AUSTIN – The Texas Supreme Court on Oct. 6 agreed to review a question from the 11th Circuit in a case that asks when the statute of limitations starts to run on a lawsuit regarding an allegedly defective pelvic mesh insert.
Ann Marie Bergin v. Mentor Worldwide LLC is a case involving a surgical mesh implant. The question before the court is whether, under the rules of discovery in Texas, the statute of limitations starts running when someone knows they have been injured by a product, or does it only start when the injury has occurred and plaintiff knows that the manufacturer acted wrongfully or negligently.
The background of the case, as reported in the question issued by the 11th Circuit: “Mentor is the developer of a suburethral mesh sling product called ObTape Transobturator Tape. In September 2005, Ms. Bergin was implanted with ObTape by her doctor - Keith Grisham - to relieve her urinary incontinence and other medical issues. A few months later, Ms. Bergin began to experience complications (pain, odor, and vaginal discharge, among other things) with the mesh sling.”
In March of 2006, Grisham told Bergin there was an issue with the mesh sling. By September 2006, she knew there was an issue but the doctor didn’t tell her the ObTape was possibly defective, the 11th Circuit stated. She thought her body was rejecting the mesh sling. She continued to have problems.
According to the 11th Circuit document, “Seven years later, on May 14, 2013, Ms. Bergin filed her complaint against Mentor directly in the district court for the Middle District of Georgia, attempting to join other related claims consolidated in multidistrict litigation proceedings. As the case progressed, Mentor filed a motion for summary judgment, arguing that Ms. Bergin’s claims were time-barred under Texas law, which subjects claims to a two-year statute of limitations.”
Mentor’s position is that as soon as Bergin became aware there was an issue, the statute started running.
“Ms. Bergin, however, insisted that her claims did not accrue until 2013, when she saw a television advertisement alleging that ObTape was defective and was thereby reasonably alerted for the first time to the possibility that the manufacturer may have been negligent,” according to the 11th Circuit.
Bergin is a Texas resident and all her issues occurred in Texas.
The 11th Circuit said the statute starts running when a plaintiff is “reasonably put on notice of a causal connection between the product and the injury.” It granted summary judgment to Mentor Worldwide LLC.
Bergin appealed, saying the application of Texas law by the district court was in error.
The 11th Circuit propounded this question to the Texas Supreme Court: “In a product liability case, does Texas’ discovery rule require a plaintiff to have some knowledge of possible wrongdoing on the part of the manufacturer — i.e., a causal connection between the injury and the manufacturer’s conduct — before the plaintiff’s claims can accrue?”
On Oct. 6, the Texas Supreme Court agreed to review the certified question. Oral argument on the case in the Texas Supreme Court has not yet been scheduled.