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Mesh Medical Device News Desk, August 28, 2017 ~ The following story underscores the importance  of  recognizing injury as soon as it happens and considering litigation.

Many people are repelled by the idea of “going to court.”  

MND has heard multiple times, “I’m not that sort of person,” but there is no shame in righting a wrong in court as is allowed by the Seventh Amendment. Financial reparations are the only remedy you have in civil litigation, such as product liability, also known as defective product law.

If you delay, you could have the outcome of Gerry Adams.

The Order and Judgment came down last Friday, August 25 in the Tenth Circuit Court of Appeals. It was the last bite of the apple for  Gerry Adams, a Utah woman who was implanted with an American Medical Systems/ Caldera Desarda mesh in July 2007.

The case is Gerry A. Adams v. American Medical System, Inc and Caldera Medical (14-4057). Circuit Judge David M. Ebel wrote the Order and Judgment.

 

UTAH LAW

Since she is a resident of Utah, her product liability case was governed by Utah law.  Plaintiff, Gerry Adams alleged her mesh sling was defective.  The question was whether she had exceeded the statute of limitations.

In Utah, the statute requires Adams to bring a claim within two years after she discovered or should have discovered her “harm and its cause.”

The defense says Adams should have known by November 2007 she had been harmed. That’s when she was told she had to endure a second surgery to remove part of the mesh sling to remedy pain and bleeding.  Instead she waited 5.5 years.

The district court dismissed Adam’s claims and the appellate court agreed under Fed. Rules of Civil Procedure 12 (b) (6).

 

BACKGROUND

Adams had an American Medical Systems and Caldera Medical Desara Sling System implanted in July 2007. Right after surgery, Adams complained of severe pain and vaginal bleeding.

By November 2007, doctors discovered a portion of the sling had migrated and was protruding into the vaginal canal and needed to be excised or removed, “as much as possible.”  By December she had nearly 2 cm removed causing worse incontinence than before along with vaginal pain, bleeding, painful intercourse, and severe infections, occurring every couple of months.

By February 2013, another doctor found two pieces of mesh protruding through her vaginal roof and recommended a full removal of the sling.

By June 2013, Ms. Adams filed a product liability lawsuit, 5.5 years after the second surgery.

 

TOO LATE?

The defendants filed a Motion to Dismiss based on exceeding the statute of limitations. Soon afterward, Adams entered into a settlement with Caldera. Caldera is now dismissed from this appeal.

For her part, Adams said the statute of limitations should begin when she knew there was a defect in the mesh sling. Only when the doctor in 2013 recommended a full removal would she have gained that understanding.

The appellate court said it could not find any Utah Supreme Court decision holding that a two-year limitations period does not run until the plaintiff knows, or should have known, that the harm is caused not just by the product but by a “defect” in that product.

Admittedly, the Utah Supreme Court has not addressed this issue.

What is absent from this decision is what Adams was told – the mesh is fine, the mesh is not defective, it couldn’t be the mesh,  it’s your problem alone, it can’t be removed – common statements made to mesh-injured women.  Also, Adams is not an attorney and may have been easily dissuaded from an understanding about product liability law and what constitutes a “defect.”

The Honorable Neil Gorsuch participated in the oral argument but not in the final decision in the Adams case, which was left up to the two remaining justices in the panel, Ebel and Tymkovich.  Gorsuch is now a U.S. Supreme Court Judge.

Earlier this month, Endo International, which owns AMS, agreed to settle the 22,000 unresolved pelvic mesh product liability lawsuits here and globally.  The company agreed to set aside $775 million bringing to a total of more than $3.58 billion to resolve its pelvic mesh litigation.

LEARN MORE:

See the MND story here. 

Statute of Limitation by State, Findlaw here.

MND on Statute of Limitations, June 2012, here. 

Seventh Amendment to the U.S. Constitution here.