Products Liability Law Reporter

A federal district court held that the maker of a pelvic mesh sling device was not entitled to a Rule 12(b)(6) dismissal of a patient’s products liability claims.

Here, Ruby Eli underwent surgery to treat urinary incontinence. The procedure, which occurred in June 2016, involved implantation of a Coloplast Altis Single Incision Sling System, which is made of synthetic, petroleum-based mesh. After the operation, Eli began to suffer from severe pain, dyspareunia, incontinence, and infections. She underwent surgery to remove portions of the pelvic mesh device in January 2018. More than two years later, in May 2020, she sued Coloplast, alleging violations of the Indiana Product Liability Act (IPLA). Specifically, the plaintiff alleged defective manufacture and design, failure to warn, and breach of express warranty, among other claims.

The defendant moved to dismiss, arguing that the plaintiff’s claims were barred on limitations grounds. The defense asserted that by the time Eli had undergone removal of her surgical mesh device, she should have discovered the basis for her lawsuit, which was filed more than two years after the removal surgery.

Denying the motion, the district court first noted that as long as a complaint offers a conceivable set of facts that would defeat a limitations defense, courts should determine timeliness issues on a motion for summary judgment or at trial. The court said that under the IPLA, a products liability action must be commenced within two years after a cause of action accrues and within ten years after delivery of the product to the consumer. Citing case law, the court added that the discovery rule applies to the determination of when tort claims accrue. Applying the rule in this case, the court said that the limitations statute here began to run when the plaintiff knew or should have discovered that she had suffered an injury and that the injury resulted from the defendant’s pelvic mesh device.

The court found that a plaintiff’s mere suspicion or speculation that a product led to injury is insufficient to trigger the two-year limitations statute. Here, the court said, it is unclear from the plaintiff’s complaint when she knew or should have known that she had suffered an injury from the defendant’s pelvic mesh device. Until discovery is undertaken, it is not known what symptoms the plaintiff had been experiencing and when, what her physicians had told her regarding complications from the pelvic mesh, and what the doctors found during the removal procedure, including whether the mesh had eroded, the court said.

Thus, the court concluded that dismissal was not appropriate at the motion-to-dismiss stage, and a challenge to the timeliness of the plaintiff’s claims is better suited for summary judgment or trial.

Citation: Eli v. Coloplast Corp., 2021 WL 65451 (N.D. Ind. Jan. 7, 2021).

Plaintiff counsel: Rebecca L. Fredona, Chicago; and William N. Riley, Fishers, Ind.