Sanchez v. Bos. Scientific Corp.
| Decision Date | 17 January 2014 |
| Docket Number | CIVIL ACTION NO. 2:12-cv-05762 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | ROSEANNE SANCHEZ, et al., Plaintiffs, v. BOSTON SCIENTIFIC CORPORATION, Defendant. |
(Boston Scientific's Motion for Summary Judgment Based on the Statute of Limitations)
Pending before the court is Boston Scientific Corporation's Motion for Summary Judgment Based on the Statute of Limitations [Docket 30]. Relying on California's two-year statute of limitations, Boston Scientific argues that Ms. Sanchez's claim is time-barred. In its supporting memorandum, Boston Scientific states that Ms. Sanchez underwent four revision surgeries more than two years before she filed this action. Boston Scientific claims these surgeries put Ms. Sanchez on actual or inquiry notice of her claim more than two years before filing suit. For the reasons stated below, Boston Scientific's motion for summary judgment [Docket 30] is DENIED.
This case is one of several thousand assigned to me by the Judicial Panel on Multidistrict Litigation and one of four (now three) bellwether cases set for trial pursuant to Pretrial Order # 54 [Docket 22]. These cases involve the use of transvaginal surgical mesh to treat pelvic organ prolapse ("POP") and stress urinary incontinence ("SUI").
On January 13, 2010, Dr. Kerri Wiltchik, M.D., implanted Ms. Sanchez with a Pinnacle Pelvic Floor Repair Kit and an Advantage Transvaginal Mid-Urethal Sling System. (See Boston Scientific Corp.'s Mem. in Supp. of its Mot. for Summ. J. based on the Statute of Limitations, Exhibit A [Docket 30-1], at 85-87; Exhibit B [Docket 30-2], at 3).1 The implantation surgery took place at Marian Medical Center in Santa Maria, California. (See Exhibit A [Docket 30-1], at 85). The products were implanted to treat Ms. Sanchez's SUI, POP, and cystocele. (Exhibit C [Docket 30-3], at 4).
According to Ms. Sanchez's plaintiff fact sheet, she first saw a health care provider for symptoms related to the mesh in February 2010. (Exhibit C [Docket 30-3], at 6). In addition, Ms. Sanchez's deposition testimony indicated that she was experiencing a pink-tinged discharge every day since the implantation surgery. (Exhibit E [Docket 30-5], Deposition of Roseanne Sanchez, at 21:1-15). Between her implantation surgery and her first revision surgery, Ms. Sanchez complained of vaginal discharge, itching, and abdominal cramping. (Exhibit A [Docket 30-1], at 50, 52).
On April 9, 2010, approximately four months after the implantation surgery, Ms. Sanchez told Dr. Wiltchik she was experiencing "abnormal vag[inal] bleeding scant with a pink discharge which causes her to wear a daily panty liner" and also felt "something scratchy like a stitch in her vagina." (Exhibit A [Docket 30-1], at 46). Dr. Wiltchik diagnosed Ms. Sanchez as having "complications due to genitourinary device, graft, and implant." Id. Dr. Wiltchik excised a small portion of the mesh and applied silver nitrate to the area. (Exhibit D [Docket 30-4], Deposition of Dr. Kerri Wiltchik, at 50:1-3). Dr. Wiltchik prescribed Vagifem tablets, which would help grow the mucosa over the exposed mesh areas and promote healing. (Id. at 185-86:24-3). Ms. Sanchez'smedical records for that day indicate she understood "that a few treatments may be required before the exposed mesh areas are completely covered and her symptoms resolve." (Exhibit A [Docket 30-1], at 46).
On May 3, 2010 Dr. Wiltchik performed a second revision surgery. (Exhibit A [Docket 30-1], at 44). Dr. Wiltchik again concluded that Ms. Sanchez was suffering from "complications due to genitourinary device, graft, and implant," specifically, exposed mesh from the Pinnacle product. (Id.; Exhibit D [Docket 30-4], Deposition of Dr. Kerri Wiltchik, at 49:19-22).
By her May 20, 2010, visit with Dr. Wiltchik, Ms. Sanchez testified that she was experiencing pelvic cramping and discomfort, which she believed were related to vaginal infections, as well as incontinence symptoms. (Exhibit E [Docket 30-5], Deposition of Roseanne Sanchez, at 225:11-15). Dr. Wiltchik again assessed that Ms. Sanchez's symptoms stemmed from complications with the pelvic implants. (Exhibit A [Docket 30-1], at 43). Dr. Wiltchik prescribed Metrogel-Vaginal gel, which Ms. Sanchez testified did not improve her symptoms. (Id. at 43; Exhibit E [Docket 30-5], Deposition of Roseanne Sanchez, at 224:14-17).
On June 14, 2010, Ms. Sanchez again complained to Dr. Wiltchik that she was experiencing copious amounts of pink-tinged discharge. (Exhibit A [Docket 30-1], at 41). According to Ms. Sanchez's medical records, "her discharge was thought to be due to her exposed mesh." (Id.). After a lengthy discussion with Dr. Wiltchik, Ms. Sanchez agreed to undergo another revision surgery, this time under general anesthesia. (Id. at 42). Ms. Sanchez understood that the procedure would help stop the mesh from poking through her vaginal wall. (Exhibit E [Docket 30-5], Deposition of Roseanne Sanchez, at 230:3-6). On June 18, 2010, Dr. Wiltchik removed a large portion of exposed mesh. (Exhibit A [Docket 30-1], at 80). This was Ms. Sanchez's third revision surgery.
Despite these three revisions of the mesh and other treatments, Ms. Sanchez's symptoms did not improve. (See id. at 39, 35). On September 1, 2010, Ms. Sanchez reported to Dr. Wiltchik that she was experiencing abnormal vaginal bleeding, pink-tinged discharge, and discomfort with intercourse. (Id. at 35). The medical record for this date indicates Ms. Sanchez understood that "her symptoms are due to a small amount of exposed mesh." (Id.). For the fourth time, Dr. Wiltchik completed an in-office excision of the exposed mesh. (Id.). Later, on September 17, 2010, Ms. Sanchez agreed to undergo another revision surgery under anesthesia because her symptoms had not resolved. (Id. at 33).
According to the plaintiffs, during these medical visits, Dr. Wiltchik never told Ms. Sanchez that her symptoms were related to a defect in the mesh. . Ms. Sanchez testified that during one of her medical appointments, Dr. Wiltchik said, "[f]or one reason or another . . . the skin was not healing over the mesh." (Exhibit E [Docket 30-5], Deposition of Roseanne Sanchez, at 221:11-13). According to Dr. Wiltchik's progress notes on May 11, 2011, she "discussed at length patient's reaction to mesh and propensity for body to expel mesh." .2 Dr. Wiltchik told Ms. Sanchez she had "no idea why this was happening and for some reason [Ms. Sanchez's] body did not like" the mesh products. (Id. at 191:19-21). In addition, Dr. Wiltchik testified that she has never attributed the cause of Ms. Sanchez's symptoms to a defect in the mesh. (See id. at 223:17-21; 224:14-16, 23-25; 225:1-11).
Ms. Sanchez's plaintiff fact sheet indicates she became aware that her injuries were related to a defect in the mesh implants in August 2011. (Exhibit C [Docket 30-3], at 6). According to the plaintiffs, Ms. Sanchez saw an advertisement for transvaginal mesh litigation on television, which caused her to seek representation. (See Exhibit 7 [Docket 32-7], at 28:5-16). However, Ms. Sanchez's deposition testimony reveals that she did not know the month or the year she saw the advertisement. (Exhibit A [Docket 34-1], at 36:10-16). On September 21, 2012, Ms. Sanchez directly filed suit in MDL 2326 pursuant to Pretrial Order # 12 [Docket 176].3
In multidistrict litigation cases, the choice-of-law determination for pre-trial motions hinges upon whether federal or state law governs. In re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 97 F.3d 1050, 1055 (8th Cir. 1996) (internal citations omitted); see Toll Bros., Inc. v. Dryvit Sys., Inc., 432 F.3d 564, 568 n. 4 (4th Cir. 2005) (); Bradley v. United States, 161 F.3d 777, 782 n. 4 (4th Cir. 1998); see also 15 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3866 (3d ed. 2009).
This case is based on diversity jurisdiction. Federal law thus controls procedural issues and state law controls substantive issues. Dixon v. Edwards, 290 F.3d 690, 710 (4th Cir. 2002). The standard for summary judgment is procedural; therefore, the federal standard applies. Gen.Accident Fire & Life Assurance Co. v. Akzona, Inc., 622 F.2d 90, 93 n. 5 (4th Cir. 1980). In determining which state substantive law governs this dispute, I must first identify which choice-of-law rules to follow.
A majority of cases in an MDL are transferred from other forums pursuant to 28 U.S.C. § 1407. See William B. Rubenstein, Newberg on Class Actions § 10:29 (5th ed. 2013). With respect to these transferred cases, courts routinely apply the choice-of-law of the originating forum. See, e.g., In re Temporomandibular (TMJ) Joint Implants Prods. Liab. Litig., 97 F.3d at 1055; see also Chang v. Baxter Healthcare Corp., 599 F.3d 728, 732 (7th Cir. 2010) ().
However, plaintiffs may bypass the transfer process by directly filing into the MDL. See ...
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