September 18, 2020

The United States Court of Appeals for the Sixth Circuit (“Federal Appellate Court”), in its opinion filed on August 13, 2020, stated, “Karla Parton appeals the district court’s dismissal of her product-liability suit against Johnson & Johnson and Ethicon, which the court held was barred by Tennessee’s statue of repose. We reverse.”

The Underlying Facts

The plaintiff (“Parton”) had alleged in her pelvic mesh lawsuit that in 2002, she developed an uncomfortable condition known as pelvic organ prolapse, which caused her uterus to push down into her vagina. By 2008, the prolapse had pushed Parton’s cervix out of her vagina. She also developed urinary incontinence, generalized pelvic pain, and pain during sexual intercourse.

To remedy these conditions, Dr. Penny Knight implanted Parton with a Prolift brand vaginal mesh for her prolapse and with a second type of mesh for incontinence. To implant the Prolift, a surgeon placed a piece of polypropylene mesh (made by Johnson & Johnson’s subsidiary Ethicon) against the vaginal wall, and anchored the mesh in the hip, pelvis, thigh, or groin. When the implant was functioning properly, the patient’s tissue would grow around the mesh to support the collapsing organs.

Parton’s pelvic pain returned within a year of surgery. In 2009, she saw a pain specialist for her back, legs, neck, midsection, and vagina. In 2010, she again saw Dr. Knight for vaginal pain. In 2014, she saw a different treater for problems with her bladder. On both occasions Parton had a pelvic exam, and both times the treaters found nothing wrong with Parton’s mesh devices.

Parton’s symptoms got worse in 2017. In addition to pelvic pain, she had severe pain during intercourse, vaginal odor, and intermittent bleeding. On one occasion, her partner “felt something sharp . . . during sexual intercourse.” Parton told a nurse that she could “feel the mesh coming through.” At an appointment in January 2018, Parton’s gynecologist could see that part of her Prolift mesh had become exposed through her vaginal tissue.

In April 2018, a surgeon partially removed the Prolift mesh, finding that it had “rolled and bunched on itself.” The problems with the mesh, a doctor said, had caused Parton’s pelvic pain, vaginal pain, and painful intercourse, all of which may be permanent.

Parton brought her lawsuit against Johnson & Johnson and Ethicon (“the defendants”) in September 2018, asserting negligence and product-liability claims under Tennessee law. The defendants thereafter moved for summary judgment under Tennessee’s statute of repose, which (among other things) bars product-liability suits filed more than six years after the date of the “injury” giving rise to the suit. Tenn. Code. Ann. §§ 29-28-102(6), 29-28-103(a). The district court granted summary judgment to the defendants, holding as a matter of law that Parton’s injuries from the Prolift mesh arose more than six years before she filed suit. Parton appealed.

Federal Appellate Court Opinion

The Federal Appellate Court stated that Parton’s lawsuit against the defendants is barred only if her injuries from the Prolift mesh arose before September 2012. The defendants argued that Parton herself testified that she had pelvic pain as early as 2009, which was about a year after the mesh was implanted.

The Federal Appellate Court stated that Parton’s testimony establishes only that she had pain after the implant—not that her pain was caused by the mesh. “Indeed, Parton had pain before the implant—that is why she had the surgery—and afterward. Hence this testimony, on its face at least, does not show that any injuries “caused by” the mesh’s allegedly “defective or unreasonably dangerous condition” were present before 2012. See Tenn. Code. Ann. § 29-28-103(a).”

The Federal Appellate Court held: “Parton was competent to testify only about whether she experienced pain, not about whether it was caused by a medical device implanted a year before. Parton’s testimony therefore does not remotely establish, as a matter of law, that her pain in 2009 was caused by the Prolift mesh. And since Parton’s testimony was the sole basis on which the defendants sought and the district court granted summary judgment, that conclusion alone is reason enough for reversal here.”

Source Parton v. Johnson & Johnson and Ethicon, File Name: 20a0479n.06, No. 19-6409.

If you or a family member were implanted with vaginal mesh or other surgical mesh and suffered complications, injuries, or chronic pain afterwards, you should find a mesh claim lawyer in your U.S. state who may investigate your vaginal mesh claim for you and represent you or your family member in a claim against the manufacturer, distributor, and/or supplier of the vaginal mesh, if appropriate.

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