEZ.BSUJOF[ WBHJOBMMZ

(a) Date (or year) of application:

(d) Period of disability:

(e) Amount awarded: "QQSPYJNBUFMZ