Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rogers v. Mentor Corporation

United States District Court, D. Minnesota

May 15, 2018

Deborah Ann Rogers, Plaintiff,
v.
Mentor Corporation and Mentor Worldwide, LLC, Defendants. Christina P. Latta, Plaintiff,
v.
Mentor Corporation and Mentor Worldwide, LLC, Defendants. Victoria Kearse, Plaintiff,
v.
Mentor Corporation and Mentor Worldwide, LLC, Defendants. Samantha Shirey and Brian Shirey, Plaintiffs,
v.
Mentor Corporation and Mentor Worldwide, LLC, Defendants. Melissa Robinson Watson, Plaintiff,
v.
Mentor Corporation and Mentor Worldwide, LLC, Defendants. Betty Lou Shaffer, Plaintiff,
v.
Mentor Corporation and Mentor Worldwide, LLC, Defendants. Margie H. Greenman, Plaintiff,
v.
Mentor Corporation and Mentor Worldwide, LLC, Defendants. Michele Rene Jackson, Plaintiff,
v.
Mentor Corporation and Mentor Worldwide, LLC, Defendants. Andrea Jean Rupert, Plaintiff,
v.
Mentor Corporation and Mentor Worldwide, LLC, Defendants. Carrie M. Klum and Anthony D. Klum, Plaintiffs,
v.
Mentor Corporation and Mentor Worldwide, LLC, Defendants. Graciela Urbieta and Mateo Urbieta, Plaintiffs,
v.
Mentor Corporation and Mentor Worldwide, LLC, Defendants. Frances Alvarado, Plaintiff,
v.
Mentor Corporation and Mentor Worldwide, LLC, Defendants. Libby M. Hall, Plaintiff,
v.
Mentor Corporation and Mentor Worldwide, LLC, Defendants.

          ORDER

          STEVEN E. RAU UNITED STATES MAGISTRATE JUDGE.

         The above-captioned cases (the “Mentor cases”) come before the undersigned pursuant to the Administrative Order [Doc. No. 9] directing the undersigned to coordinate pretrial matters and pursuant to 28 U.S.C. § 636(b)(1)(A) and District of Minnesota Local Rule 72.1.[1] Pursuant to the Administrative Order and subsequent agreement by the parties and the Court-as explained in further detail below-Plaintiffs filed a Motion for Leave to File an Amended Complaint to Add a Claim for Punitive Damages [Doc. No. 29]. The parties chose two cases in which Plaintiffs' motion would be heard with the understanding that the order ruling on the motion would be issued in all Mentor cases.[2] For the reasons stated below, the Court denies the motion in Jackson and grants the motion in Urbieta.

         I. BACKGROUND

         Plaintiffs are women who were implanted with ObTape, the brand name of a transobturator vaginal sling device that was “designed, manufactured, packaged, labeled and sold by Mentor”[3] to treat Plaintiffs for stress urinary incontinence.[4] See, e.g., (Compl.) [Doc. No. 1-1 ¶¶ 1, 16]. Plaintiffs allege that they “suffered serious and permanent bodily injuries, including erosion of the ObTape medical device through [their] internal bodily tissues, chronic infections, pain, exacerbation of . . . urinary incontinence, and the need for multiple additional surgical procedures and medical treatment as well as the need for extensive future medical care.” (Id. ¶ 19). Mentor marketed ObTape and introduced it to the United States market in 2003. (Id. ¶¶ 7- 8). Plaintiffs allege that Mentor conducted only limited, inadequate testing prior to introducing ObTape to the U.S. market, and that it “knowingly and deliberately made material misrepresentations to the Food & Drug Administration [‘FDA'] concerning the safety, efficacy, design, and manufacture of ObTape.” (Id. ¶¶ 8-10). Plaintiffs allege that Mentor did not perform any “safety or efficacy testing in human vaginal tissues to confirm that the medical device was safe and effective for use in women” and “continued to manufacture, market, distribute, and sell [ObTape] to thousands of women . . .” until 2006. (Id. ¶¶ 11-14). Plaintiffs allege claims of strict liability, negligence, breach of express warranty, breach of implied warranty, common law fraud, constructive fraud, and negligent and intentional misrepresentation against Mentor. (Id. ¶¶ 20-104).[5]

         Plaintiffs filed their cases in Minnesota state courts, and Mentor removed them to federal court. (Notice of Removal) [Doc. No. 1]. The cases were then transferred to the United States District Court for the Middle District of Georgia for pretrial proceedings in 2013, and were remanded to this District in 2017. (Conditional Transfer Order) [Doc. No. 3]; (Conditional Remand Order) [Doc. No. 4]. The Honorable John R. Tunheim, Chief District Judge, ordered that the undersigned coordinate all Mentor cases for settlement conferences and a pretrial scheduling order. (Admin. Order). The undersigned a held a settlement conference in all Mentor cases on December 4-6, 2017, during which six cases settled. (Minute Entries) [Doc. Nos. 15- 17]. The undersigned entered a Pretrial Scheduling Order in the remaining cases, instructing Plaintiffs and Mentor to each select one case in which Plaintiffs would seek Court approval to amend the complaint to add a claim for punitive damages. [Doc. No. 26 at 4]. The parties chose Jackson v. Mentor Corp., No. 13-cv-768 (SRN/KMM) (D. Minn.), and Urbieta v. Mentor Corp., No. 13-cv-1927 (ADM/LIB) (D. Minn.), as so-called “bellwether” punitive damages cases, with the understanding that any order issued by the undersigned would be issued in all Mentor cases. See (Order Dated Jan. 29, 2018) [Doc. No. 73].

         The Court held oral argument and sua sponte raised the issue of the appropriate standard for adding punitive damages claims. See (Order Dated Mar. 16, 2018) [Doc. No. 104]. Specifically-and as described more fully below-a split among United States Magistrate Judges in this District regarding whether a court should follow Minnesota Statute section 549.191[6] or Rule 15 of the Federal Rules of Civil Procedure[7] when considering this type of motion developed recently. See (id.); In re Bair Hugger Forced Air Warming Devices Prods. Liab. Litig., No. 15-md-2666 (JNE/FLN), 2017 WL 5187832 (D. Minn. July 27, 2017) (Noel, Mag. J.) (determining Rule 15 governs);[8] Order Dated Mar. 8, 2018, Inline Packaging, LLC v. Graphic Packaging Int'l, LLC, No. 15-cv-3183 (ADM/LIB) (D. Minn.) [Doc. No. 534] (Brisbois, Mag. J.) [hereinafter Inline Packaging Order] (determining the punitive damages pleading statute governs).[9] The parties submitted supplemental briefing addressing the issue, and the matter is now ripe for adjudication.[10] See (Order Dated Mar. 16, 2018); (Mentor's Suppl. Opp'n to Pls.' Mot., “Mentor's Suppl. Mem.”) [Doc. No. 111]; (Pls.' Suppl. Mem. in Supp. of Pls.' Mot., “Pls.' Suppl. Mem.”) [Doc. No. 113].

         II. DISCUSSION

         A. Legal Standard

         First, this Court must determine the appropriate standard to apply. Minnesota law prohibits seeking punitive damages in an initial complaint. Minn. Stat. § 549.191. Instead, a party may amend its pleading to claim punitive damages if it shows prima facie evidence of the factual basis for the claim. Id. In contrast, Rule 15 of the Federal Rules of Civil Procedure states that a party may amend its pleadings-regardless of the purpose of the amendment-if “justice so requires.” Unsurprisingly, Plaintiffs argue Rule 15 applies; in contrast, Mentor argues the punitive damages pleading statute applies. (Pls.' Suppl. Mem.); (Mentor's Suppl. Mem.). For the reasons described below, the Court concludes Rule 15 applies.

         1. District History

         This District has a long and consistent history of evaluating amendments to add claims of punitive damages under the punitive damages pleading statute in diversity cases where state law governs the rule of decision. See Bair Hugger, 2017 WL 5187832, at *1 n.1 (citing cases). In 1990, the Honorable Bernard P. Becker, United States Magistrate Judge, concluded that Rule 15 and the punitive damages pleading statute do not directly conflict. See Sec. Sav. Bank v. Green Tree Acceptance, Inc., No. 3-89-28, 1990 WL 36142, at *2 (D. Minn. Mar. 22, 1990). Specifically, he stated that Rule 15 addresses whether a party may amend its pleadings generally, while the punitive damages pleading statute addresses “whether or not a party should be permitted to assert a claim for punitive damages.” Id. Judge Becker stated that Rule 15 “does not even attempt to address the issue posed” in the statute. Id. Thus, Judge Becker held that the punitive damages pleading statute must be applied.[11] Id. at *3. Since then, courts in this District-including the undersigned-continued to apply the punitive damages pleading statute when considering whether a party may amend its pleading to claim punitive damages. See, e.g., In re Levaquin Prods. Liab. Litig., No. 08-cv-5743 (JRT), 2010 WL 7852346, at *5-6 (D. Minn. Nov. 9, 2010) (Tunheim, J.); Healey v. I-Flow, LLC, 853 F.Supp.2d 868, 872 (D. Minn. 2012) (Keyes, Mag. J.); Streambend Props. III, LLC v. Sexton Lofts, LLC, 297 F.R.D. 349, 360-61 (D. Minn. 2014) (Rau, Mag. J., as adopted by Davis, C.J.). But in 2010, the United States Supreme Court issued its decision in Shady Grove Orthopedic Assocs., P.A. v. Allstate Insurance Co., 559 U.S. 393 (2010), which in turn caused the Honorable Franklin L. Noel, United States Magistrate Judge, to re-evaluate the District's position. See generally Bair Hugger, 2017 WL 5187832. Judge Noel found that Rule 15 applies. Id. at *4. Eight months later, the Honorable Leo I. Brisbois, United States Magistrate Judge also examined this issue and came to the opposite conclusion-that the punitive damages pleading statute applies. Inline Packaging Order at 10.

         2. Shady Grove and Bair Hugger

         In Shady Grove, the Supreme Court considered whether a New York state statute precluded the use of Rule 23 of the Federal Rules of Civil Procedure to maintain a class action. 559 U.S. at 396. The Court clarified some of its past holdings regarding the analysis required when a state law-which typically applies in a diversity action-conflicts with the Federal Rules of Civil Procedure. See 559 U.S. at 398.[12] Five justices stated that a court considering this issue “must first determine whether [the Federal Rule] answers the question in dispute.” Id. Finding that Rule 23 answers the question of “whether Shady Grove's suit may proceed as a class action, ” the Court next considered whether Rule 23 was valid under the Rules Enabling Act. Id. at 399, 406. Both the plurality and the concurrence found Rule 23 was authorized under the Rules Enabling Act, 28 U.S.C. § 2072(b), but they applied different analyses. Compare Id. at 407 (plurality opinion) (analyzing whether the Rule is procedural-and therefore valid-in the sense that “it governs only the manner and means by which the litigants' rights are enforced” (internal quotation marks omitted)), with Id. at 431 (Stevens, J., concurring in part and concurring in the judgment) (analyzing whether application of Rule 23 “would abridge, enlarge, or modify New York's rights or remedies, and thereby violate the Enabling Act”); see also 28 U.S.C. § 2072(b) (stating that the Federal Rules “shall not abridge, enlarge or modify any substantive right”).

         In Bair Hugger, Judge Noel observed that prior decisions considering amendments to add punitive damages claims did not consider Shady Grove. 2017 WL 5187832, at *1. Judge Noel then evaluated whether Rule 15 or the punitive damages pleading statute should apply to plaintiffs' motion to amend. See Id. at *2-4. Judge Noel found that Rule 15 and the statute conflict because Rule 15 “answers the question in dispute.” Id. at *4 (internal quotation marks omitted); see also Shady Grove, 559 U.S. at 398 (Scalia, J.). Specifically, Judge Noel perceived a conflict because the punitive damages pleading statute required “prima facie evidence of deliberate disregard for the rights and safety of others, ” whereas Rule 15 had no such requirement. Id. Judge Noel then determined that Rule 15 was valid under the Rules Enabling Act under both the plurality's test and the concurrence's test. Id. at *4. Specifically, Judge Noel found that “the procedural pleading statute for punitive damages is . . . not a ‘judgment about the scope of state-created rights and remedies, ' 559 U.S. at 432 (Stevens, J., concurring), but a judgment about how Minnesota courts should operate.” Id. Thus, Judge Noel concluded that Rule 15 governed the plaintiffs' motion to amend their pleadings.[13] Id.

         In Inline Packaging, Judge Brisbois found that there was no conflict between Rule 15 and the punitive damages pleading statute. Id. at 8. More specifically, Judge Brisbois concluded that the “state statute . . . does not preclude the application of the Federal Rule[, ]” and “at least one Minnesota United States District Court has already concluded that ‘[t]here is no direct conflict between Federal Rule 15(a) and section 549.191.'” Id. (alteration in original) (quoting Sec. Sav. Bank, 1990 WL 36142, at *2). Because a federal court has discretion to allow the amendment under Rule 15, Judge Brisbois reasoned, that discretion “does not preclude or even conflict with the consideration of whether a party has also complied with” the punitive damages pleading statute. Id.

         3. Plaintiffs' Motion

         As described above, Judge Noel's and Judge Brisbois's opinions created a split in this District in the last eight months regarding whether the punitive damages pleading statute or Rule 15 governs an amendment to add a punitive damages claim. See, e.g., Ramirez v. AMPS Staffing, Inc., No. 17-cv-5107 (DWF/BRT), 2018 WL 1990031, at *6 (D. Minn. Apr. 27, 2018) (Thorson, Mag. J.) (acknowledging the split in the District but determining that “the outcome of the motion would be same regardless of which standard is applied”). Judge Brisbois's order was issued after Plaintiffs filed their motion, but before oral argument; the Court then raised this issue and requested supplemental briefing.

         Recently, the undersigned considered a similar issue with respect to Minnesota Statute section 604.18-which governs amendments to add bad faith insurance claims-and determined that Rule 15 governed the amendment to the pleadings. See Selective Ins. Co. of S. Carolina v. Sela, No. 16-cv-4077 (PJS/SER), 2018 WL 1960450 (D. Minn. Apr. 26, 2018).[14] For reasons similar to the reasoning articulated in Selective, the Court concludes Rule 15 governs amendments to add punitive damages claims.

         4. Rule 15 and Related Federal Rules

         Under the opinion of five justices in Shady Grove and the Supreme Court's predecessor cases, the first question is whether Rule 15 “answers the question in dispute.” See 559 U.S. at 398 (citing Burlington N. R.R. Co. v. Woods, 480 U.S. 1, 4-5 (1987)). Here, the question is whether Plaintiffs may amend their complaints to add a punitive damages claim. Rule 15 applies to amended pleadings, regardless of the nature of the amendment, and answers this question by allowing an amendment “when justice so requires.”

         Both the punitive damages pleading statute and Rule 15 purport to govern the requirements a party that seeks to amend its pleading to add a punitive damages claim must meet. But the standard each requires is different. Section 549.191 requires “affidavits showing the factual basis for the claim.” If the court “finds prima facie evidence in support of the motion, ” the motion “shall” be granted. § 549.191. Thus, the punitive damages pleading statute requires that the moving party submit prima facie evidence to the court.

         Rule 15 has no such evidentiary standard. Its liberal standard for granting the motion- when justice so requires-demonstrates “that amendments should be allowed, unless certain limited exceptions are present” and is not limited to the type of amendment the moving party seeks. See Selective, 2018 WL 1960450, at *5; see also Foman v. Davis, 371 U.S. 178, 182 (1962) (stating that an amended pleading should be allowed unless there is a reason such as “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.”). As noted in Selective, Rule 15 is better understood in the context of Rules 8, 9, and 12. 2018 WL 1960450, at *4; see also Karnatcheva v. JPMorgan Chase Bank, N.A., 704 F.3d 545, 548 (8th Cir. 2013) (“We apply federal pleading standards-Rules 8 and 12(b)(6)-to state the substantive law to determine if a complaint makes out a claim under state law.”).

         Under Rule 8, “a short and plain statement of the claim showing that the pleader is entitled to relief” is required “to give the defendant fair notice of what the claim is and the grounds upon which is rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (cleaned up). This “liberal notice pleading” requirement is restricted in two ways. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (“The liberal notice pleading of Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus litigation on the merits of a claim.”).

         First, Rule 9 requires that certain matters be pleaded with more specificity. The most common example is its requirement that a party “alleging fraud or mistake . . . state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). Rather than alter notice pleading, however, Rule 9(b) “simply necessitates a higher degree of notice” and a court “must interpret the requirements of Rule 9(b) in harmony with the principles of notice pleading.” Abels v. Farmers Commodities Corp., 259 F.3d 910, 920 (8th Cir. 2001) (internal quotation marks omitted).

         Second, the Supreme Court has provided guidance regarding what is required in a pleading through its analysis of motions to dismiss for failure to state a claim under Rule 12(b)(6) in two seminal decisions: Twombly, cited above, and Ashcroft v. Iqbal, 556 U.S. 662 (2009).

[T]hese cases stand for the general proposition that Rule 8 “does not require ‘detailed factual allegations, '” but claims “must [nevertheless] contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 570). That is, “[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Id. (internal quotation marks omitted) (citations omitted) (second alteration in original).

Selective, 2018 WL 1960450, at *5.

         The pleading standards described in Iqbal and Twombly apply to an amended pleading considered under Rule 15. An amended pleading should be permitted when justice so requires, which excludes an amended pleading that is futile. See Foman, 371 U.S. at 182.[15] Futility, in turn, is measured by determining whether the amended pleading could “withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Zutz v. Nelson, 601 F.3d 842, 850 (8th Cir. 2010) (internal quotation marks omitted). “[A]nalysis under Rules 15 and 12(b)(6) generally requires a court not consider matters outside the pleadings to determine whether leave to amend should be given.” Selective, 2018 WL 1960450, at *6.

         In contrast, the punitive damages pleading statute requires a court to perform what is often referred to as a gatekeeping function by examining submissions outside the pleadings to determine whether the submissions amount to prima facie evidence of punitive damages. See generally Sorin Grp. USA, Inc. v. St. Jude Med., S.C., Inc., No. 14-cv-4023 (RHK/JJK), 2015 WL 12803583 (D. Minn. Sept. 28, 2015) (Keyes, Mag. J.). This requirement “presents a stark contrast to the usual analysis where a federal court need only consider whether the pleading ‘contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'” Selective, 2018 WL 1960450, at *7 (alteration in original) (quoting Iqbal, 556 U.S. at 678).

         Thus, the Court concludes that Rule 15 answers the question of whether Plaintiffs may amend their complaints.[16] See Shady Grove, 559 U.S. at 398 (stating that if a Federal Rule answers the question in dispute, it governs unless the Rule is invalid); Bair Hugger, 2017 WL 5187832, at *4 (concluding Rule 15 governs whether a plaintiff may amend a complaint to add a punitive damages claim).

         5. Validity of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.