By Emily Cox
The Eleventh Circuit revived a woman’s claims Tuesday that a defective pelvic mesh sling caused egregious injuries, ruling that her injury report did not toll the statute of limitations as she was not aware of the mesh’s significant design defects.
In its opinion, the panel determined that Patricia Perryman’s claims could go before a jury despite filing her lawsuit more than seven years after her Mentor Worldwide LLC ObTape transobturator vaginal mesh sling removal. The panel determined that it was questionable when she noticed her injuries as the symptoms that precipitated the removal were in-line with the side effects that could happen if the product worked as intended.
“Plaintiff never suspected that ObTape was defective or that a specific defect in her ObTape implant had caused her injuries until she saw a commercial in 2013 that reported the existence of vaginal sling defects,” wrote Circuit Court Judge Julie Carnes for the panel.
Perryman’s lawsuit is part of a Mentor MDL over the defective vaginal mesh sling implant. The plaintiffs allege that Mentor did not properly test the device before introducing it into the stream of commerce in 2003. Patients claim the defective device caused erosion of internal bodily tissues, causing complications that included serious infections and pain that necessitated further invasive procedures.
Pelvic Mesh Sling Allegations
The opinion indicates that Florida resident Perryman first received the ObTape mesh sling in May 2005. According to her allegations, her physician warned her that the surgery carried risks of pain, infection, and tenderness, and that her body could outright reject the implant.
Following the surgery, she reported pain, infection, and mesh protrusion. Consequently, she underwent surgery to remove the mesh sling in February 2006. She filed her claim in September 2013, saying she realized her injuries were not merely a side effect of the mesh or the procedure after seeing a television commercial regarding ObTape’s harmful defects.
Mento moved for summary judgement, saying Florida’s four-year statute of limitations had tolled when she had the implant removed in 2006. The district court agreed with the medical device company.
However, the Eleventh Circuit disagreed, ruling that it was a question for the jury to decide when she first reasonably became aware of the mesh implant’s defects.
The panel cited a 2017 Eleventh Circuit opinion on one of the many defective vaginal mesh lawsuits against Boston Scientific Corp., saying that, under Florida case law, the time limit is not tolled until the plaintiff has notice of “an injury distinct in some way from conditions naturally to be expected from the plaintiff’s condition.”
In this case, Perryman’s symptoms were not out-of-line from what her physicians told her could happen after surgery. And, by her account, she blamed the symptoms on an infection or allergic reaction to the implant at the time.
“In other words, such symptoms could arise from a nondefective mesh that had been implanted through surgery that was properly performed,” Judge Carnes said.