A Pennsylvania woman didn’t connect the dots between a painful, pinching sensation and an Ethicon hernia mesh, even though her surgeon told her it “didn’t work” in 2008, so the clock didn’t start ticking on when she could sue the company, her attorney told a Pittsburgh federal judge.
As a layperson, Nancy Yelinek didn’t realize she’d even had a hernia mesh put in five months earlier, let alone that its alleged defect was the cause of her injury after a different surgeon removed it and told her it did not work, said Benjamin Kelly of Friday & Cox, representing Yelinek.
The hearing focused on whether Ethicon could beat the case on summary judgment, based on its argument that the two-year statute of limitations started running with Yelinek’s mesh removal surgery in 2008. Yelinek’s attorney said a jury should decide whether the time limit had been paused by the discovery rule — that she hadn’t been able to connect her pain to the specific product.
Yelinek had her bladder surgically removed, and had an Ethicon hernia mesh implanted in July 2008 to repair a hernia that had cropped up. But the hernia came back, and a different surgeon had to repair it and remove the mesh in December 2008.
Upon removing the mesh, the second surgeon told Yelinek that it had “failed,” it “didn’t work,” and it had become “balled up” — which meant she should’ve known it was defective and the cause of the pinching and painful sensations she’d reported earlier, said Frederick W. Bode III of Dickie McCamey & Chilcote, representing Ethicon.
Kelly said that Yelinek didn’t realize her prior surgeon had implanted the mesh and that it should be up to a jury to weigh the testimony in the case and decide whether her conversations with the second surgeon were enough to put her on notice and start the countdown for her claim — or whether it was the TV commercial years later. As a layperson without any medical expertise, she wouldn’t be expected to know how much of her discomfort was attributable to her prior surgeries, he said.