Porterfield v. Ethicon, Inc.

• Decision Date: 18 August 1999
• Docket Number: PLAINTIFFS-APPELLANTS,No. 98-51114,DEFENDANT-APPELLEE,98-51114
• Citation: 183 F.3d 464
• Parties: (5th Cir. 1999) ANITA PORTERFIELD AND JOHN PORTERFIELD,, v. ETHICON, INC.,Summary Calendar
• Court: U.S. Court of Appeals — Fifth Circuit

Page 464

183 F.3d 464 (5th Cir. 1999)

ANITA PORTERFIELD AND JOHN PORTERFIELD, PLAINTIFFS-APPELLANTS, v. ETHICON, INC., DEFENDANT-APPELLEE.

No. 98-51114

Summary Calendar

U.S. Court of Appeals, Fifth Circuit

August 18, 1999

[Copyrighted Material Omitted] Appeal from the United States District Court for the Western District of Texas

Before Davis, DUHEE, and Parker, Circuit Judges.

The opinion of the court was delivered by: Per Curiam

Anita and John Porterfield filed this lawsuit against Ethicon, the manufacturer of a mesh used to surgically repair Anita Porterfield's ventral hernia, for product liability, negligence, breach of warranty, fraud, and violations of the Texas Deceptive Trade Practices Act. The district court granted summary judgment in favor of Ethicon. Porterfields appeal. We affirm.

I. BACKGROUND AND PROCEEDINGS

On November 19, 1993, Anita Porterfield underwent ventral hernia repair surgery during which Dr. George Mimari implanted Prolene polypropylene mesh in her abdomen to repair and/or reinforce her abdominal wall. In her deposition, Porterfield acknowledged that she began having problems with the mesh within a week or two following the hernia surgery and that she "knew the problems were related to the mesh." In particular, she had experienced a number of problems, including severe hypertension, pain and tenderness in her lower abdomen, polyarthritis, fever, arthralgias, and chronic fatigue.

Shortly thereafter, Porterfield conducted research to determine if Prolene mesh could cause problems. Through her research, she learned that mesh can cause infection and migrate and become imbedded in other organs. In February 1994, Porterfield asked her surgeon, Dr. Mimari, whether her symptoms could be related to the mesh. On April 14, 1994, Porterfield wrote a letter to Dr. John P. Huff, advising him that she was experiencing abdominal pain around the area of the mesh implant. In this letter, Porterfield states that she and her primary physician, Dr. De Noia, suspected that her health problems were related to her hernia surgery.

On September 11, 1995, Porterfield underwent surgery to remove the mesh. During the surgery, Porterfield's surgeons had to remove part of her liver and stomach because the mesh had adhered to these organs. Following surgery, Porterfield suffered from an abdominal wall infection and was hospitalized from September 20 to September 25, 1995. The Porterfields filed this lawsuit on August 30, 1996.

II. DISCUSSION

On appeal, Porterfield raises two points of error: (1) the district court erred in granting summary judgment on the ground that her claims were barred by the statute of limitations; and (2) the district court misapplied the learned intermediary doctrine in dismissing her implied warranty of merchantability claim as a matter of law. We conclude that Porterfield's claims were barred by the statute of limitations and that her implied warranty claim failed as a matter of law.

Ethicon moved for summary judgment on the basis, inter alia, that Porterfield's claims were barred by the statute of limitations. The district court, accepting the Magistrate Judge's Recommendation, determined that Porterfield's claims accrued on April 14, 1994. Because this lawsuit was not filed until August 30, 1996, the district court ruled that Porterfield's claims were barred by the two-year statute of limitations. This Court reviews a grant of summary judgment de novo, applying the same standards as applied by a district court. See Winters v. Diamond Shamrock Chemical Co., 149 F.3d 387, 402 (5th Cir. 1998).

The parties do not contest the application of Texas substantive law to this matter. In Texas, a two-year statute of limitations governs personal injury actions. See Tex. Civ. Prac. & Rem. Code Ann. ¶¶ 16.003(a) (Vernon 1986). A personal injury action must be filed within two years from the date the cause of action accrues. See Winters, 149 F.3d at 402. A cause of action accrues when the legal wrong is completed and the plaintiff is entitled to commence suit, even if the party is unaware of the wrong. See id.

Texas courts have adopted a discovery rule that tolls the statute of limitations until the plaintiff discovers, or through the exercise of reasonable care and diligence should have discovered, the nature of the injury. See Winters, 149 F.3d at 403. Discovery does not necessarily mean "actual knowledge of the particulars of a cause of action." Vaught v. Showa Denko K.K., 107 F.3d 1137, 1140 (5th Cir. 1997). Instead, the question is whether the plaintiff has "knowledge of facts which would cause a reasonable person to diligently make inquiry to determine his or her legal rights." Vaught, 107 F.3d at 1141-42.

The evidence in the record establishes that Anita Porterfield had knowledge of facts regarding the nature of her injury more than two years before the lawsuit was filed. Within weeks of her November 1993 surgery, Porterfield stated that she "knew that the problems were related to the mesh." In response to these problems, Porterfield conducted her own research to document a possible connection between her symptoms and the mesh and, in fact, she located information that suggested a connection. On April 14, 1994, Porterfield wrote to Dr. Huff stating: "[i]t is my concern, and also of my primary care physician, Dr. De Noia, that the problems that I have experienced since my hernia surgery in November are an inflammatory response to the surgical mesh implant." Porterfield was aware of the nature of her injury soon after her first surgery in November 1993 and, at the latest, by April 14, 1994.

Porterfield argues that she could not reasonably have discovered her cause of action until she had surgery on September...