ATLANTA – The U.S. Court of Appeals for the 11th Circuit is asking the Texas Supreme Court to help answer a product liability case question in a case filed by a Texas woman.

After considering Ann Marie Bergin v. Mentor Worldwide LLC, a panel of judges turned over a question Sept. 20 to the higher court to help determine if Texas’ discovery rule necessitates whether Bergin should have had some knowledge of misconduct by Mentor prior to her claims that its mesh sling ObTape Transobturator Tape caused her injury.

According to the court's certification document, the case dates back to 2005 when Bergin was implanted with ObTape and began experiencing difficulty. According to the court, Bergin was aware in 2006 the ObTape sling could have caused injury. However, Bergin waited until 2013 to file her claim, arguing she was unaware of the connection until she saw a commercial that the product was defective. Mentor countered with summary judgment, saying Bergin’s claims were time-barred under the two-year stature of limitations of Texas law and a district court agreed.

“Thus, the district court reasoned, a reasonable person would have taken some action at that point to follow up on whether her injuries were caused by a defect in the ObTape,” according to the ruling. But Bergin appealed, arguing her claim could not have accrued until she saw the commercial.

In discussion, the appeals court first considered Arthur v. King 2007 and how Texas’ discovery rule is a question of law. 

“In interpreting the Texas discovery rule, federal courts have ruled inconsistently in deciding whether a plaintiff’s claim accrues only when the plaintiff is placed on reasonable notice that the manufacturer of a product has acted negligently,” according to the court.

“Some cases seem to support Ms. Bergin’s position by continuing to employ the ‘should have known of the wrongful act’ language,” according to the court, citing Holland v. Thompson 2010 and Rodriguez v. Crowell 2009.

“To resolve this appeal, we must decide which of the above positions is correct, but that answer depends on an unresolved question of Texas law,” the court stated.

The appeals court certified the question of law based on all the factual background, sending the matter to the Supreme Court of Texas for guidance.

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