(Reuters) - On Wednesday, the 11th U.S. Circuit Court of Appeals certified an intriguing – and troublesome – question to the Texas Supreme Court: Does the state’s two-year statute of limitations for personal injury claims begin to run when plaintiffs are put on notice of a link between their injury and a particular product or when plaintiffs learn the product may be defective? The answer, as the 11th Circuit pointed out, will have important consequences in product liability litigation against drug and medical device makers. (The certification order was first reported by Howard Bashman at How Appealing.)
The specifics of the case at the 11th Circuit show why. After Texas resident Ann Bergin was implanted with pelvic mesh manufactured by Mentor Worldwide in 2005, she experienced pain and bleeding. Bergin’s doctors performed two surgeries in 2006, removing pieces of mesh that had become infected. Bergin’s lead physician later said he probably told Bergin that her symptoms were related to the Mentor sling he had implanted. Bergin, according to the 11th Circuit, testified that she believed her body had rejected the implant and the surgeries were to resolve her particular complications.
In 2008, the Judicial Panel on Multidistrict Litigation consolidated pelvic mesh litigation against Mentor before U.S. District Judge Clay Land of Columbus, Georgia. Bergin, however, did not sue Mentor until 2013, after she saw a television advertisement warning that pelvic mesh may cause injuries.
Mentor’s lawyers at Tucker Ellis moved for summary judgment, arguing the clock began to run on Bergin’s claims once she had surgery to remove some pieces of mesh. Bergin’s lawyers at Beasley Allen Crow Methvin Portis & Miles countered that Bergin’s doctors never told her the Mentor mesh was itself defective or that Mentor may have been negligent. She only realized she might have a claim against Mentor in 2013 when she saw the television ad.
Judge Land sided with Mentor, holding that under the Texas “discovery rule,” Bergin was on notice once she had surgery to treat symptoms linked to the Mentor mesh. But as the 11th Circuit explained in its certification order on Tuesday, there’s considerable ambiguity in that discovery rule.
In fact, the appellate panel said, a different federal judge considering parallel facts in consolidated litigation against other manufacturers reached precisely the opposite conclusion as Judge Land. U.S. District Judge Joseph Goodwin of Charleston, West Virginia, who is presiding over tens of thousands of cases in multidistrict mesh litigation against Johnson & Johnson’s Ethicon, C.R. Bard, Boston Scientific and American Medical Systems has held that the statute of limitations for Texas claims begins to run when plaintiffs discover defendants’ allegedly wrongful conduct and its connection to their injury.
The 5th Circuit, which oversees Texas, is similarly inconsistent, according to the 11th Circuit panel in the Bergin case, Judges Adalberto Jordan, Julie Carnes and U.S. District Judge Harvey Schlesinger of Jacksonville, sitting by designation. (The 11th Circuit is hearing the Bergin case, even though it involves Texas law, because the Mentor MDL is being litigated in Georgia.) In one Dalkon Shield case from 1984, the 11th Circuit said, the 5th Circuit ruled that the statute of limitations began to run under Texas law when the plaintiff learned she had suffered an injury related to the device.
But in two other Dalkon Shield opinions issued in 1984, the 5th Circuit said that under the Texas discovery rule, the clock does not start ticking until plaintiffs learned their injuries were allegedly connected to the manufacturer’s negligence.
The 11th Circuit said the Texas Supreme Court’s precedent on the question isn’t definitive either. In 1999’s KPMG Peat Marwick v. Harrison County Housing Finance Corp, the state Supreme Court said the statute begins to run “when the plaintiffs knew or should have known of the wrongfully caused injury.” That language seems to back Mentor’s view of the Texas discovery rule, but the 11th Circuit said it can alternatively be read “to imply that some knowledge of wrongful conduct is required before a claim can accrue; that is, while awareness of a specific design defect in a defendant’s product is not required for accrual, some generalized awareness of the defendant’s wrongdoing is.” That interpretation is closer to what Bergin advocates.
The Texas Supreme Court has discretion to accept or deny certification from appellate courts.
I emailed the lawyers who argued this case before the 11th Circuit in May, Allison Hunnicutt of Beasley Allen and John Lewis of Tucker Ellis, but didn’t hear back.