Products Liability Law Reporter

The Seventh Circuit Court of Appeals held that in a pelvic mesh products liability case where a fact issue existed on when a plaintiff should have known the cause of her injuries, a district court erred in granting summary judgment for the defense.

In 2007, Patricia Stark underwent surgical implantation of a mesh TVT-Obturator (TVT-O) sling device manufactured by Ethicon, Inc. Before the surgery, her treating surgeon discussed the potential risks of the procedure but did not discuss the risk of mesh from the sling eroding into the urethra. Stark continued suffering from pain and urinary incontinence after her surgery, and her surgeon explained that her Ehlers-Danlos syndrome (EDS) might be contributing to her post-implantation complications and failure to heal properly.

The following year, Stark consulted another physician, who recommended implantation of an Ethicon mesh TVT retropubic sling. During this procedure, the physician discovered that eroded mesh from the TVT-O sling had become embedded in Stark’s urethra. Although the physician repaired the urethra, she was unable to remove all of the eroded mesh. She later told Stark that her EDS might make her more prone to experience mesh erosion.

Over the next five years, Stark’s condition worsened. In 2015, physician Sandra Valaitis attempted unsuccessfully to surgically remove the remainder of the TVT-O sling. In early 2018, an attorney friend of Stark suggested that she speak with a colleague who specialized in pelvic mesh litigation. That September, Stark sued Johnson & Johnson and Ethicon, Inc., alleging that Ethicon’s TVT-O sling was defective and led to her injuries. The defendants moved for summary judgment on limitations grounds. The district court granted the motion and held that under the two-year Illinois limitations period applicable here, the plaintiff was required to file her claims no later than November 2017.

Reversing, the Seventh Circuit noted that under 735 Ill. Comp. Stat. 5/13-202, the limitations period begins to run when facts exist that would authorize the bringing of a cause of action. Citing case law, the court added that under Illinois’s discovery rule, this limitations period does not begin to run until an injured party knows or reasonably should have known of both the injury and the fact that it was wrongfully caused by another person, not natural causes.

The court found that there was a genuine issue of material fact regarding when the plaintiff reasonably should have known that her mesh-related injuries were wrongfully caused. Based on Stark’s conversations with her treating physicians and the fact that the FDA had approved the use of mesh implants despite their less than 100% effectiveness, the court said, Stark might reasonably believe that her mesh-related injuries had resulted from her EDS and not a product defect. Thus, a jury could determine that the plaintiff had actually discovered her injuries had been wrongfully caused only after she first discussed the issue of pelvic mesh litigation with her attorney friend, the court said. It added that before that conversation, the plaintiff could have reasonably believed that her complications resulted from her body’s natural reaction to the mesh.

The court also said that a jury could conclude that the plaintiff was unreasonable in believing her complications were the result of a natural reaction to pelvic mesh. Such reasonable doubt mandates against summary judgment here, the court concluded.

Citation: Stark v. Johnson & Johnson, 10 F.4th 823 (7th Cir. 2021).

Plaintiff counsel: Karen Enright and Thomas Plouff, both of Chicago.

Comment: In Cutter v. Ethicon, Inc., 2021 WL 3754245 (6th Cir. Aug. 2021), Jenesta (Sue) Cutter underwent surgery in 2006 to implant a Prolift mesh device for treatment of pelvic prolapse. Cutter’s symptoms returned, prompting her to seek treatment from various doctors. By 2012, Cutter concluded that her problems resulted from a product defect. She and her husband sued Ethicon, Inc., Johnson & Johnson, and others, alleging products liability, negligence, and loss of consortium. The trial court granted summary judgment for the defense, holding, in part, that the plaintiffs’ claims were barred by Kentucky’s limitations statute. Reversing in part, the court found that under Kentucky law, the limitations period for a cause of action involving a latent injury does not begin to run until a person knows or should know that he or she has suffered a wrong. Here, the court reasoned, Cutter testified that she believed her body had rejected the Prolift, and various medical professionals failed to attribute her symptoms to the Prolift until she discussed the issue with her doctor in 2011. Consequently, the question of when Cutter should have known she suffered a wrong is one for the jury. Charles C. Adams Jr., Lexington, Ky., represented the plaintiffs.