Date: 09-21-2017

Case Style:

Case Number: 16-14364

Judge: Per Curiam

Court: United States Court of Appeals for the Eleventh Circuit on appeal from the Middle District of Georgia

Plaintiff's Attorney: Andy Birchfield, Chad Cook, Beau Darley, Kendall Donald, Allison Hunnicutt, Leigh Odell

Defendant's Attorney: John Q. Lewis

Description: This appeal arises from an allegedly defective surgical mesh implant. The
question to be answered concerns whether under the Texas “discovery rule” a
claim accrues for purposes of starting the applicable statute of limitations period
when a plaintiff knows, or has reason to know, that there is a connection between
her injury and the defendant’s product or whether instead accrual (and the
corresponding start of the limitations period) occurs only when the plaintiff also
has reason to know that the manufacturer acted wrongfully or negligently in its
manufacture of the product.
The District Court concluded that the former interpretation of Texas law was
correct, and therefore granted summary judgment in favor of Mentor Worldwide
LCC, the Appellee in this case. The Appellant, Ms. Ann Bergin—a resident of
Texas—argues that accrual requires discovery of both the injury and its negligent
cause. Thus, she avers, the District Court erred in its application of Texas law.
To resolve this appeal, we must decide which of the above positions is
correct, but that answer depends on an unresolved question of Texas law. We
therefore certify this question of law, based on the factual background recited
below, to the Supreme Court of Texas and respectfully request its guidance.
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I. BACKGROUND AND PROCEDURAL HISTORY
Mentor is the developer of a suburethral mesh sling product called ObTape
Transobturator Tape.1 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 2006, Dr. Grisham informed Ms. Bergin that the mesh sling was
partially exposed. Dr. Grisham surgically removed a piece of the exposed ObTape
later that month. The complications nonetheless persisted, and Ms. Bergin opted to
undergo another surgery in September 2006. This later procedure resulted in the
removal of some granulated tissue and infected “mesh material.”
The record indicates that by September 2006, Ms. Bergin was aware that
there could be a connection between her injury and the OBTape sling. In his
deposition, Dr. Grisham stated that he “probably” discussed the possibility with
Ms. Bergin that her symptoms were related to the mesh sling exposure. Ms.
Bergin testified that, based on conversations with her doctor, she thought her body
was rejecting the sling. She understood the two surgical procedures were to
1 The Court recites facts in this opinion solely for purposes of reviewing the District Court’s
rulings on the proceedings below. Thus, these “are the facts for present purposes, but they may
not be the actual facts.” Kelly v. Curtis, 21 F.3d 1544, 1546 (11th Cir. 1994) (quoting Swint v.
City of Wadley, 5 F.3d 1435, 1439 (11th Cir. 1993)) (internal quotation marks omitted).
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resolve her medical complications. However, there was no discussion between
Ms. Bergin and her doctor regarding a possibility that the ObTape was defective or
that the manufacturer may have acted negligently.
Though Ms. Bergin’s bleeding and discharge symptoms began to improve
after the September surgery, she continued (and continues) to suffer from other
symptoms which she attributes to ObTape. 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,2 which
subjects claims for personal injury to a two year statute of limitations. Mentor
argued that Ms. Bergin’s claims accrued in 2006, when Dr. Grisham linked some
of her symptoms to ObTape and she therefore could have become aware of a
connection between the ObTape and her injury. 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.
2 For the purposes of the direct-filed cases, the parties agreed that the District Court would apply
the choice of law rules of the state where the plaintiffs resided at the time they filed their
complaints. Ms. Bergin is a Texas resident, and the circumstances giving rise to her claims all
occurred in Texas.
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The District Court rejected Ms. Bergin’s argument as an incorrect
formulation of Texas’ discovery rule, which, the court concluded, does not require
that a plaintiff have knowledge that a product manufacturer has committed a
wrongful act before a claim can accrue. Instead, the court interpreted the Texas
discovery rule as providing that a claim accrues (and the limitations period begins
to run) when the plaintiff is reasonably put on notice of a causal connection
between the product and the injury. The District Court concluded that Ms. Bergin
connected her symptoms to the ObTape in 2006. Thus, the District Court
reasoned, a reasonable person would have taken some action at that point to follow
up on whether her injuries were caused by a defect in the ObTape. See Bergin v.
Mentor Worldwide, LLC, No. 4:13-cv-135, 2016 WL 3049491, at *1 (M.D. Ga.
May 27, 2016); Bergin v. Mentor Worldwide, LLC, No. 4:13-cv-135, 2016 WL
1493534 at *3–4 (M.D. Ga. April 14, 2016). This appeal followed.
II. DISCUSSION
As noted, Ms. Bergin argues that the District Court misinterpreted Texas’
discovery rule. According to Ms. Bergin, the limitations period does not
commence until a plaintiff discovers, or should have discovered, all the elements
of a cause of action. Put differently, she asserts that her claim could not have
accrued until she became aware that her injury was the result of negligence on the
part of Mentor.
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Interpretation of Texas’ discovery rule is a question of law, and subject to de
novo review. Arthur v. King, 500 F.3d 1335, 1339 (11th Cir. 2007) (“[W]e review
the underlying decisions regarding questions of law de novo . . . .”) (citing
Preferred Sites, LLC v. Troup Cty., 296 F.3d 1210, 1220 (11th Cir. 2002)); United
States v. Garrett, 3 F.3d 390, 390 (11th Cir. 1993) (“Questions of law are reviewed
de novo.”).
“In most cases, a cause of action accrues when a wrongful act causes an
injury, regardless of when the plaintiff learns of that injury or if all the resulting
damages have yet to occur.” Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex.
1998). However, a judicially crafted exception—the discovery rule—applies in
instances “when the nature of the injury incurred is inherently undiscoverable and
the evidence of injury is objectively unverifiable . . . .” Id. at 36 (quoting
Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1994))
(internal quotation marks omitted). There is no dispute that the discovery rule
applies in this case.
In interpreting the Texas discovery rule, federal courts have ruled
inconsistently in deciding whether a plaintiff’s claim accrues only when the
plaintiff is placed on reasonable notice that the manufacturer of a product has acted
negligently or whether instead accrual can occur earlier, when the plaintiff is
merely placed on notice of a causal connection between use of the product and the
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injury, regardless of any wrongdoing by the manufacturer. This present litigation
is a prime example of that inconsistency. The district court here, which is
presiding over multi-district product liability litigation concerning the ObTape,
concluded that the statute of limitation begins running under Texas law as soon as
a plaintiff is reasonably placed on notice that use of the product may have caused
her injury. On the other hand, another district court, presiding over other multidistrict
product liability cases concerning a different manufacturer of a transvaginal
surgical mesh sling, has adopted the approach advocated by Ms. Bergin. See
Hovey v. Cook Inc., 97 F. Supp. 3d 836, 844 (S.D.W. Va. 2015) (denying summary
judgment and stating, “because none of [the plaintiff’s] doctors identified a defect
in the [mesh product] as the cause of her injuries, a jury could find that [the
plaintiff] did not possess facts that would lead a reasonable person to further
investigate into wrongdoing until 2013, when [she] saw an Internet
advertisement.”); see also In re Ethicon, Inc., No. 2327, 2016 WL 3067752, at *3
(S.D.W. Va. May 31, 2016) (denying summary judgment where the plaintiff was
unaware of a connection between the alleged wrongful act and her resulting
injury).
As to the Fifth Circuit, which is the federal circuit in which Texas is located,
that court has likewise issued inconsistent rulings. In Timberlake v. A.H. Robins
Co., 727 F.2d 1363 (5th Cir. 1984), the plaintiff sued the manufacturer of a Dalkon
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Shield intrauterine device (IUD) that allegedly caused her injury, having developed
symptoms in 1978, but not suing until 1981 when she saw a television program
suggesting that the manufacturer may have been negligent in its manufacture and
sale of the product. Concluding that the plaintiff had failed to sue within the
applicable Texas statute of limitations, the court rejected her argument that “the
statutory period should be tolled until the plaintiff learns that the defendant’s
conduct may have been wrongful,” holding that the discovery rule did not apply
and that the statute of limitations began in 1978 when the plaintiff “knew of her
injury and its cause.” Id. at 1365, 1366. Stated more formally, in response to
plaintiff’s argument “that Texas law applies a three-pronged analysis with regard
to the discovery rule, and that all three elements—injury, causation in fact, and
legal injury—must coalesce before the statute of limitations begins to run,” the
court was “not persuaded that this is an accurate statement of the applicable law.”
Id. at 1365.
Nevertheless, in that same year, the Fifth Circuit issued two other opinions
that reached a different result on similar facts. In Woodruff v. A.H. Robins Co.,
742 F.2d 228 (5th Cir. 1984), the plaintiff developed a severe pelvic infection
following the insertion of an IUD, after which the IUD was removed in 1973 and
the plaintiff underwent a hysterectomy. She, however, did not file suit until 1981
when she read a newspaper article suggesting a possible causal connection between
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the Dalkon Shield and her injuries. The Fifth Circuit rejected the defendant’s
argument that her lawsuit was time-barred, relying on Mann v. A.H. Robins Co.,
741 F.2d 79, 81 (5th Cir. 1984), which held that a claim does not accrue under the
Texas discovery rule until a plaintiff learns of her injury’s negligent cause. The
court in Woodruff concluded that the plaintiff’s claim had not accrued until a
newspaper article alerted her to the possible connection between the Dalkon Shield
and her physical injuries.
As to Texas court decisions, Ms. Bergin relies greatly on the decision of the
Texas Supreme Court in Childs, which explained accrual under the discovery rule
as follows: “Under this rule . . . a cause of action does not accrue until a plaintiff
knows or, through the exercise of reasonable care and diligence, ‘should have
known of the wrongful act and resulting injury.’ ” 974 S.W. 2d at 37 (quoting S.V.
v. R.V., 933 S.W.2d 1, 4 (Tex. 1996)) (emphasis added). Ms. Bergin argues that
the above emphasized language in that case establishes that a claim cannot accrue
under the discovery rule without some knowledge of the wrongful act. As noted,
the district court here concluded that this language is merely dicta.
The year after issuance of Childs, the Supreme Court of Texas issued a
decision that arguably supports a less expansive reading than Ms. Bergin gives to
Childs. In 1997, the Texas Court of Appeals had noted that the trend in Texas was
towards requiring awareness of a wrongful act:
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Courts have employed several formulations to describe
when a cause of action subject to the discovery rule
accrues. Probably the most common formulation is the
one noted by the appellee: the cause of action accrues
when “the plaintiff discovers, or through the exercise of
reasonable care and diligence should discover, the nature
of his injury.” Id. However, Willis v. Maverick, 760
S.W.2d 642, 646 (Tex. 1988), holds that a cause of action
accrues when “the claimant discovers or should have
discovered through the exercise of reasonable care and
diligence the facts establishing the elements of a cause of
action.”
. . . .
In recent cases, the Texas Supreme Court has employed
a new formulation: a cause of action accrues when a
“plaintiff knew or in the exercise of reasonable diligence
should have known of the wrongful act and resulting
injury.” Diaz v. Westphal, 941 S.W.2d 96, 99 (Tex.
1997); S.V., 933 S.W.2d at 4. This new formulation
makes it clear that a cause of action does not accrue
merely because a plaintiff becomes aware of an injury. In
fact, courts have consistently held that a cause of action
does not accrue until a plaintiff becomes aware of the
wrongful act causing the injury.
Harrison Cty. Fin. Corp. v. KPMG Peat Marwick, LLP, 948 S.W.2d 941, 945–46
(Tex. App. 1997), rev’d sub nom. KPMG Peat Marwick v. Harrison Cty. Hous.
Fin. Corp., 988 S.W.2d 746 (Tex. 1999).
On review, however, the Texas Supreme Court disagreed with the lower
court’s articulation of the discovery rule:
[T]he court of appeals erroneously concluded that in
recent decisions this Court employed a “new
formulation” of the discovery rule. The court of appeals
held that under this “new formulation,” a claim does not
accrue until plaintiff knows not only of the injury, but the
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specific nature of each wrongful act that may have
caused the injury. This is incorrect. The rule in those
cases was, as it is in this one, that accrual occurs when
the plaintiff knew or should have known of the
wrongfully caused injury.
KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 749
(Tex. 1999).
One could read KPMG as holding that a plaintiff’s awareness of a wrongful
act (or lack thereof) is not necessary to trigger accrual of the claim. But KPMG’s
language could also be read to imply that some knowledge of wrongful conduct is
required before a claim can accrue; that is, while awareness of a specific design
defect in a defendant’s product is not required for accrual, some generalized
awareness of the defendant’s wrongdoing is. Moreover, KPMG was not a products
liability case. Indeed, as noted by the district court in Hovey, “the Texas Supreme
Court has yet to address the narrow issue of the discovery rule’s applicability in the
context of implanted medical devices.” Hovey, 97 F. Supp. 3d at 842 n.3.
The cases decided post-KPMG shed minimal light on the matter. Some
cases seem to support Mentor’s position. See, e.g., Newsom v. Brod, 89 S.W.3d
732, 736 (Tex. Ct. App. 2002) (“The plaintiff need not know the specific nature of
each wrongful act that may have caused the injury.”) (citing KPMG, 988 S.W.2d at
749); Alvarado v. The Abijah Grp., Inc., No. 03-13-00060-CV, 2015 WL 4603542,
at *3 (Tex. Ct. App. July 29, 2015) (“The discovery rule does not . . . toll
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limitations until the plaintiff discovers all of the elements of a cause of action.”)
(citing KPMG, 988 S.W.2d at 749); Bruning v. Hollowell, No. 05-13-01033-CV,
2015 WL 1291378, at *3 (Tex. Ct. App. Mar. 23, 2015) (“[E]ven if the discovery
rule applies, it defers accrual of the causes of action only until the plaintiff
discovered or in the exercise of reasonable diligence should have discovered the
wrongful injury.”) (citing KPMG, 988 S.W.2d at 749).
On the other hand, some cases seem to support Ms. Bergin’s position by
continuing to employ the “should have known of the wrongful act” language. See,
e.g., Holland v. Thompson, 338 S.W.3d 586, 593 (Tex. Ct. App. 2010). And other
cases cite the language but then disregard or do not apply it. See, e.g., Rodriguez v.
Crowell, 319 S.W.3d 751, 757 (Tex. Ct. App. 2009) (plaintiff’s claim accrued
under discovery rule even though none of plaintiff’s physicians initially connected
her medical condition to its negligent cause). Thus, the state of the law on this
issue remains unclear.
“When substantial doubt exists about the answer to a material state law
question, a federal court should avoid making unnecessary state law guesses
and . . . offer the state court the opportunity to explicate state law.” Salinas v.
Ramsey, 858 F.3d 1360, 1362 (11th Cir. 2017) (quoting Forgione v. Dennis Pirtle
Agency, Inc., 93 F.3d 758, 761 (11th Cir. 1996) (per curiam) (internal quotation
marks omitted)). “Only through certification can federal courts get definitive
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answers to unsettled state law questions. Only a state supreme court can provide
what we can be assured are ‘correct’ answers to state law questions, because a
state’s highest court is the one true and final arbiter of state law.” Forgione, 93
F.3d at 761 (internal quotation marks omitted).
Because the resolution of this appeal, and potentially many other cases
involved in pending multi-district actions, turns on a material, unsettled state-law
question, we respectfully seek the assistance and guidance of the Texas Supreme
Court in answering this question.

Outcome: Accordingly, the Eleventh Circuit respectfully certifies the following
question of law 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?
To assist the Texas Supreme Court, the entire record in this case, together
with copies of the briefs of the parties, is transmitted herewith.

QUESTION CERTIFIED.

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