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How Cases Are Dismissed – Adams v. American Medical Systems

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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, incontinence 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. 

23 Comments

  1. diva64 says:

    So many women have suffered years seeking treatment with doctors not diagnosing the problem , telling them the problem is in their head, or that they can’t find the Mesh. Mesh patients were not sent out recall letters like they do with automobiles. A woman knows something is wrong and depends on honesty and knowledge of doctors to help them.
    This has not happened in the catastrophic defective medical device .Some. have suffered year after years with no real help or diagnoses, only putting the pieces together when some announcements through probably attorneys listed the symptoms when saying call this number. Women knew then what was wrong , and all the problems that mesh injured people are suffering was not listed.
    Now instead of listing symptoms they are advertising if you have had 2 or more surgeries call.
    There absolutely should not be a statue of limitations when you had 98% of doctors in denial, lying, or unable to do the removal and failed to explain the seriousness and refer the patients. Treating with Opoids was not treatment it was placing a band -aid on the problem and saying woman quit complaining..I know I begged one H.M.O. for test telling them I wasn’t asking them for the surgery I just needed to find out , so I could seek a qualified surgeon , my request was denied.
    Appeal and overturn statue of limitations for reporting mesh or hold all the doctors that failed to Diagnose responsible as well.

    • Kitty says:

      Diva. That is very well said. Thank u for that Kitty

    • bejahblue says:

      I am a bit late to the “party” but just want to add that IMHO HMO insurance is the worst and “it” will always try to deny services and it will always support corporate interests not the interest or will of the people it is supposed to serve. I wish there was something I could do about this. It makes me sick. All I can do is ask that anyone who has the option, esp. when their overall health is compromised, to pay the additional amt. for either a PPO plan or high option so they have better coverage. Until I rule the world this is the best I can offer my dear people. Ha! Of course, prayer always helps even when we can not feel it.

      Bejah

  2. Anon says:

    The defendants use many dirty tricks to try to get our cases dismissed, this tactic is used often. Ms. Adams story is similar to my story. I had experienced two TVM revisions before a TV advertisements alerted me that I was potentially experiencing the adverse effects of TVM. My implanting surgeon was not talking. I knew that something was terribly wrong but never associated my problems to the mesh until the advertisements enumerated all of my problems, at this point, five years into my initial mesh implantation. Keep fighting Gerry……Keep Fighting!

  3. Bess says:

    Don’t accept anymore crap with doctors. Experienced this after implantation did not work with within a couple of weeks. And, beware of some lawyers if they can’t talk to you it means they are crap too.

  4. Anna says:

    Dear Jane Akre,
    Thank you for your recent response, it is appreciated.
    Have a new question that deals with
    Potts-Law firm..
    Has Potts Law made any settlement offers to pelvic-mesh litigants?
    Was told by mesh litigation that I would get pelvic mesh settlement offer letter in a few weeks on August 18th, 2017., will give reasonable time for contact from mesh litigation…
    Any information on these two questios?
    Thanks Much

    • Jane Akre says:

      Yes they have, and I’ve heard more than once that clients are being told take it or your will be dropped. Hearsay, admittedly, but I’ve heard it too many times to dismiss it.

      • Hopefully says:

        It isn’t hearsay on my end. I HAVE been told just that bc they said it takes too much money to work up a case for trial. This in itself tells me who they “work” for! Any lawyer worth their salt would make it wherethe mesh company had to pay lawyer fees so the injured would actually get their settlement!

    • bejahblue says:

      Pretty sad commentary that we have to ask Jane! She is like our mother goddess. Thank God for her. She is doing sacred work.

      Bejah

  5. Wondering says:

    Can a lawyer drop our case if our contact says we have a say in the settlement? What my Special master is saying is compensatory, & lawyer said other stuff is punitive, but what I have read in legal books, compensatort is actual damage that can be proven and proven problems in the body etc that are already an issue and will continue to be. Punitive/subjective are what MAY happen as a likelihood in these cases. How is a person supposed to live with what they want to give when. Our life is already in horrid and we hurt all the time!

    • Jane Akre says:

      Hi Wondering, that is a legal question but a law firm can likely drop you if they have a reason, imagined or not. You also have the option to report them to the state Bar Association. They are not supposed to disadvantage you, especially if it says you are to have a part in any settlement discussion…… would like to know which law firm is treating you this way.

      • Bejah Blue says:

        And they can imagine (Conjure up) anything and still the burden of proof is on you, on us. Right?

        Bejah

        PS I got calls from New Jersey recently. No message. I did not answer. I do not know anyone in New Jersy. JnJ Corp = New Jersey. Anyone else experience this?

        Bejah

    • bejahblue says:

      Darling, remember the saying, “Get it in writing”….I suspect that if it is not written it is not worth much no matter what we are talking about in the world of business and the law. Bejah

  6. Hopefully says:

    CoCouncil for the firm I am in AWK&O also told me if I refuse the amount, I will be dropped. However, my contract states I have a choice in the settlement. I was also told the published Bellwether trials were false amounts, as it is supposed to be confidential. I don’t understand how Bellwether gets millions and those of us with at least 5+ surgeries are expected to accept way less. Why are we responsible for our lawyer fees, too? In most other civil/criminal cases, the person or entity responsible has to pay court fees, any out of pocket expenses for the plantif and restitution. Yet we get crumbs and still have to pay the lawyer! I can never work again or have sex again! It isn’t just about my partner being pleased! Yet they want to only pay for surgery/compensatory damages, not punitive. Anything besides surgery they are calling punitive.
    I read on the difference and compensatory includes actual loss as well. Punitive is more of a possible outcome of loss or something likely to happen sort of thing.
    I would rather have nothing and the firm end up with nothing on my end than play a part in paying them half. Another 5% goes back to pay for expert witnesses and others employed by the court by the judge.
    Why, again, are the INJURED responsible for paying for the wrongs of the companies? Some of these women were in way early 20’s & have been deemed infertile or unable to carry bc of mesh! They won’t be able to have sex! Nothing! And a few hundred thousand divided by almost half is their “settlement.” Not to mention those who get a few measly thousand and settle bc they have lost everything and have to keep the lights on for their kids! This is a joke!

    • Jane Akre says:

      Hi Hopefully- I believe you have been misinformed if you were told the bellwether cases are confidential. We have public courts and the amounts are public. I’ve published all of the jury trial amounts so there is no confidentiality there. Whoever told you that doesnt understand that we have open courts in this country. I am disappointed to hear you were told you would be dropped. This story clearly says that that shouldn’t happen if it disadvantages you. Having said that, a law firm can come up with any pretext to drop you. Consider that if they do drop you, you owe them nothing! Then you are free to find other counsel. At trial, a plaintiff pays her law firm about 40% for representation…. for a settlement it should be less in my opinion,, 30% is a good plenty. Even though you get crumbs you still have to pay your law firm, how much is the question…. as little as possible if they never worked you up for trial in my opinion..

  7. bejahblue says:

    Maybe Hopefully and others can contact nearby law schools in the hope of seeking advice/counsel as it could benefit advanced law students and would be a beneficial community effort for the law school. Worth a try…Bejah

  8. Sharon says:

    I just had my fourth surgery from sling for SUI. This last one, damage and scar tissue was so severe, I now -have a surperpubic permant Catheter. I have to spend whatever years I have left with a urine bag to my leg or carrying it around. Original was 2008,, I then. 6 months later had a stroke. I did not, however start having pain and incontinence until late 2009 early 2010′ This company is saying the stroke is the reason for the incontinence. My lawyer called and said we may have to go to court. He called me last week and they are going to settle. He said it was not what I deserved but he was still fighting for more. I have been blessed with a good lawyer. He has kept me updated by phone, email and mail for all four years. Do not give up. I started four years ago and will not. quit, win, lose or draw.

  9. Janet says:

    I have Fleming, Nolan & Jez from Houston TX, the end of September 2 years ago I signed the pathetic settlement offer. I still have not received a penny. Two weeks ago I was told the letter stating how much I get after they subtract fees and anything else they want to pay would be sent that week. They lie to me over and over. I don’t know what to do at this point. Who do I call to report that they aren’t releasing my money?

  10. Janet M says:

    I have Fleming, Nolan & Jez from Houston TX, the end of September 2 years ago I signed the pathetic settlement offer. I still have not received a penny. Two weeks ago I was told the letter stating how much I get after they subtract fees and anything else they want to pay would be sent that week. They lie to me over and over. I don’t know what to do at this point. Who do I call to report that they aren’t releasing my money?

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