PER CURIAM.
Brenda and Rex Robinson
Brenda Robinson, a Utah resident, sought treatment from Dr. Clayton Wilde, an OB/GYN, for urinary stress incontinence and urinary tract infections. In June 2006, Dr. Wilde recommended implantation of a transvaginal surgical mesh to alleviate her symptoms. A transvaginal surgical mesh implant treats medical conditions of the female pelvis, most commonly pelvic organ prolapse and stress urinary incontinence. The mesh is implanted into the anterior vaginal wall to help restore a woman's regular anatomy. Robinson consented to the procedure, and Dr. Wilde implanted her with Boston Scientific's Obtryx sling in Salt Lake City.
During a post-surgical examination, Dr. Wilde instructed Robinson that she should "avoid intercourse for another month and try to make sure that she doesn't get any pressure on her anterior vaginal wall and promote an erosion." (J.A. 611). At another post-surgical visit, Dr. Wilde noted that he discussed possible mesh erosion "most likely related to intercourse." (J.A. 611).
Several months later, in January 2007, Robinson returned due to continued urinary problems as well as pain during sexual intercourse (dyspareunia). During a visit on April 25, 2007, Dr. Wilde noted some erosion of the tape and Robinson recalled Dr. Wilde telling her that the mesh was "hanging down a little." (J.A. 318). Dr. Wilde recommended trimming the mesh and, in May 2007, conducted a revision surgery to remove the eroded portion of the mesh. In his deposition, Dr. Wilde expressed his belief that in cases where the mesh did not work as hoped, the erosion was:
(J.A. 595).
Following the revision surgery, Robinson continued to seek treatment for symptoms, including bleeding, dyspareunia, urinary tract infections, and incontinence. Robinson's husband likewise explained that "it got worse again as time went on," (J.A. 193), and that the mesh "felt sharper and sharper," (J.A. 195).
In February 2012, almost five years after her revision surgery, Robinson saw a television advertisement about complications from transvaginal surgical mesh. In response, Robinson sought a second opinion about her mesh and eventually had the entire mesh extracted. Shortly after the extraction surgery, Robinson commenced this action for actual and punitive damages against Boston Scientific in the United States District Court for the District of Utah for negligence, strict liability design defect, manufacturing defect, failure to warn, breach of express and implied warranties under the Utah Product Liability Act (UPLA). Her husband brought a derivative action for loss of consortium. The case was transferred to the Multi-District Litigation (MDL) in the Southern District of West Virginia for pretrial proceedings.
Following discovery, Boston Scientific moved for summary judgment, arguing that all of Robinson's claims are barred by Utah's two-year statute of limitations for defective products. The district court granted that motion, concluding that the two-year limitations period began to run on April 25, 2007, when Dr. Wilde told Robinson that the mesh was hanging down and causing the dyspareunia.
We review the grant of summary judgment de novo.
U.C.A. § 78B-6-706 (2008).
Under Utah law, "all that is required to trigger the statute of limitations is sufficient information to put plaintiffs on notice to make further inquiry if they harbor doubts or questions."
Robinson argues that the district court misconstrued Utah law by failing to require Boston Scientific to show that she knew the mesh was the cause-in-fact of her injury. Robinson also argues that, even under the "possible causal relation" standard employed by the district court, she has raised a genuine issue of material fact as to whether she should have known, on April 25, 2007, that the mesh was a possible cause of her harm.
For purposes of this appeal, we will accept Robinson's argument that, under Utah law, "possible causal relationship" refers to the cause-in-fact. Even accepting Robinson's view of Utah law, however, we conclude that her claims are untimely. As the nonmoving party at summary judgment, Robinson is entitled to all reasonable inferences in her favor.
However, Dr. Wilde also told Robinson that the revision surgery would alleviate these symptoms. Despite this assurance, after Dr. Wilde performed the revision surgery in May 2007 Robinson continued to have the same symptoms. Specifically, both Robinson and her husband continued to have dyspareunia and her husband could still feel the mesh. At this point, Robinson was on inquiry notice of a possible causal relationship between the mesh and her harm. In other words, when the revision surgery failed to correct her symptoms, Robinson had "sufficient information" to put her "on notice to make further inquiry" about the cause-in-fact of her harm.
At the very least, Robinson had sufficient information by the end of 2007 when the revision surgery failed to correct her symptoms. By that point, Robinson was on inquiry notice that the mesh could be the cause-in-fact of her harm and was required to perform due diligence to determine if it was the actual cause.
For the foregoing reasons, the judgment of the district court is affirmed.