Products Liability Law Daily Summary judgment for Johnson & Johnson affirmed in transvaginal mesh action
Tuesday, December 15, 2020

Summary judgment for Johnson & Johnson affirmed in transvaginal mesh action

By Joshua Frumkin, Esq.

Sixth Circuit refused to apply the discovery rule to toll the Tennessee statute of repose.

In an action arising out of an allegedly defective TVT transvaginal mesh, the U.S. Court of Appeals for the Sixth Circuit affirmed a grant of summary judgment to the manufacturer, Johnson & Johnson. The court held that the patient had failed to bring her suit within the Tennessee statute of repose. Accordingly, her action was time-barred (Clabo v. Johnson & Johnson Health Care Systems, Inc., December 14, 2020, Donald, B.).

In May 2003, a patient was implanted with a TVT transvaginal mesh device manufactured by Johnson & Johnson Health Care Systems, Inc. (Johnson & Johnson). Three years later, in 2006, she began experiencing pelvic pain and other issues. After being informed by her doctor that the TVT mesh had eroded through her vaginal canal, she elected to remove and replace the TVT mesh with a similar mesh sling implant. The patient had another surgery in 2011. She alleged that it was not until 2012 that she realized that the initial TVT mesh implant was the likely cause of her continued pain and suffering. She brought a products liability suit against Johnson & Johnson in May 2013. Johnson & Johnson filed a motion for summary judgment, arguing that the statute of repose under Tennessee law had expired before the patient had brought her suit. The patient moved to amend her complaint and filed, on her own initiative, a supplemental brief in response to Johnson & Johnson's motion. Ultimately, the district court granted summary judgment to Johnson & Johnson, struck the patient's supplemental brief, and denied her motion to amend. The patient timely appealed.

Summary judgment affirmed. The appellate panel affirmed the district court's grant of summary judgment to Johnson & Johnson. The core issue before the panel was when the patient had been "injured" under Tennessee law. The statute of repose under the Tennessee Products Liability Act (TPLA) limits bringing lawsuits to six years from "the date of injury." Because the term "injury" was not defined in the TPLA, the court sought to determine what the Tennessee Supreme Court would rule if the issue were before them. The Sixth Circuit determined that the TPLA text was unambiguous. Per state law, therefore, the court explored the plain and ordinary meaning of the word "injury." After applying Black's Law Dictionary’s definition, the court understood "date of injury" in the TPLA to refer to the point in time that the patient was first injured by the TVT mesh. The court determined that this reading aligned with the state legislature's intent behind the TPLA, namely, to limit the time for a suit to be brought to simplify the actuarial concerns of the insurance industry. Consequently, the court found that the date of the patient's injury was in 2006, more than six years before she filed suit.

Discovery rule not applicable. The court rejected the patient's attempt to use the discovery rule to toll the Tennessee statute of repose. The patient argued that the effective date of her injury was in July 2012, when a "medical doctor friend" of hers advised her of the likely relationship between the 2003 TVT mesh implant and her injuries. The discovery rule delays the accrual of a cause of action to the date that a reasonable party discovers or should have discovered their injury, even though that date may be after the actual date of injury. However, because Tennessee courts have refused to extend the discovery rule to toll the state statute of repose, the court refused to do so here. Thus, the court held that the statute of repose had expired for this patient and that her claims were time-barred. The court also held that the district court's denial of the patient's motion to amend was proper, as an amended complaint would not have assisted her in circumventing the statute of repose issue.

Strike of supplemental brief not an abuse of discretion. The appellate panel refused to overturn the district court's decision to strike the patient's supplemental brief. The decision to grant or deny a motion to strike is reviewed for abuse of discretion. A court's decision to grant or deny such a motion will be overturned only if it was unreasonable and arbitrary. Because the patient had filed her supplemental brief without the district court’s consent, the panel held that the lower court’s decision to strike was not an abuse of discretion.

The case is No. 20-5168.

Attorneys: Richard Baker (Law Office of Richard Baker) for Leslie Clabo. Susanna M. Moldoveanu (Butler Snow LLP) for Johnson & Johnson Health Care Systems, Inc. and Ethicon Endo-Surgery, Inc.

Companies: Johnson & Johnson Health Care Systems, Inc.; Ethicon Endo-Surgery, Inc.

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