The Sixth Circuit revived a suit alleging a Johnson & Johnson unit’s pelvic mesh came loose after implantation and caused a woman’s injuries, saying the claims could be tolled by Kentucky’s discovery rules.
The majority partially reversed a summary judgment that cleared Ethicon Inc., a subsidiary of Johnson & Johnson, from claims by Jenesta Cutter — finding that her negligence, gross negligence, strict liability defective product and defective design claims, as well as her husband’s loss of consortium claims, could go forward — but affirmed the dismissal of her failure to warn claims.
The suit stems from a pelvic mesh made by Ethicon that Cutter had implanted in 2006. She soon began to experience pain and other symptoms, which her doctor determined were caused by the mesh coming loose, leading to two corrective surgeries and a third surgery to remove the mesh.
Cutter sued in May 2012, claiming negligence, defects and misrepresentation on the part of Ethicon, and Ethicon moved to dismiss and for summary judgment on all counts. In January 2020, Chief U.S. District Judge Danny C. Reeves dismissed all but four claims from the suit and later granted final summary judgment on the remaining claims in August of that year.
The district court had dismissed the negligence, defect and loss of consortium claims as time-barred under Kentucky’s one-year statute of limitations, and the Cutters challenged that ruling, arguing the earliest Jenesta Cutter discovered the mesh was the problem was in June 2011, not March of that year.
The panel majority agreed, saying the discovery rule allows latent injuries like Cutter’s — where the cause of the injury is not immediately apparent — to be tolled until the plaintiff discovers that cause.
Cutter exercised due diligence by repeatedly visiting physicians after she began to experience pain and injuries after the mesh was implanted in 2006, but those physicians at first told her the mesh was not the problem, and, taking the record in Cutter’s favor, it wasn’t until June 2011 that Cutter believed the mesh could have been the cause of her injuries.