E-Alert Case Updates
Fourth Circuit Concludes Utah Woman’s Transvaginal Mesh Suit Barred by Statute of Limitations
Brenda L. Robinson v. Boston Scientific Corporation
In Robinson v. Boston Scientific Corporation, No. 15-1441, the U.S. Court of Appeals for the Fourth Circuit concluded that Plaintiffs-Appellants Brenda and Rex Robinson’s claims were barred by Utah’s two (2)-year statute of limitations. The Fourth Circuit accordingly affirmed the grant of summary judgment in the Multi-District litigation pending in the U.S. District Court for the Southern District of West Virginia.
Brenda Robinson, a Utah resident, sought treatment from Clayton Wilde, M.D., an OB/GYN, for urinary stress incontinence and urinary tract infections. Dr. Wilde recommended implantation of a transvaginal surgical mesh implant to alleviate Mrs. Robinson’s symptoms. Dr. Wilde implanted Boston Scientific’s Obtryx sling. After the surgery, Dr. Wilde instructed Mrs. Robinson to avoid placing any pressure on the implant for at least the first month, as this was likely to promote erosion of the mesh.
Mrs. Robinson returned to Dr. Wilde in January 2007 complaining of continued urinary problems and pain. On April 25, 2007, Dr. Wilde advised Mrs. Robinson that the mesh was eroded – a problem that Dr. Wilde attributed to Mrs. Robinson’s failure to heed his instruction to avoid placing pressure on the implant. In May 2007, Dr. Wilde conducted a revision surgery to remove some eroded portions of the mesh. Following the revision surgery, Mrs. Robinson continued to seek treatment for symptoms, including bleeding, urinary tract infections, and incontinence.
In February 2012, almost five (5) years after her revision surgery, Mrs. Robinson saw a television advertisement about complications from transvaginal surgical mesh. In response, Mrs. Robinson sought a second medical opinion about her implant. As a result of that second opinion, she had the entire mesh extracted. Shortly after the extraction surgery, Mrs. Robinson filed suit for actual and punitive damages against Boston Scientific in the U.S. District Court for the District of Utah for negligence, strict liability design defect, manufacturing defect, failure to warn, and breach of express and implied warranties under the Utah Product Liability Act (UPLA). Her husband, Rex Robinson, brought a derivative action for loss of consortium. The case was then transferred and consolidated with the Multi-District Litigation in the Southern District of West Virginia.
Following discovery, Boston Scientific moved for summary judgment, arguing that all of Robinson’s claims were barred by Utah’s two (2)-year statute of limitations for defective products. The district court granted the motion, concluding that the limitations period began to run on April 25, 2007, when Dr. Wilde informed Mrs. Robinson that there were problems with the mesh.
Under Utah law all that is required to trigger the statute of limitations is “sufficient information to put Plaintiffs on notice to make further inquiry if they harbor doubts or questions.” Macris v. Sculptured Software, Inc., 24 P.3d 984, 990 (Utah 2001). In product defect cases, the limitations period begins when a plaintiff knows or should know: (1) that she has been injured; (2) the identity of the maker of the allegedly defective product; and (3) that the product had a possible causal relation to her injury.
Mrs. Robinson argued that she had raised a genuine dispute of material fact as to whether she should have known, on April 25, 2007, that the mesh was the possible cause of her harm. For purposes of the appeal, the Court accepted Mrs. Robinson’s argument that “possible causal relationship” refers to the cause-in-fact.
The Fourth Circuit ultimately concluded that Mrs. Robinson’s claims were untimely applying Utah substantive law. The Fourth Circuit accepted Mrs. Robinson’s argument that Dr. Wilde’s comments to her on April 25, 2007 – that the mesh erosion was linked to Mrs. Robinson’s own actions, rather than a product defect – might not have led Mrs. Robinson to believe that the mesh was the cause-in-fact of her harm. The Fourth Circuit noted, however, that even after the revision surgery in May 2007, Mrs. Robinson continued to experience the same symptoms. At that point, the Fourth Circuit determined that Mrs. Robinson was on inquiry notice of a possible causal relationship between the mesh and her harm and was required to perform due diligence to determine if the mesh was the actual cause. It was at this point, rather than on April 25, 2007 (as the district court had determined), that the statute of limitations was triggered.
Accordingly, the Fourth Circuit held that Mrs. Robinson’s claims, and her husband’s derivative claims, were barred by Utah’s two (2)-year statute of limitations.
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