Sharrene Timothy v. Boston Scientific Corporation

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:12-cv-05950 Copies to all parties and the district court/agency. [999988474].. [15-1454]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1454

SHARRENE TIMOTHY; THOMAS TIMOTHY,
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-05950)

ARGUED:

October 26, 2016

Decided:

December 16, 2016

Before THACKER, and HARRIS, Circuit Judges, and Gerald Bruce
LEE, United States District Judge for the Eastern District of
Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.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.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Sharrene Timothy and Thomas Timothy, 1 Utah residents,
(collectively,

“Appellants”)

Scientific

Corporation

Appellee’s

transvaginal

filed

(“Appellee”)
mesh

suit

against

alleging

products.

The

Boston

defects

district

in

court

granted summary judgment in favor of Appellee, concluding that
Appellants’

claims

are

barred

by

Utah’s

two

limitations for product liability actions.

year

statute

of

For the following

reasons, we affirm.
I.
On June 30, 2009, Dr. Steven Johnson implanted Mrs.
Timothy with Boston Scientific’s transvaginal mesh products to
treat stress urinary incontinence.
Johnson

advised

Mrs.

Timothy

Prior to the surgery, Dr.

that

he

would

use

Boston

Scientific’s products, informed her of the “pros, cons, risks,
and benefits of mesh,” and warned of potential side effects such
as erosion.

J.A. 462; see id. at 134, 473. 2

1

Thomas Timothy’s claims are derivative of his wife’s, and
we refer only to Sharrene Timothy unless otherwise noted.
Because we find Mrs. Timothy’s claims are time-barred, Mr.
Timothy’s suit must also be dismissed as it is “subject to the
same
defenses,
limitations,
immunities,
and
provisions
applicable to the claims of the injured person.”
Utah Code
§ 30-2-11(4)(b).
2

Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.

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According to Mrs. Timothy, approximately six or seven
months later, she began experiencing significant pelvic pain,
dyspareunia, blood in her urine, and a scratching sensation in
her vagina.

Because of her problems, on April 19, 2010, Mrs.

Timothy went to see Dr. Johnson.

Dr. Johnson examined Mrs.

Timothy and found mesh erosion and told her he could “feel the
mesh.”

J.A. 138.

Dr. Johnson subsequently performed a second

surgery to repair the mesh.

However, according to Appellants,

Mrs. Timothy continued to suffer pain, an itching sensation in
her vagina, infections, urinary incontinence, and dyspareunia.
Then,

in

late

2011,

Mrs.

Timothy

saw

an

attorney

television advertisement about possible complications resulting
from transvaginal surgical mesh.

After contacting one of the

law firms advertising their services, on September 26, 2012 -more than three years after Mrs. Timothy’s original surgery -Appellants filed action against Appellee as part of the MultiDistrict Litigation (“MDL”) in the Southern District of West
Virginia

claiming

Following

injuries

discovery,

from

Appellee

allegedly

moved

for

defective
summary

mesh.

judgment,

arguing Mrs. Timothy’s claim accrued more than two years prior
to her filing.
concluding

that

The district court granted summary judgment,
Appellants’

claim

was

barred

by

Utah’s

applicable two year statute of limitations for product defect
claims.

Appellants timely appealed.
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II.
We review de novo a district court’s grant of summary
judgment.

See RLM Commc’ns, Inc. v. Tuschen, 831 F.3d 190, 195

(4th Cir. 2016).
III.
A.
Utah’s choice of law principles control because the
actions forming the basis of the lawsuit occurred there.

See In

re Temporomandibular Joint (TMJ) Implants Prod. Liab. Litig., 97
F.3d 1050, 1055 (8th Cir. 1996).

Utah law applies the most

significant relationship test to determine the applicable law.
See Waddoups v. Amalgamated Sugar Co., 54 P.3d 1054, 1060 (Utah
2002)

(“Having

analysis,

that

concluded,

for

plaintiffs’

purposes

claims

of

sound

the
in

choice
tort,

of
we

law
next

determine which state ‘has the most significant relationship to
the occurrence and the parties.’”) (quoting Restatement (Second)
Conflict of Laws § 145(1) (1971)).

Because the surgery and

injury occurred in Utah, we find Utah has the most significant
relationship and therefore apply Utah’s substantive law.
The Utah Products Liability Act (“UPLA”) creates a two
year statute of limitations:
A civil action under this part shall be
brought within two years from the time the
individual who would be the claimant in the
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action discovered, or in the exercise of due
diligence should have discovered, both the
harm and its cause.
Utah Code § 78B-6-706 (2008).
Under Utah law, “all that is required to trigger the
statute

of

plaintiffs

limitations
on

notice

is

to

doubts or questions.”

make

further,

“everything

to

the

which

further

information

inquiry

if

to

they

put

harbor

Macris v. Sculptured Software, Inc., 24

P.3d 984, 990 (Utah 2001).
inquire

sufficient

Once a person is put on notice to

person
such

is

imputed

inquiry

might

with
have

knowledge

led.”

of

Pioneer

Builders Co. of Nev. v. K D A Corp., 292 P.3d 672, 679 (Utah
2012).

A claim accrues when a person knows or should know all

of the information necessary to state her claim for relief.

See

Bank One Utah, N.A. v. W. Jordan City, 54 P.3d 135, 137-38 (Utah
Ct. App. 2002).
For

a

products

liability

action,

the

claim

accrues

when a person knows or should know: (1) the injury; (2) the
identity of the maker of the allegedly defective product; and
(3)

a

possible

manufacturer.

causal

relation

between

the

product

and

the

See Aragon v. Clover Club Foods Co., 857 P.2d

250, 252-53 (Utah Ct. App. 1993).
Appellants argue that the causal relationship required
for a claim to accrue is that the product be the cause-in-fact
of

an

injury.

Even

assuming

their
6

argument

is

correct,

we

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conclude that Appellants’ claims accrued on April 19, 2010, and
are therefore barred by the applicable statute of limitations. 3
B.
Even

before

her

April

19,

2010

doctor

visit,

Mrs.

Timothy was on notice of her injury and the identity of the
product manufacturer.

Before surgery, Dr. Johnson told Mrs.

Timothy he was using products manufactured by Boston Scientific
in the surgery and warned her of possible erosion.
to

the

April

19,

2010

visit,

Mrs.

Timothy

had

And, prior
experienced

bleeding, pain, and an itching sensation, which constituted her
injury, for at least three months.
Moreover, during the visit, Dr. Johnson put her on
notice of the possible causal connection.

Specifically, Dr.

Johnson told Mrs. Timothy he could “feel the mesh” and that the
mesh “was causing the bleeding.”

J.A. 139 (emphasis supplied).

As a result, Dr. Johnson recommended a second surgery to remove
and replace the mesh.

His office notes identify that there was

already “some erosion of her mesh.”

Id. at 153.

Thus, at least

as of the April 19, 2010 doctor visit, Mrs. Timothy was on

3

Appellants raise a series of additional arguments relating
to alleged procedural errors in the district court’s grant of
summary judgment.
None of these arguments have merit.
The
district
court
appropriately
granted
summary
judgment
to
Appellee after finding there were no genuine issues of material
fact. See Fed. R. Civ. P. 56(a).

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notice of: (1) her injury; (2) the identity of the defective
product’s manufacturer; and (3) the possible causal connection
between her injuries and the mesh, which required her to make
further inquiries.

See First Am. Title Ins. Co. v. J.B. Ranch,

Inc., 966 P.2d 834, 837 (Utah 1998).
Nevertheless, Appellants argue that inquiry notice was
not

triggered

advertisement.
advertisement

until

they

saw

an

attorney

television

However, it seems highly unlikely a lawyer’s
provided

any

new

medically

relevant

information

about “the connection between [Mrs. Timothy’s] injuries and the
actual cause” than that which had already been provided by a
medical

professional.

Appellants’

Br.

3.

Her

doctor

had

already told her the mesh was “causing the bleeding” and warned
of side effects from the mesh, including erosion.

J.A. 141.

C.
Mrs.

Timothy

had

a

duty

to

inquire

starting

on

at

least April 19, 2010, and this court must now determine what a
reasonable inquiry would have uncovered.
Co. of Nev., 292 P.3d at 679.
inquiry

would

have

led

See Pioneer Builders

For starters, even the most basic
to

the

2008

Food

and

Administration’s (“FDA”) warning about transvaginal mesh. 4

4

Drug
The

That the FDA provided a notification in 2008 and the
content of that notification are facts that can be judicially
noticed because they “can be accurately and readily determined
(Continued)
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FDA Notification warned “Serious Complications Associated with
Transvaginal
Organ

Placement

Prolapse

and

of

Surgical

Stress

Mesh

Urinary

in

Repair

Incontinence,”

of

Pelvic
and

it

cautioned that transvaginal mesh was linked to “pain, urinary
problems, and recurrence of prolapse and/or incontinence.”
Notification. 5

FDA

Mrs. Timothy experienced all of these symptoms,

and, indeed, her doctor had already told her mesh was causing
her to bleed.

See J.A. 140 (“Q: So did Dr. Johnson tell you

that he believed that the mesh was what was causing you to
bleed?

A: Yes.”).

The FDA Notification also noted that, in

unusual cases, there were reports of “a significant decrease in
patient quality of life due to discomfort and pain, including
dyspareunia.”

Mrs. Timothy also experienced these symptoms.

Because the FDA had issued an official notification
about the link between the product Mrs. Timothy used and the
injuries

she

suffered,

we

have

no

trouble

concluding

Mrs.

from sources whose accuracy cannot reasonably be questioned.”
Fed. R. Evid. 201(b)(2); see Food and Drug Admin., FDA Public
Health Notification: Serious Complications Associated with
Transvaginal Placement of Surgical Mesh in Repair of Pelvic
Organ Prolapse and Stress Urinary Incontinence (Oct. 20, 2008),
http://www.fda.gov/MedicalDevices/Safety/AlertsandNotices/Public
HealthNotifications/ucm061976.htm (“FDA Notification”) (saved as
ECF opinion attachment).
5

Indeed, the FDA was even more definite about potential
health complications than the attorney advertisements Mrs.
Timothy saw.

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Timothy had notice that the mesh was the cause-in-fact of her
injuries since her doctor visit on April 19, 2010.

As such, her

action filed more than two years later on September 26, 2012, is
time-barred.
IV.
For

the

foregoing

reasons,

the

judgment

of

the

district court is affirmed.
AFFIRMED

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