Ethicon Media Monitoring 04/29/2016

Client Attorney Privileged/Attorney Work Product/At Request of Counsel

Online Sources

1. 4th Circ. Affirms Toss Of Utah Woman's Vaginal Mesh Suit

   Apr 28, 2016 | Law360

   By John Kennedy
   
   
   The Fourth Circuit on Tuesday affirmed a lower court's ruling that a case thrown out of the sprawling pelvic mesh multidistrict litigation was barred by a two-year statute of limitations, finding that the woman should've begun questioning the mesh's effectiveness by at least the end of 2007.

Full Text of Stories Below

Client Attorney Privileged/Attorney Work Product/At Request of Counsel

Online Sources

1. 4th Circ. Affirms Toss Of Utah Woman's Vaginal Mesh Suit

   Apr 28, 2016 | Law360

   By John Kennedy

   The Fourth Circuit on Tuesday affirmed a lower court's ruling that a case thrown out of the sprawling pelvic mesh multidistrict litigation was barred by a two-year statute of limitations, finding that the woman should've begun questioning the mesh's effectiveness by at least the end of 2007.
   

   The three-judge panel said in an unpublished opinion that plaintiff Brenda L. Robinson's claims, as well as her husband's derivative claims, came too long after the expiration of Utah's two-year statute of limitations for product liability actions. Robinson's case was cut from the MDL afterBoston Scientific Corp., which made the mesh, won summary judgment last year.
   

   Although the West Virginia federal court overseeing the case ruled that the two-year clock began to tick on April 25, 2007, when Dr. Clayton Wilde told Robinson that her problems were being caused by the mesh, the appellate court took a slightly different route.
   

   Though Wilde told Robinson that the mesh was hurting her, he attributed it more to sexual intercourse rather than a product defect, the court said, and she could've believed that she was at fault, not the mesh itself. However, Wilde also told her that surgery could alleviate her symptoms, which it ultimately did not.
   

   "When the revision surgery failed to correct her symptoms, Robinson had 'sufficient information' to put her 'on notice to make further inquiry' about the cause-in-fact of her harm," the Fourth Circuit said. "By that point, Robinson was on inquiry notice that the mesh could be the cause-in-fact of her harm and was required to perform due diligence to determine if it was the actual cause."
   

   Instead, she continued to seek treatment for her symptoms, and it wasn't until February 2012, almost five years after the revision surgery, when Robinson saw a television advertisement about complications from transvaginal surgical mesh, that she first considered the mesh may have been defective.
   

   She sought a second opinion about her mesh and eventually had it all extracted, then sued Boston Scientific in Utah for negligence and other claims, the court said.
   

   The MDL is ongoing, and on Monday, U.S. District Judge Joseph R. Goodwin said that several dozen women have agreed to end their suits against C.R. Bard Inc. He dismissed the suits from roughly 50 women with prejudice, saying that all their claims had been settled against Bard and other companies named in their suits over allegedly defective mesh.
   

   There are some 10,000 cases pending against Bard in the MDL, court records show.
   

   Even so, those are only part of the litigation of mesh manufacturers, including Ethicon Inc., Bard and Boston Scientific.
   Seven separate MDLs comprising 70,000 cases are pending in West Virginia over the allegedly defective products.
   

   The U.S. Food and Drug Administration recently reclassified pelvic mesh devices like those at issue in the suits as high-risk devices that must undergo the agency's most stringent safety evaluation before hitting the market.
   

   Neither Robinson nor Boston Scientific could be reached for comment Wednesday.
   

   The Fourth Circuit panel was comprised of U.S. Circuit Judges Dennis W. Shedd, Stephanie D. Thacker and Pamela A. Harris.
   

   Robinson is represented by Jessica Ann Kasischke, Karen Beyea-Schroeder, Sylvia Davidow and Kelsey L. Stokes of Fleming Nolen & Jez LLP.
   

   Boston Scientific is represented by Daniel Brandon Rogers of Shook Hardy & Bacon LLP, and Michael Bonasso and Lindsey M. Saad of Flaherty Sensabaugh & Bonasso PLLC.
   

   The case is Brenda L. Robinson, et al., v. Boston Scientific Corp., case number 15-1441, in the U.S. Circuit Court of Appeals for the Fourth Circuit.
   

   Return to headline | Return to top

Full Text of Stories Below