982 F.3d 989
6th Cir.2020Background
- In 2003 Clabo received a TVT transvaginal mesh sling manufactured by Johnson & Johnson/Ethicon to treat pelvic organ prolapse and urinary incontinence.
- By April 2006 the mesh had eroded; she underwent surgery to remove the eroded mesh and a month later had a replacement sling implanted; she reported pelvic pain, scarring, and dyspareunia beginning by 2006.
- In 2011 she had another surgery to remove/repair portions of the sling due to continued erosion and symptoms.
- In July 2012 she says a physician-friend first advised her that the mesh likely caused her persistent problems; she filed suit on May 6, 2013 under the Tennessee Products Liability Act (TPLA).
- Defendants moved for summary judgment asserting Tennessee’s six-year statute of repose (Tenn. Code Ann. § 29-28-103(a)) barred the suit; the district court found the date of injury was April 2006, granted summary judgment, denied leave to amend as futile, and struck a supplemental brief for violating the local rule; the Sixth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Date of "date of injury" for Tennessee statute of repose | Injury did not occur until 2011 (or at the earliest 2012 when she learned mesh was cause) | Injury occurred in 2006 when mesh erosion necessitated removal/replacement | Court held "date of injury" is when plaintiff was first physically harmed by the product; here April 2006; claims time-barred |
| Applicability of discovery rule to toll statute of repose | Discovery rule should delay accrual until she discovered mesh was likely cause (2012) | Discovery rule does not toll Tennessee statute of repose | Court held Tennessee courts do not apply discovery rule to statute of repose; discovery rule is inapplicable |
| Motion to amend complaint | Amendment would add claims arising from same 2006 facts and would avoid repose bar | Amendment is futile because claims are conclusively time-barred | Denial of leave to amend affirmed as amendment would be futile |
| Striking supplemental brief under local rule | She requested permission and therefore filing should stand | She did not obtain court approval; brief violated E.D. Tenn. L.R. 7.1(d) | Striking the brief was not an abuse of discretion; district court never approved filing |
Key Cases Cited
- Sharp v. Richardson, 937 S.W.2d 846 (Tenn. 1996) (explains TPLA legislative intent to limit suit timing for actuarial/insurance concerns)
- Penley v. Honda Motor Co., 31 S.W.3d 181 (Tenn. 2000) (recognizes legislature’s choice of a specific limitations period may produce harsh results)
- Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509 (Tenn. 2005) (holds discovery rule does not toll a statute of repose)
- Parton v. Johnson & Johnson, [citation="821 F. App'x 601"] (6th Cir. 2020) (distinguished; earlier pain alone did not compel finding injury outside repose period)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment requires nonmovant to show an essential element on which it will bear the burden at trial)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (standard for determining genuine dispute at summary judgment)
- Cataldo v. U.S. Steel Corp., 676 F.3d 542 (6th Cir. 2012) (denial of leave to amend permissible when complaint affirmatively shows claims are time-barred)