Patricia Stark v. Johnson & Johnson ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1837
PATRICIA A. STARK,
Plaintiff-Appellant,
v.
JOHNSON & JOHNSON and ETHICON, INC.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:18-cv-06609 — Mary M. Rowland, Judge.
____________________
ARGUED NOVEMBER 30, 2020 — DECIDED AUGUST 24, 2021
____________________
Before EASTERBROOK, WOOD, and HAMILTON, Circuit
Judges.
HAMILTON, Circuit Judge. This appeal turns on the Illinois
discovery rule for applying the statute of limitations to prod-
uct liability claims. Plaintiff Patricia Stark had surgery in 2007
to implant a pelvic mesh device. The surgery was not success-
ful, and she had follow-up surgeries that also were not suc-
cessful. In 2018, she learned for the first time that her prob-
lems with the pelvic mesh device might have resulted from a
2 No. 20-1837
defect in the product itself. She consulted a lawyer and later
that year filed this suit against the manufacturer. The district
court concluded that Ms. Stark should have realized much
earlier that the product might have been defective. The court
granted summary judgment based on the two-year statute of
limitations. We reverse.
The statute of limitations began to run only when Ms.
Stark should have realized that her mesh-related
complications might have been wrongfully caused by another
person. As a general rule, the failure of a medical procedure
or product to cure a patient does not necessarily signal that
anyone acted wrongfully, particularly when the patient
experiences known complications that do not necessarily
result from tortious actions. In addition here, plaintiff’s
medical history included Ehlers-Danlos syndrome, which
two of her doctors told her could explain her continued
problems. The combination of that general principle and
plaintiff’s specific circumstances could allow a reasonable
jury to decide that this suit was timely.
I. Factual and Procedural Background
A. Facts for Purposes of Summary Judgment
Because plaintiff Stark appeals from a grant of summary
judgment, we must view the evidence in the light reasonably
most favorable to her and give her the benefit of conflicts in
the evidence. Greengrass v. Int’l Monetary Sys. Ltd., 776 F.3d
481, 485 (7th Cir. 2015). We do not vouch for the objective
truth of every fact that we must assume to be true for pur-
poses of the appeal. KDC Foods, Inc. v. Gray, Plant, Mooty,
Mooty & Bennett, P.A., 763 F.3d 743, 746 (7th Cir. 2014).
No. 20-1837 3
1. Plaintiff’s Relevant Medical History
In 1999, Ms. Stark began seeing Andrew Roth, M.D., as her
primary care physician and obstetrician-gynecologist. During
a December 2006 appointment, Dr. Roth diagnosed Ms. Stark
with stress urinary incontinence, which is the unintentional
loss of urine as a result of an increase in intra-abdominal
pressure, such as that caused by coughing or sneezing. Dr.
Roth provided Ms. Stark with information about a possible
treatment for her incontinence, the surgical implantation of a
mesh TVT-Obturator (“TVT-O”) sling device manufactured
by defendant Ethicon, Inc., a subsidiary of defendant Johnson
& Johnson. Dr. Roth testified that, as of his deposition in 2019,
he had implanted approximately 400 TVT-O slings.
On February 5, 2007, Ms. Stark returned to Dr. Roth for a
consultation about the TVT-O sling. Dr. Roth also offered Ms.
Stark a non-surgical treatment option, but she opted for sur-
gery because she wanted a more permanent solution with a
higher likelihood of success.
Dr. Roth described the surgery to Ms. Stark in the follow-
ing terms: “We would make a small incision in the vagina. I
would thread a tape [the TVT-O sling] underneath her blad-
der. It would wrap around the pubic bone and come out the
inner thigh on both sides.” Dr. Roth testified that they dis-
cussed potential risks associated with the procedure, includ-
ing “death, injury to bowel or bladder, possible nephrostomy,
colostomy, exploratory laparotomy, hysterectomy, blood re-
placement, infection and prolonged catheterization.” They
did not specifically discuss the risk of mesh from the sling
eroding into her urethra. Dr. Roth believed that the potential
benefits of the TVT-O sling outweighed the risks in Ms.
Stark’s case.
4 No. 20-1837
Ten days later, on February 15, Dr. Roth performed
surgery to implant the TVT-O sling. After the surgery, Ms.
Stark had a general feeling that it had not worked. She
continued to experience urinary incontinence, leakage, and
subsequent odor.1 After the surgery, Dr. Roth explained to
Ms. Stark that her Ehlers-Danlos syndrome (“EDS”) might be
contributing to her poor wound healing and post-
implantation complications. EDS refers to a group of
inherited disorders that affect the body’s connective tissues.
Ehlers-Danlos syndrome, Mayo Clinic,
https://www.mayoclinic.org/diseases-conditions/ehlers-
danlos-syndrome/symptoms-causes/syc-20362125 (last
visited Aug. 23, 2021). People with EDS generally experience
symptoms such as hyperflexible joints and extremely
stretchy, fragile skin. Id. Skin fragility can lead to post-
surgical issues, including increased bleeding and poor wound
healing.
Dr. Roth did not tell Ms. Stark that mesh from the sling
might be the cause of her pain—that the mesh itself might be
defective. For her part, Ms. Stark believed then that her EDS
was to blame.
In early 2008, Ms. Stark sought a second opinion to ad-
dress her continued incontinence. On March 5, 2008, Denise
Elser, M.D., a urogynecologist, determined that she was still
experiencing tenderness in her pelvic floor muscles, stress in-
continence, and cystocele. Cystocele, sometimes referred to as
a dropped or fallen bladder, occurs when the bladder drops
into the vagina. Cystocele (Fallen Bladder), Cleveland Clinic,
1Dr. Roth testified that urge incontinence can also be a complication
of TVT-O sling implantation.
No. 20-1837 5
https://my.clevelandclinic.org/health/diseases/15468-cysto-
cele-fallen-bladder (last visited Aug. 23, 2021). Dr. Elser also
found that Ms. Stark’s TVT-O sling had shifted.
Dr. Elser recommended, and Ms. Stark agreed to, implan-
tation of a mesh TVT retropubic sling, also manufactured by
Ethicon, to treat her continued incontinence. Both the TVT-O
and TVT retropubic slings are made of synthetic mesh.
Midurethral sling surgery for stress incontinence, Harvard
Women’s Health Watch (Sep. 2010), https://www.health.har-
vard.edu/newsletter_article/midurethral-sling-surgery-for-
stress-incontinence (last visited Aug. 23, 2021). The retropubic
method positions the mesh under the urethra in a U shape.
The ends of the sling are brought up behind the pubic bone
and out through incisions above the pubic bone. The TVT-O
approach passes the mesh under the urethra and out through
incisions in the groin.
As part of the informed consent process, Dr. Elser dis-
cussed with Ms. Stark the risks of mesh erosion and the need
for additional operations to excise any eroded mesh, as well
as recurrent stress incontinence, urge incontinence, and void-
ing difficulty. Dr. Elser scheduled the surgery for May 21,
2008.
During the surgery, Dr. Elser discovered fibers of eroded
mesh from the TVT-O sling implanted by Dr. Roth that had
become embedded in Ms. Stark’s urethral wall. After implant-
ing the new TVT retropubic sling, Dr. Elser removed the
eroded mesh and repaired the urethra. However, Dr. Elser
was unable to remove all the eroded mesh.
Following the surgery, Dr. Elser explained to Ms. Stark
that mesh from the previously implanted TVT-O sling had
6 No. 20-1837
eroded into her urethra. Dr. Elser told her that EDS might
make her more prone to mesh erosion. At no point did Dr.
Elser suggest to Ms. Stark that the mesh from the first sling
either was or could be defective.
Ms. Stark next saw Dr. Elser on February 1, 2010. She com-
plained of pelvic pain and increased incontinence. Following
an examination, Dr. Elser explained that there was no evi-
dence of stress incontinence, that Ms. Stark was maintaining
good bladder volume, and that it appeared that the new sling
had accomplished what it was supposed to do. As far as the
pelvic pain, Dr. Elser determined that Ms. Stark’s fractured
coccyx and recent knee surgery might be contributing factors.
The two also discussed the possibility of recurrent mesh ero-
sion into the urethra. They planned a cystoscopy for the fol-
lowing month. In a cystoscopy, a physician uses a tube with a
camera to examine visually the urethra and the lining of the
bladder. Cystoscopy, Mayo Clinic, https://www.mayo-
clinic.org/tests-procedures/cystoscopy/about/pac-20393694
(last visited Aug. 23, 2021).
Ms. Stark last saw Dr. Elser on March 11, 2010. She did not
see another physician about her incontinence until August
2015. During that five-and-a-half-year gap, Ms. Stark said that
her symptoms worsened: the “incontinence was worse than
before I had the first [February 2007] surgery, … everything
got worse: pain, the flow, the spasms, the leakage, the smell,
waking up at night.”
On August 19, 2015, Ms. Stark met with Sandra Valaitis,
M.D., to discuss her recurrent stress incontinence. While per-
forming a cystoscopy, Dr. Valaitis discovered mesh in Ms.
Stark’s urethra. In November 2015, Dr. Valaitis attempted to
surgically remove what remained of the TVT-O sling—by this
No. 20-1837 7
point, only eroded mesh. However, Dr. Valaitis was unable to
remove the remnants of mesh from Ms. Stark’s urethra.
While Dr. Valaitis declined to offer an opinion about the
exact cause of Ms. Stark’s continued incontinence and post-
procedure complications, she testified that she never said any-
thing to Ms. Stark that would have led her to believe that the
mesh—even the eroded mesh—was defective. Also, in her
deposition, Dr. Valaitis, like Dr. Roth and Dr. Elser before her,
identified EDS as a possible culprit. Ms. Stark “has a known
connective tissue disorder, so her connective tissue is much
weaker than the average patient, and so that could certainly
have played a role.”
2. Ms. Stark Retains an Attorney
In March 2018, Ms. Stark spoke with a friend, Karen En-
right, about her two prior TVT sling surgeries and later mesh-
related complications. Ms. Enright is a lawyer, and she sug-
gested that Ms. Stark consult with a colleague who special-
ized in pelvic mesh litigation. Ms. Stark testified that before
that conversation, she had had no reason to investigate
whether a mesh-related defect was the source of her compli-
cations. Ms. Stark had not researched pelvic mesh litigation,
discussed such litigation with her husband, or seen any re-
lated advertisements. Ms. Stark had believed that her recur-
rent mesh erosion was “Just my luck, my Ehlers-Danlos.” In
June 2018, Ms. Stark retained an attorney.
B. Procedural Background
On September 27, 2018, Ms. Stark filed this suit alleging
that Ethicon’s TVT-O sling was defective and caused her
injuries, including but not limited to, continued incontinence,
urinary urgency and frequency, erosion damage, bladder
8 No. 20-1837
spasms, back pain, severe emotional injury, and loss of
enjoyment of life. 2 Defendants moved for summary judgment
on the statute of limitations. The district court granted the
motion, holding that Ms. Stark needed to file her claims no
later than November 2017, two years after the surgery by Dr.
Valaitis. Stark v. Johnson & Johnson, 2020 WL 1914767, at *5–*6
(N.D. Ill. Apr. 20, 2020). This appeal followed. 3
II. Legal Standard: Illinois’ Discovery Rule
Summary judgment is appropriate when there is no gen-
uine issue as to any material fact and the moving party is en-
titled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Ce-
lotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). We review a
grant of summary judgment de novo, construing the record
in the light most favorable to Ms. Stark and drawing all rea-
sonable inferences in her favor. James v. Hale, 959 F.3d 307, 314
(7th Cir. 2020).
Ms. Stark’s claims under Illinois law are governed by the
two-year statute of limitations for personal injury claims in
2 Initially, Ms. Stark alleged defects in both the TVT-O sling implanted
in 2007 and the TVT retropubic sling implanted in 2010. She later dropped
all claims against the retropubic sling and several claims against the TVT-
O sling. The remaining claims against the TVT-O sling allege failure to
warn, design defect, and negligent misrepresentation.
3 Ms. Stark’s suit is not part of the 108,000-case multidistrict litigation
against seven pelvic-mesh manufacturers, including Ethicon, that was
consolidated in the Southern District of West Virginia. That MDL is now
closed; no cases remain pending and MDL cases may no longer be filed in
that district. See Multidistrict Litigation, U.S. District Court, Southern Dis-
trict of West Virginia, https://www.wvsd.uscourts.gov/nodeblock/multi-
district-litigation (last visited Aug. 23, 2021).
No. 20-1837 9
735 Ill. Comp. Stat. 5/13–202. In general, under Illinois law,
the statute of limitations clock begins to run when facts exist
that would authorize the bringing of a cause of action. MC
Baldwin Fin. Co. v. DiMaggio, Rosario & Veraja, LLC, 364 Ill.
App. 3d 6, 14, 845 N.E.2d 22, 30 (2006). Illinois also uses the
so-called discovery rule, so that the statute of limitations clock
does not start running until the injured party knows or rea-
sonably should have known both that she was injured and
that her injury was wrongfully caused by another person. See
Golla v. General Motors Corp., 167 Ill. 2d 353, 360–61, 657 N.E.2d
894, 898 (1995). The rule mitigates the harsh consequences
that could otherwise result in some cases from mechanical ap-
plication of the statute. Id.; accord, Hollander v. Brown, 457 F.3d
688, 692 (7th Cir. 2006).
For this case, the key concept is “wrongfully caused.” It
“does not mean knowledge of a specific defendant’s negligent
conduct or knowledge of the existence of a cause of action.”
Castello v. Kalis, 352 Ill. App. 3d 736, 744, 816 N.E.2d 782, 789
(2004), quoting Young v. McKiegue, 303 Ill. App. 3d 380, 388,
708 N.E.2d 493, 500 (1999). The phrase refers to when the in-
jured party learns that her injury may stem from another’s
negligence rather than natural causes. Castello, 352 Ill. App. 3d
at 744–45, 816 N.E.2d at 789. That is enough for the law to ex-
pect the injured party to investigate a potential cause of ac-
tion. Id. at 745, 816 N.E.2d at 789.
The Illinois Supreme Court has observed that the time
when the injured party knows or should have reasonably
known both of her injury and that her injury was wrongfully
caused by another person is often a disputed question of fact.
Witherell v. Weimer, 85 Ill. 2d 146, 156, 421 N.E.2d 869, 874
(1981). When there is a single, clear answer to be drawn from
10 No. 20-1837
the undisputed facts in the record, however, the court may
determine the issue as a matter of law. Id.III. Discussion
The district court concluded that the answer here was suf-
ficiently clear to grant summary judgment. The court deter-
mined that, at the latest, Ms. Stark should have known in No-
vember 2015 that her mesh-related injuries might have been
wrongfully caused. That was when Dr. Valaitis tried but failed
to remove remnants of eroded mesh from the TVT-O sling
from her urethra. According to the court, the undisputed facts
show that by November 2015, Ms. Stark knew or should have
known that her injuries were directly related to the eroded
mesh.
First, the court found that Ms. Stark was aware of her
mesh-related complications shortly after the February 2007
surgery. Immediately after the surgery, she had a general feel-
ing that it did not work. Later, she reported her “failed blad-
der lift” to Dr. Elser. Second, the court found, Ms. Stark was
aware of mesh-related complications immediately after her
May 2008 surgery as well, when Dr. Elser informed her of the
eroded mesh in her urethra. Third, in February 2010, Dr. Elser
again discussed with Ms. Stark the possibility of mesh ero-
sion. Fourth, Ms. Stark testified that between March 2010 and
August 2015, her incontinence and pain worsened. Fifth, the
court found, Ms. Stark was aware of recurrent complications
from eroded mesh in October and November 2015.
The district court determined that Ms. Stark’s EDS diag-
nosis did not raise any genuine issue of material fact. In the
court’s view, she “still had a duty to investigate whether she
had a cause of action and whether her complications were a
No. 20-1837 11
result of the surgery, a defective product, or something else
entirely.”4 The court continued, “even if Stark’s doctors con-
clusively informed her that her complications arose from her
Ehlers-Danlos Syndrome, Stark’s claim would still accrue.” In
other words, whether Ms. Stark believed that EDS was the
cause of her complications and whether her doctors told her
that EDS could be contributing to her complications had no
impact on when Ms. Stark’s claims accrued.
We respectfully disagree. The district court’s view of the
evidence is one reasonable view but not the only reasonable
view. Applying the summary judgment standard, we con-
clude there is a genuine issue of material fact concerning
when Ms. Stark reasonably should have known that her
mesh-related injuries might have been wrongfully caused.
A jury might reasonably find that Ms. Stark believed that
her mesh-related complications were caused by EDS and had
no reason to look further for an explanation. In 2007, Dr. Roth
specifically discussed with Ms. Stark the possibility of poor
wound healing in relation to her EDS. Ms. Stark testified: “It’s
poor—poor wound healing is the big thing with [Dr. Roth]
that he talked about with me.” In March 2008, Dr. Elser ex-
pressed the same concern, and she and Ms. Stark discussed
4 In support of this point, the court cited Curtis v. Mentor Worldwide
LLC, 543 F. App’x 901 (11th Cir. 2013). Curtis affirmed summary judgment
based on the Illinois statute of limitations for a product liability claim
against a manufacturer of a transvaginal mesh product, but the decision
is not precedential and is readily distinguishable on its facts. Within a year
of the surgical implantation, the plaintiff in Curtis suffered from an infec-
tion and had the mesh product removed by another surgery. She did not
have any underlying conditions—such as EDS—that might have led her
to reasonably believe that her injury had a natural cause.
12 No. 20-1837
whether EDS might make Ms. Stark more prone to mesh ero-
sion. So, although Dr. Roth and Dr. Elser may not have con-
clusively told Ms. Stark that EDS was responsible for her com-
plications, it is undisputed that they told her that EDS could
be contributing to her mesh erosion. 5
Equally important, none of Ms. Stark’s physicians sug-
gested to her that the mesh could be defective. Recall that in
2007, after Ms. Stark’s incontinence continued after the sur-
gery, Dr. Roth did not express any concern to Ms. Stark that
mesh from the TVT-O sling might be the root of her physical
distress. Dr. Elser, too, did not tell Ms. Stark that mesh from
the TVT-O sling might be defective or responsible for her
complications. In fact, Dr. Elser implanted a second mesh sling
to treat complications after the first implant. Even Dr. Valaitis
never expressed any concern to Ms. Stark that the mesh—
even the eroded mesh—might be defective.
It is possible that mesh erosion did not strike Ms. Stark or
her physicians as a potential product defect because erosion
was a known risk of pelvic mesh implantation. The FDA had
approved the use of mesh implants knowing that they are not
100 percent effective. The fact that a known complication or
5 The district court made much of the fact that when asked at her dep-
osition whether any of the doctors told her that EDS was responsible for
her mesh-related complications, Ms. Stark replied, “I don’t think so.” Con-
sidered in isolation, however, that statement paints an incomplete picture
of her conversations with Dr. Roth and Dr. Elser. After the first (TVT-O)
surgery, Dr. Roth thought that Ms. Stark’s EDS might make it difficult for
her to heal. He expressed this view to Ms. Stark in “multiple” post-surgery
telephone calls. After Ms. Stark continued to experience urinary inconti-
nence after the TVT retropubic implant, Dr. Elser told her that the new
sling was effective.
No. 20-1837 13
failure occurs could reasonably be interpreted as a sign that
such product or procedure-related failures could occur with-
out anyone acting wrongfully. See, e.g., Eghnayem v. Boston
Scientific Corp., 873 F.3d 1304, 1324 (11th Cir. 2017) (affirming
plaintiff’s verdict in mesh product liability case under Florida
law; jury “could have reasonably concluded that Eghnayem’s
injury was not so ‘distinct … from conditions naturally to be
expected from [her post-surgical] condition,’ and so the time-
liness of Eghnayem’s action was properly a question of fact
for the jury”) (quotation omitted); In re Mentor Corp. Obtape
Transobturator Sling Prods. Liability Litig., 748 F. App’x 212,
216–17 (11th Cir. 2018) (applying Eghnayem, holding that ma-
terial fact dispute precluded summary judgment on statute of
limitations defense where plaintiff experienced symptoms
that “were acknowledged side effects of ObTape implants,
mesh implants generally, and mesh implant surgery”); see
also Gutierrez v. Ethicon, Inc., — F. Supp. 3d —, 2021 WL
2431016, at *2, *9–*11 (W.D. Tex. Apr. 23, 2021) (defendants
not entitled to judgment as a matter of law on Texas statute of
limitations where doctor told plaintiff that “extruding” por-
tions of TVT-O mesh in plaintiff’s vagina were “known com-
plication”).
Ultimately, then, a jury could reasonably infer that Ms.
Stark actually discovered the potentially wrongful cause of
her injuries less than two years before filing suit, when she
first discussed pelvic mesh litigation with her friend, Ms. En-
right, in March 2018, and that she did not have sufficient rea-
son to suspect that wrongful cause any earlier.
A jury might also reasonably conclude, however, that after
two TVT implants, two mesh removal surgeries, three doc-
tors, and, through it all, unabated incontinence, pain, and
14 No. 20-1837
associated side effects, Ms. Stark’s theory that her EDS was
the source of her complications became increasingly unrea-
sonable. Ms. Stark herself testified that from her last visit with
Dr. Elser in March 2010, until seeing Dr. Valaitis in August
2015, her “incontinence was worse than before I had the first
surgery, and I felt like everything got worse: pain, the flow,
the spasms, the leakage, the smell, waking up at night.” The
different but reasonable inferences from Ms. Stark’s medical
history pose a genuine dispute of material fact as to when she
should have known that her injury might have been wrong-
fully caused.
Several cases support our conclusion that summary judg-
ment was not proper. In Aebischer v. Stryker Corp., 535 F.3d 732(7th Cir. 2008), we applied Illinois’ discovery rule to reverse a
grant of summary judgment. We found a genuine dispute of
material fact as to whether the plaintiff’s failure to suspect
wrongdoing was reasonable in light of her doctor’s advice,
following her first hip replacement surgery, that she was nat-
urally at increased risk of injury. Id. at 734. The plaintiff’s doc-
tor “advised her that she was at increased risk for wear and
loosening of her prosthetic hip because she was young, active,
and had an unusually small hip socket.” Id. The plaintiff re-
quired a second hip replacement surgery less than five years
later. Although her doctor testified that he believed such
rapid failure to be “unusual,” he could not remember when
he expressed his suspicions about the implant itself to the
plaintiff. Id. at 735. The record did not indicate whether he had
seriously considered the possibility that the prosthetic hip
was defective. The jury could therefore reasonably side with
the plaintiff and find that she was not on inquiry notice until
after her second surgery, when her doctor told her that the
No. 20-1837 15
first device had exhibited “advanced or catastrophic failure.”
Id. at 733–34.
In Hochbaum v. Casiano, 292 Ill. App. 3d 589, 686 N.E.2d 626(1997), the Illinois Appellate Court clarified how trial courts
should treat the interplay between negligent and non-
negligent causes of injuries:
Where a traumatic injury is sustained in the ab-
sence of an apparent non-negligent cause, it is
fair to place a burden on the injured party to in-
quire as to the actual cause. On the other hand,
in the case of an injury that appears to have been
caused by some non-negligent event, such as an
illness, and the actual cause is unknown, the in-
jured party has no reason to conduct such an in-
quiry and to require him or her to do so would
be patently unfair.
Id. at 595, 686 N.E.2d at 630; see also id. at 595–96, 686 N.E.2d
at 630–31 (reversing summary judgment in part; material fact
dispute existed as to whether plaintiff believed her suicide at-
tempt had been caused by depression and did not learn of
possible effects of Prozac until 18 months later).
Four years later, in Clark v. Galen Hospital Illinois, Inc., 322
Ill. App. 3d 64, 748 N.E.2d 1238 (2001), the court reaffirmed
this principle, explaining that when the injury at issue is an
“aggravation of a physical problem which may naturally de-
velop, absent negligent causes,” a plaintiff is not immediately
expected to suspect wrongful causation. Id. at 70, 748 N.E.2d
at 1243, quoting Saunders v. Klungboonkrong, 150 Ill. App. 3d
56, 60, 501 N.E.2d 882, 885 (1986). In Clark, the plaintiff filed a
medical negligence suit against hospital defendants for the
16 No. 20-1837
wrongful death of her premature infant son, who allegedly
died as a result of sepsis caused by a dislodged venous cathe-
ter. 322 Ill. App. 3d at 65–66, 748 N.E.2d at 1240. The plaintiff
argued that the trial court erred by finding that the death of
her son constituted a traumatic injury that started the statu-
tory clock. Id. at 66, 748 N.E.2d at 1240. According to the plain-
tiff, the statute of limitations began to run nineteen months
later, when she received an expert’s report that the death was
caused by the dislodged catheter. Id.The appellate court reversed, finding a factual dispute as
to when plaintiff should have known or suspected negligent
medical treatment by defendants so as to start the statutory
clock. Id. at 75, 748 N.E.2d at 1247. The court emphasized the
infant’s “extreme prematurity” at the time of his death. Id. (He
was born at 23 weeks.) The plaintiff alleged that she was told
her son died from complications associated with prematurity,
infection and low birth weight, and blood clotting and
transfusions. Id. at 74, 748 N.E.2d at 1247. The appellate court
explained that it was reasonable for plaintiff to believe that
the death was due to non-negligent causes. The court also
emphasized that it would be “manifestly unrealistic and
unfair to bar a negligently injured party’s cause of action
before he has had an opportunity to discover that it exists.”
Id. at 70, 748 N.E.2d at 1243, quoting Kristina v. St. James Hosp.,
63 Ill. App. 3d 810, 813, 380 N.E.2d 816, 819 (1978).
The circumstances before us are remarkably similar. And
the reasoning of these cases under Illinois law echoes the
above-cited cases under Florida and Texas law finding that
erosion of pelvic mesh did not necessarily start the statutory
clock in Eghnayem, In re Mentor Obtape, and Gutierrez. We
therefore think the Illinois courts would not bar Ms. Stark
No. 20-1837 17
from bringing her claims because she did not have the insight
or suspicion to investigate the manufacturer of the TVT-O
sling while she reasonably believed that her continuing
problems were the result of natural causes, including, most
notably, her own EDS. Barring her claims would be both
“unrealistic and unfair.” See Clark, 322 Ill. App. 3d at 70, 748
N.E.2d at 1243.
The three cases cited by the district court as compelling
summary judgment for defendants, Witherell v. Weimer, 85 Ill.
2d 146, 421 N.E.2d 869 (1981), Hoffman v. Orthopedic Systems,
Inc., 327 Ill. App. 3d 1004, 765 N.E.2d 116 (2002), and Orso v.
Bayer Corp., 2009 WL 249235 (N.D. Ill. Feb. 2, 2009), are readily
distinguishable from this case. We begin with Orso and Hoff-
man because they are more easily distinguishable and con-
clude with a detailed discussion of the Illinois Supreme
Court’s decision in Witherell.
In Orso, the plaintiff filed suit against Bayer in January
2004, alleging that its nasal decongestant drops were the cause
of her dependency on the drops and/or her ongoing and
exacerbated (“rebound”) congestion. 2009 WL 249235, at *2.
Plaintiff testified that she was unaware that the drops
themselves could have been to blame until her husband’s
chance encounter with a man who was similarly addicted to
the drops and had filed suit against Bayer. Id. at *4. The
district court concluded that plaintiff’s suit was time-barred
because the record showed that, as early as 1991 and no later
than September 2000, plaintiff knew that she had rebound
congestion, was dependent on the drops for relief, and had
been diagnosed with a “likely addiction” to the drops. Id. at
*1, *4. In both 1991 and 2000, the court emphasized, plaintiff
had been advised to discontinue use of the drops and had
18 No. 20-1837
even been prescribed other medication as a substitute. Id. at
*1.
The facts here are quite different. Although Ms. Stark was
told that the mesh was eroding, she was never told that the
mesh was or even might be defective. Quite the opposite. Dr.
Elser implanted a second mesh sling to correct matters after
the first one appeared to be eroding.
In Hoffman, following an accident on a city-owned bus,
plaintiff was scheduled for a “fairly simple” spinal surgery in
September 1995. 327 Ill. App. 3d at 1006, 765 N.E.2d at 118–19.
When she woke after the surgery, she was in the intensive care
unit. Id., 765 N.E.2d at 119. During the surgery, she had con-
tracted hepatitis, and after the surgery she had liver failure,
kidney failure, gastrointestinal bleeding, pneumonia, a heart
arrhythmia, and septicemia. Id., 765 N.E.2d at 119. She was
told that “everything that could go wrong went wrong.” Id.Before the surgery, plaintiff had retained a law firm to handle
her claim against the city. Id. at 1007, 765 N.E.2d at 119. Four
to six months after her surgery, plaintiff asked the firm to in-
vestigate possible medical malpractice during the surgery. Id.The inquiry never materialized further than her initial re-
quest. Id. at 1010–11, 765 N.E.2d at 122.
A few years later, that plaintiff learned that the hospital’s
internal investigation of her 1995 surgery had determined that
the surgical table caused her injuries. Id. at 1007–08, 765
N.E.2d at 119–20. Plaintiff filed suit against the table manufac-
turer in May 1998. The appellate court affirmed summary
judgment for the manufacturer. The “more obvious the in-
jury,” the court reasoned, “the more easily a plaintiff should
be able to determine its cause.” Id. at 1009, 765 N.E.2d at 121.
And, in any event, the court concluded, at the point that
No. 20-1837 19
plaintiff directed her attorney to investigate possible medical
malpractice, she was indisputably on inquiry notice. Id. at
1010, 765 N.E.2d at 122.
Hoffman differs from the case before us for two reasons.
First, in Ms. Stark’s case, there was no obvious, triggering
event. In Hoffman, following her surgery, plaintiff was told by
two doctors that “everything that could go wrong went
wrong.” Id. at 1006, 765 N.E.2d at 119. That was an understate-
ment. The plaintiff went in for spinal surgery and woke up
with hepatitis and multiple organ failure. Here, we have no
similar singular event that indisputably should have put Ms.
Stark on inquiry notice. Also, Ms. Stark did not retain a lawyer
until she had a conversation with her friend about pelvic
mesh litigation. We have no direct indication that Ms. Stark
believed earlier that she had been injured by anyone’s wrong-
ful conduct.
Witherell also presented quite different facts as to the plain-
tiff’s knowledge of a possible product defect. That plaintiff
filed suit against her doctors, Dr. Weimer and Dr. Taubert,
and a pharmaceutical corporation (“Ortho”), alleging that her
leg injuries were caused by birth-control pills manufactured
by Ortho and prescribed by the doctors. 85 Ill. 2d at 148–49,
421 N.E.2d at 870–71. Dr. Weimer first prescribed the pills to
plaintiff in 1966. Soon after, plaintiff began to have pain and
spasms in her left leg, which eventually became swollen to the
point that the leg was unusable. Id. at 149, 421 N.E.2d at 871.
She finally consulted Dr. Weimer about the pain in March
1967. He advised that she had a muscle condition and would
have to learn to live with the discomfort. Dr. Taubert, on the
other hand, felt she might have a blood clot in her leg and
20 No. 20-1837
decided to hospitalize her. Nevertheless, the plaintiff contin-
ued to take the pills.
In 1972, plaintiff was hospitalized again. When she said
that she had heard from other women that birth-control pills
could cause blood clots, Dr. Weimer laughed her off. Dr.
Taubert, however, told plaintiff that she was having blood
clots. Id. at 156–57, 421 N.E.2d at 874. In 1973, plaintiff discon-
tinued use of the pills for one month but resumed use at the
behest of Dr. Weimer. Id. at 149, 421 N.E.2d at 871.
In May 1976, nearly ten years after she began taking the
birth-control pills, plaintiff was hospitalized for a third time.
Id. at 150, 421 N.E.2d at 871. Once again, Dr. Weimer told her
it was her muscle condition and denied her request to perform
a venogram to determine if she had lingering blood clots. At
that point, plaintiff decided to consult a third doctor, who ad-
mitted her to another hospital, performed a venogram, and
determined that she had thrombophlebitis and that some of
the veins in her leg were occluded by old clots. Id. at 150–51,
421 N.E.2d at 871–72. Plaintiff filed suit against Dr. Weimer,
Dr. Taubert, and Ortho in January 1978. Id. at 148, 421 N.E.2d
at 870.
While the Supreme Court of Illinois concluded that the
plaintiff could proceed against the doctors, her claims against
Ortho were time-barred. Id. at 157–58, 421 N.E.2d at 875.
Given the severe difficulties experienced by plaintiff for over
ten years, her personal knowledge that birth-control pills
could cause blood clots, and her 1967 and 1972 diagnoses with
blood clots in her legs, the court found it “inconceivable” that
a reasonable person would not have realized, at least by the
time of her second hospitalization in 1972, that she might not
have been receiving proper treatment. Id. at 156–57, 421
No. 20-1837 21
N.E.2d at 874. And, regarding Dr. Weimer’s insistence that a
muscle condition—rather than the pills—bore responsibility
for plaintiff’s leg issues, the court explained that Ortho should
not be penalized because of the doctor’s error. Id. at 157, 421
N.E.2d at 875.
Here, defendants try to make the same argument, that it is
“inconceivable” that a reasonable person in Ms. Stark’s posi-
tion would not have realized by November 2015 that she
needed to investigate possible product defects. By then she
had undergone two mesh removal procedures, and her mesh-
related symptoms—including incontinence—continued to
worsen after the first revision surgery in May 2008. Further,
defendants reason, both Dr. Elser and Dr. Valaitis discussed
with Ms. Stark the risk of mesh erosion, so she knew that ero-
sion was a possible outcome. But this reasoning does not re-
solve the case, and certainly not on summary judgment. The
fact that erosion was a known complication could reasonably
be taken to mean that erosion could occur without the prod-
uct being defective, especially when Dr. Roth and Dr. Elser
told Ms. Stark that EDS might make her more prone to mesh
erosion.
In Witherell, plaintiff continued to see the same two
doctors for ten years—despite two hospitalizations and
multiple clues that her birth-control pills might be causing
severe and debilitating issues in her leg. 85 Ill. 2d at 149–50,
421 N.E.2d at 871. In fact, Dr. Taubert had specifically
diagnosed her with blood clots in the leg. Id. at 156–57, 421
N.E.2d at 874. So, in 1976, when plaintiff finally saw a third
doctor, her thrombophlebitis diagnosis, that she had clotting
in her superficial veins, was not substantial, new information.
22 No. 20-1837
Id. at 150–51, 421 N.E.2d at 871–72. It was more information of
the kind she already had.
For Ms. Stark, the conversation with Ms. Enright was ap-
parently the first time she was alerted to even the possibility
that the mesh itself—rather than her EDS or unexplained nat-
ural causes—might be causing the complications and contin-
ued symptoms. None of Ms. Stark’s doctors ever suggested to
her that the mesh might be defective. In fact, as defendants
point out, Ms. Stark was twice warned that mesh erosion was
a known risk of the TVT-O sling, but that information can be
fairly interpreted as signaling that mesh erosion can happen
without anyone having acted wrongfully. When Ms. Stark
reasonably knew or should have known that her mesh-related
complications might have been caused wrongfully is not self-
evident. That lack of a single, clear answer is precisely why
the statute of limitations questions here cannot be resolved on
summary judgment. See Witherell, 85 Ill. 2d at 156, 421 N.E.2d
at 874. 6
6 Several statute of limitations cases from the pelvic mesh MDL are
also instructive on this point. In Sanchez v. Boston Scientific Corp., 2014 WL
202787 (S.D. W. Va. Jan. 17, 2014), the district court denied Boston Scien-
tific’s motion for summary judgment on timeliness grounds. Despite four
revision surgeries to correct issues with the mesh sling, the plaintiff’s phy-
sician continued to tell her that her body had a “propensity” to expel mesh
and that “‘for some reason [Ms. Sanchez’s] body did not like’ the mesh
products.” Id. at *2. Plaintiff’s physician further testified that she had
never attributed plaintiff’s symptoms to a defect in the mesh. Id. So, the
court reasoned, given her physician’s statements, a jury might conclude
that plaintiff reasonably believed her mesh-related injuries were caused
by her body’s natural reaction to the mesh. Id. at *8. On the other hand,
after four revision surgeries, several medical treatments, and nineteen
No. 20-1837 23
medical appointments, a jury might also conclude that plaintiff’s contin-
ued belief in the “natural reaction” theory had become unreasonable. Id.
In Long v. Ethicon, Inc., 2020 WL 5740258 (D. Or. Sep. 11, 2020), the
magistrate judge also recommended denying Ethicon’s motion for sum-
mary judgment on timeliness grounds, emphasizing the fact-intensive na-
ture of the inquiry:
Whether [plaintiff] should have been aware of the sub-
stantial possibility that the TVT product was the cause of
her ongoing injuries rather than other causes in her surgi-
cal history or health conditions, and whether [plaintiff]
was subject to a duty to inquire about facts that may trig-
ger the statute of limitations, are themselves genuine is-
sues of material fact.
Id. at *5 (citation omitted). In other words, parsing the finer points of plain-
tiff’s health and medical history was an issue for trial, not summary judg-
ment.
By contrast, in Cutter v. Ethicon, Inc., 2020 WL 109809, at *6 (E.D. Ky.
Jan. 9, 2020), the district court granted summary judgment on statute of
limitations grounds, holding that plaintiff’s claim accrued no later than
March 2011. Plaintiff received her initial mesh implant in June 2006. Id. at
*2. She continued to report pain, leakage, burning, and constipation in
follow-up appointments. In October 2008, her doctor discovered that the
right arm of the mesh device had “come loose.” The doctor informed
plaintiff of the issue and performed a revision surgery in December 2008
to remove part of the mesh. Plaintiff’s pain continued unabated, but she
failed to inform a physician until August 2010. In September 2010, a
second doctor performed a second revision surgery to remove a second
portion of the mesh that had “rolled up.”
In December 2010, plaintiff informed the second doctor that her hus-
band had felt a “sharp scrape” during intercourse. Id. In March 2011, the
second doctor recommended surgery to remove the mesh. In March 2012,
a third doctor performed a third revision surgery. In the meantime, in No-
vember 2011, Plaintiff and her husband saw an attorney advertisement
involving the initial mesh implant. Plaintiff filed suit in May 2012. The
district court reasoned that by March 2011, plaintiff had sufficient
24 No. 20-1837
We must also consider the specifics of Ms. Stark’s medical
history against the backdrop of a more general principle. Ms.
Stark—like all other patients—should not be penalized for
trusting her physicians’ advice and not suspecting too quickly
that her poor medical outcome was caused by a negligent ac-
tor.
Medical treatment of human disease can be complex and
full of uncertainty. Success is not guaranteed, and a surgery’s
“failure” or shortcomings should not necessarily be sufficient
to tell a patient that she should start investigating possible
claims against her physicians or the manufacturers of the
products they used. Although we have made this point re-
peatedly in medical malpractice cases, it applies with equal
force to product liability claims, where patients often confront
similar circumstances: faced with some illness or injury, a pa-
tient seeks counsel from a trusted physician, follows the
knowledge of “critical facts” that would start the one-year statutory clock
because: (i) she required three revision surgeries; (ii) problems persisted
even after the second revision surgery to the point that her husband felt a
“scrape” during intercourse; and (iii) as early as 2008, plaintiff knew that
the mesh was not working as it should be, even if she had not been told
affirmatively that the mesh was defective. 2020 WL 109809 at *6.
Sanchez, Long, and Cutter show that the statute of limitations in pelvic
mesh implant cases can turn on fact-intensive inquiries concerning: (i) the
plaintiff’s own, frequently complex, medical history, including past sur-
geries, treatments, and diagnoses; (ii) the product itself—how it was im-
planted, how many revision surgeries were required, whether it was fully
or partially removed; and (iii) the revolving door of physicians—one, two,
maybe even three or four treating physicians—and what they did and did
not tell plaintiff. These are just a few of the questions that may need to be
resolved to determine whether a pelvic mesh plaintiff’s case is time-
barred.
No. 20-1837 25
physician’s suggested course of treatment, and then experi-
ences an unfortunate outcome.
That unfortunate outcome, by itself, is not sufficient to
start the statute of limitations clock. See P.W. by Woodson v.
United States, 990 F.3d 515, 521 (7th Cir. 2021); id. at 527 (Ham-
ilton, J., dissenting) (a “poor medical outcome alone” is insuf-
ficient to start the statute of limitations clock); see also E.Y. ex
rel. Wallace v. United States, 758 F.3d 861, 867 (7th Cir. 2014)
(“In applying the FTCA statute of limitations to claims of
medical malpractice, we have long avoided requiring would-
be plaintiffs to engage in paranoid investigations of everyone
who has ever provided them with medical care.”) (citations
omitted); Arroyo v. United States, 656 F.3d 663, 677 (7th Cir.
2011) (Posner, J., concurring) (patients should be held to the
level of information they are actually given: “Had someone
informed the Arroyos that it was ‘highly possible’ that the in-
juries to their child had been caused by the failure to admin-
ister antibiotics to Mrs. Arroyo, the statute of limitations
would have begun to run then….”); Drazan v. United States,
762 F.2d 56, 59 (7th Cir. 1985) (rejecting rule that would have
the “ghoulish consequence” of requiring patients with poor
or imperfect outcomes to inspect hospital records immedi-
ately for signs of physician error); Nemmers v. United States,
795 F.2d 628, 631 (7th Cir. 1986) (citing Drazan: “the statute of
limitations should not be construed to compel everyone who
knows of an injury to scour his medical records just in case
the government’s physician did something wrong”). There
must be some other circumstances present that would prompt
a reasonable person—meaning, a reasonable patient, not, we
emphasize, a reasonable doctor or a reasonable lawyer—to
suspect or investigate a potential wrongful cause. In this case,
26 No. 20-1837
the evidence does not show beyond reasonable dispute that
any such “other” circumstances were present.
We have said that when “knowing a fact depends on hav-
ing technical knowledge, the incredible variance in such
knowledge across American society can make the knowledge
of the average person a perverse benchmark.” Arroyo, 656
F.3d at 675 (Posner, J., concurring). It follows, then, that a rea-
sonable doctor in Ms. Stark’s position might be held to a dif-
ferent standard. But Ms. Stark is not a doctor. So it makes little
sense to hold her to a standard of information or to charge her
with a level of technical knowledge that eluded even her doc-
tors. Dr. Roth did not tell Ms. Stark that the mesh from the
first sling might be the cause of her pain. Dr. Elser, while she
discussed the possibility of mesh erosion into Ms. Stark’s ure-
thra, did not suggest to Ms. Stark that the mesh from the first
sling might be defective. In fact, both doctors told Ms. Stark
that her EDS might make her more prone to mesh erosion. Dr.
Valaitis, too, never said anything to Ms. Stark that would lead
her to believe that even the eroded mesh was defective. And,
while it is unclear whether Dr. Valaitis told Ms. Stark that her
EDS could have contributed to her continued incontinence
and post-procedure complications, Dr. Valaitis testified that
Ms. Stark “has a known connective tissue disorder … so that
could certainly have played a role.”
Put simply, all three doctors who treated Ms. Stark during
this period failed to suggest to her that the mesh device could
be the source of her complications. 7 And all three doctors,
7In this way, again, we emphasize that Ms. Stark’s case is distinct
from Witherell, where plaintiff’s first two doctors came to two very differ-
ent conclusions. Dr. Weimer told plaintiff that a muscle condition, not her
birth-control pills, was to blame for her swollen, unusable left leg. 85 Ill.
No. 20-1837 27
whether in conversations with Ms. Stark or in testimony, ac-
tually said that her EDS could be to blame. A jury could find
that Ms. Stark was therefore objectively reasonable in contin-
uing to believe, until her conversation with Ms. Enright, that
her EDS was to blame, and in not looking for any further ex-
planation. To find otherwise, at least as a matter of law, would
produce the “harsh” result that the Illinois discovery rule was
intended to mitigate. E.g., Hollander, 457 F.3d at 692; Golla, 167
Ill. 2d at 360–61, 657 N.E.2d at 898.
Finally, while we acknowledge the district court’s point,
drawn from Illinois caselaw, that the more obvious the injury,
the more easily a plaintiff should be able to determine its
cause, we do not think that Ms. Stark’s condition was so
obviously a wrongful injury. See Hoffman, 327 Ill. App. 3d at
1009, 765 N.E.2d at 121. That is, before she spoke with Ms.
Enright, Ms. Stark could reasonably believe that her mesh-
related complications were brought on by her body’s natural
reaction to the mesh—that her pre-existing EDS was to blame,
and she need not look any further for a reasonable
explanation—particularly where, as here, her “natural
reaction” theory was substantiated in conversations with Dr.
Roth and Dr. Elser. Additionally, Ms. Stark could reasonably
2d at 149, 421 N.E.2d at 871. Dr. Taubert, on the other hand, felt that plain-
tiff might have a blood clot in her leg and decided to hospitalize her. Id.When plaintiff was hospitalized a second time, Dr. Weimer and Dr.
Taubert again came to different conclusions about the potential for birth-
control pills to cause blood clots. Id. at 156–57, 421 N.E.2d at 874.
That’s not what happened here. Ms. Stark’s three doctors shared an
identity of opinion regarding her condition that was plainly absent in
Witherell. Her doctors never opined to her that the mesh was possibly de-
fective, and, at some point, all three opined that her EDS was possibly to
blame for her continued incontinence and post-procedure complications.
28 No. 20-1837
believe that the mesh device was not defective or the source
of her complications because Dr. Elser implanted a second
mesh device to treat issues either caused or exacerbated by
the first mesh device. These theories are reasonably aligned:
Ms. Stark believed that her body rejected the first mesh
device, but believed that the second device, as Dr. Elser told
her, was working as it was supposed to.
Then again, as defendants argue, perhaps Ms. Stark was
unreasonable in holding onto this “natural reaction” theory
for so long. On the record before us, it is simply not clear. And
where there is reasonable doubt, summary judgment is not
appropriate. The choice between competing reasonable infer-
ences is for a jury.
REVERSED AND REMANDED for proceedings con-
sistent with this opinion.