Elbert P. Tuttle U.S. Court of Appeals Building Rebecca Breyer

The U.S. Court of Appeals for the Eleventh Circuit, ruling in a pelvic mesh case, has certified an “unresolved question of Texas law” to the Texas Supreme Court involving when the statute of limitations period accrues in product liability lawsuits.

The Sept. 20 ruling comes in a case that originated in multidistrict litigation in Georgia, where U.S. District Judge Clay Land granted summary judgment last year after concluding that the plaintiff’s claims were barred by the two-year statute of limitations under Texas law. Ann Marie Bergin, a Texas resident, sued Mentor Worldwide LLC in 2013 after she suffered vaginal pain and discharge allegedly due to its defective ObTape mesh device, which is surgically implanted in women to treat urinary incontinence.

Bergin, who had the device implanted in 2005, argued that she wasn’t aware of the product’s defects until she saw a TV ad in 2011. But Mentor, a subsidiary of Johnson & Johnson, has insisted that she knew there was a connection between her problems and the device a year after it was implanted, when her doctor removed infected mesh from her body.

The Eleventh Circuit, in a per curiam decision, directed the Texas Supreme Court to clarify whether, under the state’s “discovery rule,” a plaintiff is required to have knowledge of a manufacturer’s wrongdoing before her claims in a product liability case can accrue.

“To resolve this appeal, we must decide which of the above positions is correct, but that answer depends on an unresolved question of Texas law,” the panel wrote. “Because the resolution of this appeal, and potentially many other cases involved in pending multi-district actions, turns on a material, unsettled state-law question, we respectfully seek the assistance and guidance of the Texas Supreme Court in answering this question.”

Beasley, Allen, Crow, Methvin, Portis & Miles principal Leigh O’Dell, who represent Bergin, said the decision by the Texas Supreme Court could have implications beyond her client’s case.

“To the degree there’s ambiguity in the law, and they clarify that, it’s a case that will have an effect,” she said. “It arises in a mesh case, but the question they’ve asked is pretty broad and could be applied in other medical device cases, in particular.”

Mentor attorney John Lewis, a partner at Tucker Ellis in Cleveland, did not respond to a request for comment.

The ObTape, removed from the market in 2008, is among several surgical mesh devices made by various manufacturers that have been linked to infections, pain and scarring. The ObTape multidistrict litigation once totaled more than 860 cases, but most have since settled.

Last year, Land criticized plaintiffs’ attorneys for bringing meritless cases against Mentor—a complaint often raised generally by the defense bar in multidistrict litigation.

But in Bergin’s appeal brief, O’Dell pointed out that U.S. District Judge Joseph Goodwin, who is overseeing about 70,000 lawsuits involving other mesh devices in the Southern District of West Virginia, took a different stance than Land did. He found in three separate cases over different mesh devices on summary judgment “that Texas plaintiffs’ claims accrue upon discovery of a defendant’s wrongful act and the resulting injury.”

The Eleventh Circuit cited Goodwin’s rulings, as well as those by the U.S. Court of Appeals for the Fifth Circuit and several Texas state courts, including the Texas Supreme Court itself, in finding there were inconsistencies and that the law needed to be clarified.

“This present litigation is a prime example of that inconsistency,” the panel wrote.