Brenda Robinson v. Boston Scientific Corporation

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:12-cv-03700 Copies to all parties and the district court/agency. [999804431].. [15-1441]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1441

BRENDA L. ROBINSON; REX ROBINSON,
Plaintiffs – Appellants,
v.
BOSTON SCIENTIFIC CORPORATION,
Defendant – Appellee.

Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.
Joseph R. Goodwin,
District Judge. (2:12-cv-03700)

Argued:

March 22, 2016

Decided:

April 26, 2016

Before SHEDD, THACKER, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Jessica Ann Kasischke, FLEMING, NOLEN & JEZ, L.L.P.,
Houston, Texas, for Appellants.
Daniel Brandon Rogers, SHOOK,
HARDY & BACON L.L.P., Miami, Florida, for Appellee.
ON BRIEF:
Karen
Beyea-Schroeder, Sylvia
Davidow,
Kelsey
L.
Stokes,
FLEMING, NOLEN & JEZ, L.L.P., Houston, Texas, for Appellants.
Michael Bonasso, Charleston, West Virginia, Lindsey M. Saad,
FLAHERTY SENSABAUGH & BONASSO PLLC, Morgantown, West Virginia,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Brenda

and

Rex

Robinson 1

appeal

the

grant

of

summary

judgment in favor of Boston Scientific Corporation. The district
court concluded that the Robinsons’ claims are barred by Utah’s
two-year statute of limitations for product liability actions.
We affirm, albeit on slightly different reasoning.
I.
Brenda Robinson, a Utah resident, sought treatment from Dr.
Clayton Wilde, an OB/GYN, for urinary stress incontinence and
urinary tract infections. In June 2006, Dr. Wilde recommended
implantation of a transvaginal surgical mesh to alleviate her
symptoms. A transvaginal surgical mesh implant treats medical
conditions

of

the

female

pelvis,

most

commonly

pelvic

organ

prolapse and stress urinary incontinence. The mesh is implanted
into the anterior vaginal wall to help restore a woman’s regular
anatomy.

Robinson

consented

to

the

procedure,

and

Dr.

Wilde

implanted her with Boston Scientific’s Obtryx sling in Salt Lake
City.
During

a

post-surgical

examination,

Dr.

Wilde

instructed

Robinson that she should “avoid intercourse for another month
and try to make sure that she doesn’t get any pressure on her

1

Because Rex Robinson’s claims are derivative of his
wife’s, we refer only to Brenda Robinson unless otherwise noted.

2

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anterior vaginal wall and promote an erosion.” (J.A. 611). At
another post-surgical visit, Dr. Wilde noted that he discussed
possible

mesh

erosion

“most

likely

related

to

intercourse.”

(J.A. 611).
Several months later, in January 2007, Robinson returned
due to continued urinary problems as well as pain during sexual
intercourse (dyspareunia). During a visit on April 25, 2007, Dr.
Wilde noted some erosion of the tape and Robinson recalled Dr.
Wilde telling her that the mesh was “hanging down a little.”
(J.A. 318). Dr. Wilde recommended trimming the mesh and, in May
2007, conducted a revision surgery to remove the eroded portion
of the mesh. In his deposition, Dr. Wilde expressed his belief
that in cases where the mesh did not work as hoped, the erosion
was:
[D]irectly related to two things: Number one is the
person’s
estrogen
status.
People
who
have
low
estrogen, who have thin vaginal mucosa, their mucosa
does not heal well and doesn’t have good blood supply
to it.
And the second one is intercourse, which is as a
problematic event because you’re better off having
these people not have intercourse for three months,
but that’s unacceptable to their partner.
And one of the things—and I did that with her, was
told her that she shouldn’t have intercourse for a
more extended period of time. It does not allow the
mucosa to grow over and get good and thick. It just
keeps getting roughed off.
(J.A. 595).

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Following the revision surgery, Robinson continued to seek
treatment for symptoms, including bleeding, dyspareunia, urinary
tract infections, and incontinence. Robinson’s husband likewise
explained that “it got worse again as time went on,” (J.A. 193),
and that the mesh “felt sharper and sharper,” (J.A. 195).
In
surgery,

February

2012,

Robinson

complications

from

almost

saw

a

five

years

television

transvaginal

after

her

revision

advertisement

surgical

mesh.

In

about

response,

Robinson sought a second opinion about her mesh and eventually
had

the

entire

mesh

extracted.

Shortly

after

the

extraction

surgery, Robinson commenced this action for actual and punitive
damages against Boston Scientific in the United States District
Court for the District of Utah for negligence, strict liability
design defect, manufacturing defect, failure to warn, breach of
express and implied warranties under the Utah Product Liability
Act (UPLA). Her husband brought a derivative action for loss of
consortium.

The

case

was

transferred

to

the

Multi-District

Litigation (MDL) in the Southern District of West Virginia for
pretrial proceedings.
Following

discovery,

Boston

Scientific

moved

for

summary

judgment, arguing that all of Robinson’s claims are barred by
Utah’s two-year statute of limitations for defective products.
The district court granted that motion, concluding that the twoyear limitations period began to run on April 25, 2007, when Dr.
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Wilde told Robinson that the mesh was hanging down and causing
the dyspareunia. In re Boston Scientific Corp., 2015 WL 1466746
(S.D. W.Va. 2015). The district court also found Mr. Robinson’s
derivative claims are barred. The Robinsons timely appealed.
II.
We review the grant of summary judgment de novo. Wilkins v.
Montgomery, 751 F.3d 214, 220 (4th Cir. 2014). The parties agree
that Utah substantive law governs this diversity action. The
UPLA provides:
A civil action under this part shall be brought within
two years from the time the individual who would be
the claimant in the action discovered, or in the
exercise of due diligence should have discovered, both
the harm and its cause.
U.C.A. § 78B-6-706 (2008).
Under
statute

Utah

of

plaintiffs

law,

“all

limitations
on

notice

to

that

is
make

is

required

sufficient
further

to

trigger

information

inquiry

if

to

they

the
put

harbor

doubts or questions.” Macris v. Sculptured Software, Inc., 24
P.3d

984,

990

(Utah

2001).

In

cases

involving

defective

products, the limitations period begins to run when a plaintiff
knows or should know: (1) that she has been injured; (2) the
identity of the maker of the allegedly defective product; and
(3)

that

the

product

had

a

possible

causal

relation

to

her

injury. Aragon v. Clover Club Foods Co., 857 P.2d 250, 252-53
(Utah Ct. App. 1993).
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Robinson argues that the district court misconstrued Utah
law by failing to require Boston Scientific to show that she
knew the mesh was the cause-in-fact of her injury. Robinson also
argues that, even under the “possible causal relation” standard
employed by the district court, she has raised a genuine issue
of material fact as to whether she should have known, on April
25, 2007, that the mesh was a possible cause of her harm. 2
For

purposes

of

this

appeal,

we

will

accept

Robinson’s

argument that, under Utah law, “possible causal relationship”
refers to the cause-in-fact. Even accepting Robinson’s view of
Utah law, however, we conclude that her claims are untimely. As
the nonmoving party at summary judgment, Robinson is entitled to
all reasonable inferences in her favor. T-Mobile Northeast, LLC
v. City Council of Newport News, 674 F.3d 380, 384-85 (4th Cir.
2012).
that,

In

this

during

case,

the

that

April

includes

25,

2007,

the

reasonable

office

visit,

inference
Dr.

Wilde

informed Robinson that the mesh was hanging down but linked the
erosion

to

intercourse

Robinson’s
with

her

own

actions—her

husband

before

the

resumption
healing

of

sexual

process

was

complete—rather than a product defect. Dr. Wilde’s comments to
2

Robinson makes two additional arguments: that the district
court improperly applied the summary judgment standard and that
she raised a genuine issue of material fact as to the identity
of the manufacturer. We have reviewed these claims and find them
to be without merit.

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Robinson

on

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that

date

thus

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might

not

have

led

Robinson

to

believe that the mesh was the cause-in-fact of her harm.
However, Dr. Wilde also told Robinson that the revision
surgery would alleviate these symptoms. Despite this assurance,
after

Dr.

Wilde

performed

the

revision

surgery

in

May

2007

Robinson continued to have the same symptoms. Specifically, both
Robinson and her husband continued to have dyspareunia and her
husband could still feel the mesh. At this point, Robinson was
on inquiry notice of a possible causal relationship between the
mesh and her harm. In other words, when the revision surgery
failed

to

information”

correct
to

put

her

symptoms,

her

“on

notice

Robinson
to

make

had

“sufficient

further

inquiry”

about the cause-in-fact of her harm. Macris, 24 P.3d at 990. 3
At the very least, Robinson had sufficient information by
the end of 2007 when the revision surgery failed to correct her

3

Robinson’s argument to the contrary—that her limitations
period did not begin until she became subjectively aware that
the mesh was causing her harm in 2012—contradicts Utah’s purpose
in imposing a statute of limitations: “to compel the exercise of
a right of action within a reasonable time and to suppress stale
and fraudulent claims so that claims are advanced while evidence
to rebut them is still fresh.” Craftsman Builder’s Supply, Inc.
v. Butler Mfg. Co., 974 P.2d 1194, 1198 (Utah 1999) (internal
quotation marks omitted). In Robinson’s view, the advertisement
was happenstance. Had she not seen it (or something like it),
her limitations period would have remained tolled until the date
she did, regardless of when (if ever) that might occur. That
potential for open-endedness runs afoul of Utah’s desire to
compel actions in a “reasonable time.”

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symptoms. 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. 4
Accordingly, her claims, and her husband’s derivative claims,
are barred by Utah’s two-year statute of limitations.
III.
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED

4

Because the cause-in-fact standard is more stringent than
the possible cause standard the district court applied, it
follows that, if Robinson was on inquiry notice that the sling
was a cause-in-fact by the end of 2007, she was also on notice
that it was a possible cause.

8