United States District Court, D. Minnesota
J. Thornburgh, Esq., Aylstock, Witkin, Kreis & Overholtz,
PLLC, Pensacola, FL; and Yvonne M. Flaherty, Esq., Lockridge
Grindal Nauen PLLP, Minneapolis, MN, on behalf of Plaintiffs.
Bradley Rawlin, I, Esq., and John Q. Lewis, Esq., Tucker
Ellis LLP, Cleveland, OH; Jan R. McLean Bernier, Esq., and
Tracy J. Van Steenburgh, Esq., Nilan Johnson Lewis PA,
Minneapolis, MN, on behalf of Defendants.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
matter is before the undersigned United States District Judge
for a ruling on Defendants Mentor Corporation and Mentor
Worldwide LLC's (collectively, “Mentor”)
Objection [Docket No. 115] to Magistrate Judge Steven E.
Rau's May 15, 2018 Order [Docket No. 114]
(“Punitive Damages Order”) granting Plaintiffs
Graciela Urbieta and Mateo Urbieta's (collectively, the
“Urbietas”) Motion to Alter/Amend/Supplement
Pleadings [Docket No. 28]. For the reasons set forth below,
Mentor's Objection is overruled.
Urbietas are members of a group of plaintiffs (collectively,
“Plaintiffs”) who have filed cases against Mentor
based upon Mentor's design, manufacture, and sale of a
transobturator vaginal sling device (“ObTape”)
used for treating urinary incontinence. See Punitive
Damages Order at 5. The Urbietas allege that the ObTape was
defective and caused “serious and permanent bodily
injuries, including erosion of the ObTape medical device
through [Graciela Urbieta's] 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.” Compl. [Docket No.
1-1]. Plaintiffs assert claims for strict liability,
negligence, breach of express and implied warranties, common
law and constructive fraud, negligent and intentional
misrepresentation, and loss of consortium.
the cases were remanded from an MDL court to the District of
Minnesota, Chief Judge John R. Tunheim assigned Judge Rau to
coordinate the cases for settlement and a pretrial scheduling
order. [Docket No. 10] (“Administrative Order”).
Judge Rau instructed Plaintiffs and Mentor to each select a
case in which motions to add claims for punitive damages
would be filed. Pretrial Scheduling Order [Docket No. 24] 4.
The Urbieta case and Jackson v. Mentor
Corp., No. 13-cv-768 (SRN/KMM) (D. Minn) were selected
as “bellwether” punitive damages cases, with the
understanding that any order issued by Judge Rau would be
issued in all the cases. See Order [Docket No. 71].
March 16, 2018 hearing on the motions to add punitive damages
claims, Judge Rau raised the issue of the appropriate
standard for amending the pleadings to add punitive damages
claims, and ordered the parties to submit supplemental
briefing regarding whether the motions should be analyzed
under Rule 15 of the Federal Rules of Civil Procedure or,
alternatively, Minnesota Statute § 549.191. See
Order [Docket No. 98]. Judge Rau recognized that magistrate
judges in this district have recently reassessed their
earlier positions on this issue in light of Shady Grove
Orthopedic Associates, P.C. v. Allstate Ins. Co., 559
U.S. 393 (2010). The results have been inconsistent. See
In re Bair Hugger Forced Air Warming Devices Prods. Liab.
Litig., MDL No. 15-2666, 2017 WL 5187832 (D. Minn. July
27, 2017) (finding that Rule 15 applies); Inline
Packaging, LLC v. Graphic Packaging Int'l, LLC, No.
15-3183 (D. Minn. Mar. 8, 2018) (finding that Minn. Stat.
§ 549.191 applies).
15, 2018, Judge Rau ruled that the motions to amend would be
evaluated under Rule 15. After assessing Plaintiffs'
allegations, Judge Rau concluded “that as of July 16,
2004, Mentor knew facts that created a high probability of
injury.” Punitive Damages Order at 26. Thus, only those
Plaintiffs who were implanted with ObTape after July 16,
2004, were permitted to amend their complaints to claim
objects to the conclusion in the Punitive Damages Order's
that Rule 15 is the applicable standard. Mentor contends that
Minn. Stat. § 549.191 applies, and that Judge Rau was
therefore required to consider the admissible evidence rather
than merely considering Plaintiffs' allegations.
Plaintiffs respond that Judge Rau's analysis is proper
and should be upheld
Standard of Review
argues that “[s]ince this is an error of law, review is
de novo.” Obj. at 2 (citing E. Coast Test Prep LLC
v. Allnurses.com. Inc., 167 F.Supp.3d 1018, 1021 (D.
Minn. 2016)). The Court disagrees. The Eighth Circuit and
courts in this district have consistently held that a motion
to amend to assert punitive damages is a nondispositive
motion subject to deferential review in the district court.
See, e.g. Daley v. Marriott Int'l Inc.,
415 F.3d 889, 893 n.9 (8th Cir. 2005) (viewing motions to
amend as a “nondispositive pretrial motion”);
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