Hobbsr: Vaginal Sling Cases Revived

Just six short months ago, U.S. District Judge Clay Land blasted plaintiffs' attorneys in vaginal mesh lawsuits for, as he put it, filing cases "that probably should never have been brought in the first place." Land specifically called out lawyers piggybacking on litigation against Johnson & Johnson's subsidiary Mentor Corporation, makers of ObTape, and filing claims late: "Similarly, if you did not file the action until eight years after your client's doctor excised the Obtape and informed your client that it was causing her problems, you may face a serious challenge showing cause as to why sanctions should not be imposed."

Judge Land will probably not be too pleased with a recent 11th Circuit Court of Appeals decision, which just revived injury claims by 12 Minnesota women against Mentor that a lower court had thrown out for being filed past the statute of limitations.

Time to File Flies

All injury lawsuits have some time limit before which they must be filed. These statutes of limitations laws can vary by state and depending on the type of claim. Under Minnesota's statute of limitations, negligence lawsuits must be brought within four years and claims based on strict liability (like for defective products) must be filed within six years. The biggest issue with the statute of limitations is when the clock starts ticking.

As the 11th Circuit pointed out in this case, courts have found two elements that must be satisfied before the statute of limitations clock starts in cases involving injuries caused by a defective product:

A "cognizable physical manifestation of the disease or injury," and
"[E]vidence of a causal connection between the injury or disease and the defendant's product, act, or omission."

Making a Connection

The 11th Circuit found that while the women knew there were problems with the ObTape and it had to be removed, they might not have made the causal connections between their injuries and the faulty vaginal sling. For instance, one woman said her doctor warned her that her diabetes may cause complications with the ObTape. So when the implant came apart through her vaginal wall and she suffered from infections, she claims she attributed the problems to her diabetes. It wasn't until much later she learned the implant could have been defective and decided to file a lawsuit.

While Mentor claims the statute of limitations should start accruing when the implant was removed, plaintiffs say it shouldn't be until they knew specifically that the implant was defective. The lower court sided with Mentor and dismissed the claims, but the 11th Circuit ruled the question was one of fact, and therefore would need to be resolved by a jury.

Judge Land might not be too pleased, especially if the cases fall into his jurisdiction. But for the women injured by defective ObTape implants, the ruling is welcome news.

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