Sharrene Timothy v. Boston Scientific Corporation
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:12-cv-05950 Copies to all parties and the district court/agency. .. [15-1454]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SHARRENE TIMOTHY; THOMAS TIMOTHY,
Plaintiffs - Appellants,
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)
October 26, 2016
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Affirmed by unpublished per curiam opinion.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.
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,
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Unpublished opinions are not binding precedent in this circuit.
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Sharrene Timothy and Thomas Timothy, 1 Utah residents,
granted summary judgment in favor of Appellee, concluding that
limitations for product liability actions.
For the following
reasons, we affirm.
On June 30, 2009, Dr. Steven Johnson implanted Mrs.
Timothy with Boston Scientific’s transvaginal mesh products to
treat stress urinary incontinence.
Prior to the surgery, Dr.
Scientific’s products, informed her of the “pros, cons, risks,
and benefits of mesh,” and warned of potential side effects such
J.A. 462; see id. at 134, 473. 2
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
applicable to the claims of the injured person.”
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
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
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.
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
arguing Mrs. Timothy’s claim accrued more than two years prior
to her filing.
The district court granted summary judgment,
applicable two year statute of limitations for product defect
Appellants timely appealed.
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We review de novo a district court’s grant of summary
See RLM Commc’ns, Inc. v. Tuschen, 831 F.3d 190, 195
(4th Cir. 2016).
Utah’s choice of law principles control because the
actions forming the basis of the lawsuit occurred there.
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
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
doubts or questions.”
Macris v. Sculptured Software, Inc., 24
P.3d 984, 990 (Utah 2001).
Once a person is put on notice to
Builders Co. of Nev. v. K D A Corp., 292 P.3d 672, 679 (Utah
A claim accrues when a person knows or should know all
of the information necessary to state her claim for relief.
Bank One Utah, N.A. v. W. Jordan City, 54 P.3d 135, 137-38 (Utah
Ct. App. 2002).
when a person knows or should know: (1) the injury; (2) the
identity of the maker of the allegedly defective product; and
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
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conclude that Appellants’ claims accrued on April 19, 2010, and
are therefore barred by the applicable statute of limitations. 3
Timothy was on notice of her injury and the identity of the
Before surgery, Dr. Johnson told Mrs.
Timothy he was using products manufactured by Boston Scientific
in the surgery and warned her of possible erosion.
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.
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
Appellants raise a series of additional arguments relating
to alleged procedural errors in the district court’s grant of
None of these arguments have merit.
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
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
However, it seems highly unlikely a lawyer’s
about “the connection between [Mrs. Timothy’s] injuries and the
actual cause” than that which had already been provided by a
already told her the mesh was “causing the bleeding” and warned
of side effects from the mesh, including erosion.
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.
See Pioneer Builders
For starters, even the most basic
Administration’s (“FDA”) warning about transvaginal mesh. 4
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
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FDA Notification warned “Serious Complications Associated with
cautioned that transvaginal mesh was linked to “pain, urinary
problems, and recurrence of prolapse and/or incontinence.”
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
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
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
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),
HealthNotifications/ucm061976.htm (“FDA Notification”) (saved as
ECF opinion attachment).
Indeed, the FDA was even more definite about potential
health complications than the attorney advertisements Mrs.
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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
district court is affirmed.
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