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Bergin v. Mentor Worldwide LLC

United States Court of Appeals, Eleventh Circuit

September 20, 2017

ANN MARIE BERGIN, Plaintiff-Appellant,
v.
MENTOR WORLDWIDE LLC, et al., Defendants-Appellees.

         Appeal from the United States District Court for the Middle District of Georgia D.C. Docket Nos. 4:08-md-02004-CDL, 4:13-cv-00135-CDL

          Before JORDAN and JULIE CARNES, Circuit Judges, and SCHLESINGER, [*] District Judge.

          PER CURIAM:

         CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT TO THE SUPREME COURT OF TEXAS PURSUANT TO ARTICLE V, § 3-c(a) OF THE TEXAS CONSTITUTION

         TO THE SUPREME COURT OF TEXAS AND ITS HONORABLE JUSTICES:

         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.

          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 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 ...


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