Products Liability Law Daily Wrap Up, STATUTES OF LIMITATIONS AND REPOSE—MEDICAL DEVICES—E.D.Ky.: Certification of statute of limitations/tolling question previously settled by the Sixth Circuit rejected, (Dec 3, 2021)

By Harold S. Berman, J.D.

A mesh device manufacturer could not certify its question concerning tolling of the statute of limitations to the state supreme court because a federal court of appeals already had determined the issue based on state court precedent.

A pelvic mesh device manufacturer that had been sued by a patient alleging that her injuries were caused by one of the manufacturer’s pelvic mesh devices that had been implanted in the patient could not certify a question to the Kentucky Supreme Court relating to when the discovery rule tolled the applicable statute of limitations, a federal district court in Kentucky ruled. In denying the manufacturer’s motion to certify, the court explained that the U.S. Court of Appeals for the Sixth Circuit already had considered the issue in this case and, based on Kentucky state law precedent, had determined that the injured patient’s awareness of device defects causing her harm was the determining factor (Cutter v. Ethicon, Inc., December 1, 2021, Reeves, D.).

A patient who had been implanted with a pelvic mesh device which she alleged was defective sued the device manufacturer, Ethicon, Inc., in 2012. The case was later transferred to a federal district court in West Virginia overseeing the multidistrict litigation concerning the manufacturer’s pelvic mesh devices, and then it was remanded to the current court in 2019. The court then found that certain personal injury, products liability, and loss of consortium (asserted by the patient’s husband and co-plaintiff) claims were barred by the applicable statute of limitations [see Products Liability Law Daily’s January 14, 2020 analysis]. The patient and her husband appealed to the U.S. Court of Appeals for the Sixth Circuit, which held specifically that when the discovery rule tolling period ended and the limitations period began for the couple’s claims was a question of fact to be determined by a jury [see Products Liability Law Daily’s August 26, 2021 analysis]. Consequently, the Sixth Circuit reversed the district court’s decision and remanded the case for further proceedings.

Motion to certify. The manufacturer filed a motion to certify to the Supreme Court of Kentucky the question of whether, in a latent injury products liability case, the discovery rule tolls the statute of limitations when a plaintiff has actual or constructive knowledge that the product at issue may have caused her harm. The manufacturer contended that the Sixth Circuit’s decision left unresolved the question of “whether constructive knowledge of a defect is required for the statute of limitations period to begin in a latent injury products liability case, or [whether it is] sufficient for the plaintiff to have constructive knowledge that the product caused injury.” Moreover, Ethicon asserted that Kentucky appellate courts have not addressed the question, leaving a lack of controlling precedent on the issue.

Certification inappropriate. The federal district court denied the manufacturer’s motion, ruling that certification of this question was not appropriate. Notwithstanding the manufacturer’s argument that the Sixth Circuit had not resolved this question, the majority opinion in fact provided clear guidance concerning what circumstances end the discovery rule tolling period and begin the limitations period. The majority opinion, citing Kentucky state law precedent, explained that a discovery rule analysis focuses on when the injured person first discovered the wrongful conduct causing the injury rather than when the injury first occurred. Under the majority’s analysis, the patient’s awareness of potential defects in the pelvic mesh device that caused her harm was the determining factor governing the relevant inquiry.

The Sixth Circuit found there was evidence in the case that the patient experienced pain, but because her doctors told her after a second surgery that everything looked fine, she was unaware that her pain was caused by a defect in the mesh device. Further, some of the evidence the appeals court found insufficient to trigger the limitations period as a matter of law was evidence that indicated the mesh device had caused the patient harm without necessarily suggesting that a defect in the device had caused that harm. The fact that the patient was on notice that the product may have contributed to or caused her pain did not necessarily trigger the limitations period. This was so because she could have reasonably interpreted her doctors’ opinions to mean that her pain was not attributable to the mesh device’s defects. Evident in the appeals court’s opinion was its determination that the tolling and limitations period inquiry was contingent on when the patient knew or should have known that the defects in the mesh device caused her harm.

The Sixth Circuit’s majority opinion demonstrated that the appellate court already effectively determined that the tolling/limitations period inquiry centered on when the patient knew or should have known that the mesh device’s potential defects caused her harm. Further, the law of the case doctrine-which precludes a court from reconsidering issues “decided at an early stage of the litigation, either explicitly or by necessary inference from the disposition”-requires that the court adhere to this determination, according to the district court. Under this doctrine and the complementary mandate rule, the district court stated, a trial court must “proceed in accordance with the mandate and law of the case as established by the appellate court” after a case is remanded. Therefore, the law of the case precluded further consideration of this issue such that certification of the question proposed by Ethicon was not appropriate.

Even if the law of the case doctrine did not apply, the district court found that “general certification questions counsel[ed] against certifying” Ethicon’s proposed question. The Sixth Circuit’s opinion suggested a “reasonably clear and principled course” on the point of law at issue here and the appellate court’s analysis was grounded in Kentucky caselaw. Moreover, the district court said that certification would not serve the interests of judicial economy. Consequently, the district court found no need to certify the manufacturer’s proposed question to the Kentucky Supreme Court.

The case is Civil Action No. 5:19-443-DCR.

Attorneys: Charles C. Adams, Jr. (Herren & Adams LLP) for Larry A. Cutter. Lori E. Hammond (Frost Brown Todd LLC) for Ethicon, Inc.

Companies: Ethicon, Inc.

Cases: CourtDecisions SofLReposeNews MedicalDevicesNews KentuckyNews