Patricia Perryman v. Mentor Worldwide LLC

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-16645
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D.C. Docket Nos. 4:08-md-02004-CDL; 4:13-cv-00400-CDL
In re: Mentor Corp. Obtape Transobturator Sling Products Liability Litigation.
__________________________________________________________________
PATRICIA PERRYMAN,
Plaintiff - Appellant,
versus
MENTOR WORLDWIDE LLC,
Defendant - Appellee.
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Appeal from the United States District Court
for the Middle District of Georgia
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(August 28, 2018)
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Before TJOFLAT and JULIE CARNES, Circuit Judges, and KAPLAN, * District
Judge.
JULIE CARNES, Circuit Judge:
To treat the stress urinary incontinence of plaintiff Patricia Perryman
(“Plaintiff”), her doctor surgically implanted one of Mentor Worldwide LLC’s
ObTape vaginal mesh products. Post-surgery, Plaintiff experienced a number of
symptoms, including pain, tenderness, and infections, all of which were known
side effects of mesh implants. Notwithstanding repeated visits to her doctor, as
well as excisions of mesh that had begun protruding, Plaintiff’s symptoms
persisted. As a result, she eventually had the ObTape replaced with a different
product, and her symptoms largely went away.
Seven years later, after learning from a television commercial that her post-
operative symptoms may have been caused by defects in the ObTape, Plaintiff
filed this products liability suit against Mentor in federal court. Mentor filed a
motion for summary judgment arguing that Plaintiff’s lawsuit was time-barred
because her claim accrued by the time her ObTape implant was removed, yet
Plaintiff did not file suit until seven years later—well outside the four-year statute
of limitations period provided for by applicable Florida law. The district court
*
Honorable Lewis A. Kaplan, Senior United States District Judge for the Southern District of
New York, sitting by designation.
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agreed, holding that, because Plaintiff was aware that her symptoms were related
to the implantation of the ObTape mesh by the time it was removed, her claim
accrued at that time and her subsequent lawsuit was several years too late.
Since the district court’s ruling, however, our court has addressed this very
same statute of limitations question under Florida law. See Eghnayem v. Boston
Sci. Corp., 873 F.3d 1304 (11th Cir. 2017). We must apply the standard used in
Eghnayem for review of this particular question and, upon doing so, we conclude
that a question of fact exists as to Mentor’s defense and therefore reverse the
district court’s grant of summary judgment to Mentor.
I. BACKGROUND
A. Factual Background
In May 2005, Plaintiff’s doctor surgically implanted a Mentor ObTape
vaginal mesh “sling” to treat Plaintiff’s stress urinary incontinence. Before the
surgery, Plaintiff’s doctor explained that the surgery had inherent risks, including
bleeding, infection, urinary retention, injury to tissue, and pelvic pain. Likewise,
mesh products themselves pose inherent risks. Plaintiff was informed that even if
the mesh was properly implanted and even if there was nothing wrong with it, her
body could nonetheless reject the product, and the mesh could protrude through the
vaginal wall or cause infection. Indeed, Mentor’s Product Insert Data Sheet
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(essentially an informational pamphlet for doctors) indicated that “[v]aginal
erosion, urethral evocation, and infection” were possible ObTape side effects,
though they were reported “very rarely.”
Plaintiff’s surgery itself was unremarkable, but its consequences had a
lasting impact. The surgery resolved her incontinence, but Plaintiff began
experiencing vaginal infections along with pain and discomfort in her pelvic
region. Over the course of roughly six months, Plaintiff repeatedly met with her
doctor and complained of urinary retention, infections and the resulting vaginal
discharge, and pain and tenderness during intercourse.
On multiple occasions, her doctor inspected her vagina, observed protruding
mesh, and excised it. Despite the excisions, Plaintiff’s symptoms persisted.
Eventually, in February 2006, Plaintiff decided to switch doctors. Her new doctors
recommended removal of the ObTape.
Accordingly, on February 17, Plaintiff’s new doctors surgically removed her
ObTape and replaced it with a different sling. The new sling was a “natural
product” made with biological material that may be more likely to integrate with
the human body than plastic synthetics like ObTape. During the surgery, one
doctor definitively concluded that Plaintiff’s ObTape had eroded through her
vaginal tissue.
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Plaintiff experienced no complications from her replacement surgery.
Moreover, the infections and discharge stopped. Plaintiff believed that this
positive outcome was the result of her body accepting the new mesh material better
than it had accepted the ObTape material. Nonetheless, some portions of
Plaintiff’s ObTape sling could not be removed. As a result, Plaintiff continues to
experience some tenderness and pain.
After her initial surgery in May 2005, Plaintiff never felt that her ObTape
implant was functioning properly. She reached this conclusion because, before
receiving the implant, she had never experienced the symptoms of discomfort,
pain, vaginal discharge, and infections that occurred after the surgery. When
Plaintiff began experiencing these symptoms post-surgery, she “didn’t know what
caused” them and thought she “was just having an allergy to” the ObTape implant
or her body was “rejecting . . . it or something.” As to why her ObTape implant
was continually protruding, she thought this was because either her “body just
wasn’t accept[ing] it or maybe . . . [she] had an infection that was keeping things
not healing right.” Altogether, Plaintiff “thought the problems were related to
[her] personally or perhaps caused by some other factor besides the mesh.”
Plaintiff never suspected that ObTape was defective or that a specific defect in her
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ObTape implant had caused her injuries until she saw a commercial in 2013 that
reported the existence of vaginal sling defects.
B. Procedural History
Alerted by television commercials to the fact that her symptoms may have
been caused by defects in the ObTape, on September 4, 2013, Plaintiff filed a
lawsuit in federal court as part of a consolidated multidistrict litigation action
against Mentor over ObTape’s alleged defects. 1 See In re: Mentor Corp. ObTape
Transobturator Sling Prods. Liab. Litig., 588 F. Supp. 2d 1374 (J.P.M.L. 2008).
Plaintiff alleged claims based on products liability, including negligence,
fraudulent and negligent misrepresentation, breach of express and implied
warranties, and fraudulent concealment.
After discovery, Mentor moved for summary judgment on the ground that
Plaintiff’s 2013 lawsuit was barred by Florida’s four-year products liability statute
of limitations because her claim accrued no later than February 2006, when her
ObTape implant was removed. The district court granted summary judgment to
Mentor, concluding that Plaintiff had become aware that her ObTape implant was
related to her injuries no later than February 2006. Further, because she failed to
1
Plaintiff is a resident of Florida and the surgery implanting the ObTape sling in 2005 was
performed in Florida.
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exercise due diligence, she could not toll the statute of limitations period based on
a claim of fraudulent concealment. Plaintiff filed a timely appeal under 28 U.S.C.
§ 1291.
II. STANDARD OF REVIEW
We review the grant of summary judgment and the application of a statute of
limitations de novo. F.E.B. Corp. v. United States, 818 F.3d 681, 685 (11th Cir.
2016). In doing so, we view the evidence in the light most favorable to the
nonmoving party and draw all inferences in that party’s favor. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). To grant summary judgment, the
moving party must show “that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
An issue of fact is “‘genuine’ only if a reasonable jury, considering the evidence
presented, could find for the nonmoving party.” Atheists of Fla., Inc. v. City of
Lakeland, 713 F.3d 577, 589 (11th Cir. 2013).
III. DISCUSSION
This is a diversity action, meaning that the substantive law governing the
case is provided by state law. The parties agree that the Florida statute of
limitations is the applicable statute here and that Florida law controls the question
whether this statute of limitations bars Plaintiff’s claim. See Cambridge Mut. Fire
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Ins. Co. v. City of Claxton, 720 F.2d 1230, 1232 (11th Cir. 1983) (“[S]tate statutes
of limitations are substantive laws and must be followed by federal courts in
diversity actions.”).
In resolving a very similar dispute, we have recently been called on to apply
Florida law to the very question before us today. In Eghnayem v. Boston Scientific
Corporation, 873 F.3d 1304 (11th Cir. 2017), the plaintiff, Eghnayem, had filed
suit under Florida law for injuries she suffered after being implanted with a vaginal
mesh device. A jury concluded that the statute of limitations did not apply because
the plaintiff was not on notice of her claim more than four years before she filed
the lawsuit. On appeal, the defendant sought reversal, arguing that, as a matter of
law, the plaintiff had been on notice of a potential claim well prior to that date and
had therefore filed beyond the limitations period. Id. at 1311–13.
We disagreed with the defendant. First, we observed that, under Florida
law, the statute of limitations does not begin to run until “the date that the facts
giving rise to the cause of action were discovered or should have been discovered
with the exercise of due diligence.” Id. at 1323 (citing Fla. Stat. § 95.031(2)(b)).
Examining Florida caselaw, we noted that such knowledge will be attributed to a
plaintiff when the latter has “notice, through the exercise of reasonable diligence,
of the possible invasion of [her] legal rights.” Id. (internal quotation marks
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omitted). Such notice can be inferred if there is “an injury distinct in some way
from conditions naturally to be expected from the plaintiff’s condition, and . . .
exposure to the product in question,” with some causal connection between the
product and the injury. Id. (emphasis added) (internal quotation marks omitted).
Fleshing out a bit more what the above words mean, we explained in
Eghnayem that Florida law looks to whether the injury was the type of injury that a
patient might expect to occur to a person in her condition even when there had
been no negligence on the part of the putative defendant. When “there is nothing
about an injury that would communicate to a reasonable lay person that the injury
is more likely a result of some failure of medical care than a natural occurrence
that can arise in the absence of medical negligence, the knowledge of the injury
itself does not necessarily trigger the running of the statute of limitations.” Id. at
1324 (internal quotation marks omitted). The key is whether the injuries suffered
after contact with a product were “sufficiently dramatic to provide notice” that
something might be wrong with the product; that is, was there a dramatic change in
the patient’s condition suggesting a product defect? Id. To better illustrate the
type of notice Florida law considered to be sufficiently “dramatic,” we discussed a
Florida case in which a child receiving leukemia medication developed
convulsions and resulting paralysis, noting that the Florida Supreme Court had
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found the development of these conditions to be so dramatic as to reasonably alert
the parents that something could be amiss with the medication. Id. at 1323. That
being so, the limitations period began with the onset of those symptoms. Id. We
contrasted the above factual scenario with a Florida case in which a child’s
difficulty breathing following an invasive medical procedure was not deemed to be
“so obviously unusual” that it put the parents on notice of a potential malpractice
claim. Id. at 1323–24. Notice not being conveyed by these less dramatic
symptoms, the Florida appellate court concluded that the limitations period did not
begin at the time the above symptom appeared. Id.
The “distinct injury” requirement quoted above was key in Eghnayem.
“Because even medical treatment competently performed might cause new
unpleasant symptoms, an injury must stand out from the norm to start the statutory
clock.” Id. at 1324 (internal quotation marks omitted). In short, for a claim to
accrue, a plaintiff’s injuries must be “obviously unusual.” Id.
Applying this framework, we held that Eghnayem’s post-mesh implant
symptoms were not “sufficiently distinct . . . from what might be expected after
vaginal surgery to put her on notice of her cause of action.” Id. Post-surgery,
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Eghnayem’s only new symptom was urinary incontinence. 2 Id. We observed that
incontinence—although “a more dramatic symptom than some”—“was not so
obviously unusual as to indisputably put Eghnayem on notice about her claim.” Id.
Accordingly, we affirmed the district court’s denial of the defendant’s motion for
judgment as a matter of law and concluded that “the timeliness of Eghnayem’s
action was properly a question of fact for the jury.” Id. at 1324.
Because of its marked similarity to the facts and legal issues presented in
this case, Eghnayem dictates the same result here. See Hattaway v. McMillian, 903
F.2d 1440, 1445 n.5 (11th Cir. 1990) (“We note that as a panel we are generally
bound by prior decisions of this court unless the court sitting en banc overrules the
prior decision. . . . Of course, if subsequent decisions of . . . the Florida courts cast
doubt on our interpretation of state law, a panel would be free to reinterpret state
law in light of the new precedents.” (emphasis in original)). Plaintiff experienced
pelvic pain and discomfort, infection and vaginal discharge, and mesh protrusion.
These symptoms were acknowledged side effects of ObTape implants, mesh
implants generally, and mesh implant surgery. In other words, such symptoms
could arise from a nondefective mesh that had been implanted through surgery that
2
Unlike Perryman—who received her mesh implant to treat incontinence—the Eghnayem
plaintiff received her mesh implant to treat “pelvic organ prolapse.” Eghnayem, 873 F.3d at
1311.
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was properly performed. For example, one doctor observed that Plaintiff’s eroded
mesh was a “known complication”—“not something that . . . was an unusual fact
that needed to be reported.” Thus, Plaintiff’s symptoms were not “sufficiently
distinct . . . from what might be expected after vaginal surgery to put her on notice
of her cause of action” as a matter of law. Eghnayem, 873 F.3d at 1324. Taking
all inferences in favor of Plaintiff, whether her claim had accrued by February
2006—when her ObTape implant was removed—is therefore a question of fact for
the jury.
CONCLUSION
In conclusion, Eghnayem controls this case. Acknowledging that the district
court did not have the benefit of this decision before ruling, we must nonetheless
reverse its grant of summary judgment to Mentor. Instead, a jury will be required
to decide the underlying question of fact that will determine whether Plaintiff’s
action is barred by Florida’s statute of limitations.
REVERSED.
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