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Urbieta v. Mentor Corp.

United States District Court, D. Minnesota

July 19, 2018

Graciela Urbieta and Mateo Urbieta, Plaintiffs,
Mentor Corporation and Mentor Worldwide LLC, Defendants.

          Daniel 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.

          Dustin 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.




         This 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.


         The 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.

         After 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.[1] See Order [Docket No. 71].

         At the 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).

         On May 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 punitive damages.[2]

         Mentor 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[3]


         A. Standard of Review

         Mentor argues that “[s]ince this is an error of law, review is de novo.” Obj. at 2 (citing E. Coast Test Prep LLC v. 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”); Best Buy Stores, L.P. v. Developers Diversified Realty Corp., ...

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