J&J, Ethicon Beat Pa. Woman’s Untimely Hernia Mesh Suit

A Pennsylvania federal judge handed Johnson & Johnson and Ethicon Inc. a win in a woman’s lawsuit alleging that she was injured by the companies’ pelvic mesh implants that aim to treat hernias, finding that the patient’s lawsuit is untimely under state law.

Nancy Yelinek alleged in her October 2017 suit that her mesh implant manufactured by Johnson & Johnson and its subsidiary Ethicon led to pain, discomfort and other complications.

Senior U.S. District Judge Nora Barry Fischer ruled that Yelinek waited too long to sue over her alleged injuries given that Yelinek’s doctor who removed the mesh implant told her in 2008 that the mesh “didn’t work.”

The judge said Yelinek received notice for her cause of action once her doctor, Brent Angott, communicated this news on Dec. 12, 2008. The judge concluded that Yelinek’s right to sue expired six years later “under the most generous limitations period Pennsylvania provides.”

Yelinek had her bladder surgically removed and an Ethicon hernia mesh implanted in July 2008 to repair a hernia. But the hernia came back, and a different surgeon had to repair it and remove the mesh in December 2008.

Yelinek did not sue her doctors, and she didn’t sue Ethicon until 2017, some time after seeing a law firm’s television commercial about pelvic mesh mass tort litigation. Her case had originally been filed as part of a pelvic mesh multidistrict litigation but was transferred out because it involved a different product.

Ethicon moved for summary judgment in May, arguing that the two-year statute of limitations started running with Yelinek’s mesh removal surgery in 2008.

Pennsylvania law maintains a two-year limitation period to sue for matters related to tortious conduct, while all other civil actions “face a six-year statute of limitations,”.

During a September video hearing, counsel for Yelinek said that as a layperson, she didn’t realize she had 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.

Yelinek’s attorney continued 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 the TV commercial years later constituted that notice. As a layperson without any medical expertise, she would not be expected to know how much of her discomfort was attributable to her previous operations.

But Judge Fischer ruled in favor of J&J and Ethicon, finding that Yelinek’s claims are time-barred under Pennsylvania law since the “clock began to run” once she had the mesh removed.

LAW360: https://www.law360.com/articles/1432602/j-j-ethicon-beat-pa-woman-s-untimely-hernia-mesh-suit

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