By Mary Alice Robbins

The Texas Supreme Court will decide whether, in a products liability case, the Texas discovery rule requires a plaintiff to have some knowledge of possible wrongdoing by the manufacturer before the plaintiff’s claims can accrue.

Texas law subjects personal injury claims to a two-year statute of limitations, but it has been unclear when the limitations period begins to run.

On Oct. 6, the Supreme Court accepted a certified question from the U.S. Court of Appeals for the Eleventh Circuit in Ann Marie Bergin v. Mentor Worldwide LLC, et al., a case involving injury claims stemming from implantation of a suburethral mesh sling product called ObTape Transobturator Tape.

“It’s a very important case,” said Lonny Hoffman, a University of Houston Law Center professor and expert on procedural law in federal and state courts.

Hoffman said the Supreme Court’s decision in Bergin could go beyond implant cases and potentially touch all product liability cases.

The Eleventh Circuit’s opinion provides the following background on the case: Bergin, a Texas resident, was implanted with ObTape by her physician in September 2005 and began developing complications within a few months. After her doctor informed Bergin in March 2006 that the tape was partially exposed, she underwent two surgeries, but the complications continued.

As noted in the opinion, Bergin filed her claim against Mentor, developer of the mesh sling product, on May 14, 2013, in the U.S. District Court for the Middle District of Georgia.  Bergin’s doctor testified that he “probably” discussed with her the possibility that her symptoms were related to the mesh sling exposure. Bergin testified that, based on the conversations with her doctor, she thought her body was rejecting the sling.

Mentor argued that Bergin’s claims were time-barred and began accruing in 2006 when her doctor linked some of her symptoms to ObTape. According to the Eleventh Court’s opinion, Bergin has insisted that her claims did not accrue until 2013 when she saw a television advertisement alleging that ObTape was defective.

In granting the defense’s motion for summary judgment, the district court rejected Bergin’s argument, concluding that Texas’ discovery rule does not require that a plaintiff have knowledge that a manufacturer has committed a wrongful act before a claim can accrue.

“Instead, the court interpreted the Texas discovery rule as providing that a claim accrues (and the limitations period begins to run) when the plaintiff is reasonably put on notice of a causal connection between the product and the injury,” the appeals court stated in the opinion.

But another federal district court in West Virginia has adopted the approach advocated by Bergin, and the U.S. Court of Appeals for the Fifth Circuit has issued inconsistent rulings on the issue.  State courts in Texas also have had conflicting opinions, and the Texas Supreme Court has not yet addressed the narrow issue of the discovery rule’s applicability with regards to implanted medical devices, the Eleventh Circuit observed.

The Eleventh Circuit certified the question to the Supreme Court on Sept. 25.

“We feel that the Texas law supports our position,” said Bergin’s attorney Leigh O’Dell, a principal in the Beasley Allen Law Firm in Montgomery, Alabama.

O’Dell said that neither Bergin nor her physician had noticed that the ObTape was defective before Bergin saw the TV ad.

Dustin Rawlin, one of Mentor’s attorneys and a partner in Tucker Ellis in Cleveland, Ohio, did not return a phone call for comment.

Hoffman said that there is “very favorable language for the plaintiff” in the state Supreme Court’s 1998 opinion in Childs v. Haussecker. In Childs, the Supreme Court explained accrual under the discovery rule as follows: “Under this rule . . . a cause of action does not accrue until a plaintiff knows, or through the exercise of reasonable care and diligence ‘should have known of the wrongful act and resulting injury.’”

However, the district court in Bergin concluded that language is “merely dicta,” the Eleventh Circuit noted in its opinion.