A federal judge in Georgia decided to allow depositions by Mentor Corp. founder and CEO and its president in a product liability lawsuit, after an earlier decision to reverse his previous ruling and send the case back to a New Jersey court.
Judge Clay Land of U.S. District Court for Middle Georgia initially ruled in August that Geraldine Doria was not entitled to punitive damages in her lawsuit against the company, which made the ObTape transobturator vaginal sling until March 2006. Land found that Food & Drug Administration approval preempts states’ rules on medical device company liability.
But in a Nov. 24 ruling, Land vacated his order denying punitive damages, agreeing with Doria’s claim that the New Jersey Products Liability Act still applies in her case. That decision sent the case back to the Garden State and prompted Doria to seek to introduce separate depositions from Mentor founder and CEO Christopher Conway and president Joshua Levine. Mentor moved to quash the depositions, arguing that Conway and Levine lacked any material knowledge in the case and that the information sought in the depositions could be ascertained by other means.
But Land squished the motion to quash, writing that the executives testified in an earlier case that they do, in fact, have first-hand knowledge pertaining to Doria’s case — despite their avowals to the contrary in the depositions.
“Here, both Conway and Levine stated in their declarations that they have no unique first-hand knowledge regarding ObTape or the claims asserted in Plaintiffs’ complaints. … However, Plaintiffs point to prior testimony that Conway and Levine gave in the California state court case of Seeno v. Mentor Corp., which suggests that Conway and Levine do have some direct, first-hand knowledge of Mentor’s decisions regarding the marketing and sales of ObTape, as well as Mentor’s actions related to the FDA’s regulation and approval of ObTape,” Land wrote, according to court documents. “From this, the Court concludes that Conway and Levine have sufficient first-hand knowledge of discoverable information regarding ObTape to warrant their depositions in this matter.”
Land also noted the discovery of more than 18,000 new documents in the Doria case that weren’t available when the California case was tried. And Doria’s lawyers took depositions from people who didn’t testify in the prior lawsuit, he wrote.
“Plaintiffs contend that they should be permitted to question Conway and Levine with regard to this new discovery if it pertains to their specific activities related to ObTape. The Court agrees,” Land wrote. “Furthermore, Plaintiffs represent that they will not re-explore topics that were adequately covered in the previous testimony of Levine and Conway. Finally, based on the representations of the parties, the depositions of nearly all current and former Mentor employees who were to be deposed in this action should have been completed by now, so the parties should be able to narrow the scope of questioning to be directed to Conway and Levine.”
Mentor’s ObTape device was designed to provide support to the vaginal wall, reinforcing the muscles that control the flow of urine, for women suffering from stress urinary incontinence. But unlike other, similar devices, the Mentor product was not made of woven material, meaning it could block nutrients and oxygen, potentially causing severe pain, vaginal extrusions, urinary tract erosion and infection.
Doria’s original complaint, from which was stricken an initial claim that Mentor misled the FDA when it sought approval for the device, states that she experienced significant mental and physical pain after a surgeon implanted her with the device Feb. 4, 2005. The device caused “erosion of her internal bodily tissue, including her vaginal wall … and painful infections,” according to the complaint, and eventually had to be surgically removed.