Stark v. Johnson & Johnson

Dist. Ct. erred in granting defendants’ motion for summary judgment in plaintiff’s product liability action, alleging that defendants’ pelvic mesh device was defective, where defendants asserted that said action was filed beyond applicable two-year limitations period. Record showed that: (1) plaintiff’s initial surgery to implant said device occurred in 2007; (2) shortly after initial surgery, plaintiff reported continued urinary incontinence, leakage, and subsequent odor; (3) plaintiff’s physician told her that her Ehlers-Danlos syndrome might be contributing to her poor wound healing and post-implantation complications; (4) plaintiff underwent second surgery in 2008 that used retropubic sling made of synthetic mesh to address plaintiff’s incontinence; (5) physician told plaintiff at time of second surgery that there was risk of mesh erosion, as well as recurrent incontinence; (6) during subsequent 5.5-year period plaintiff’s symptoms had worsened; (7) in 2015 different physician told plaintiff about existence of mesh imbedded in her urethra and unsuccessfully attempted to remove said mesh; (8) in 2018, plaintiff spoke to attorney, who referred plaintiff to pelvic mesh litigation specialist; (9) plaintiff filed instant lawsuit in September of 2018; and (10) at no time prior to plaintiff speaking to attorney in 2018 did plaintiff’s physicians suggest that instant mesh device was defective. Illinois discovery rule provides that limitations period does not begin until plaintiff knows or reasonably should have known both that plaintiff was injured and that her injury was wrongfully caused by another person. As such, Ct. observed that reasonable jury could decide that instant complaint was timely, where: (1) failure of medical procedure does not necessarily signal that anyone acted wrongfully; (2) two physicians told plaintiff that her EDS could explain her continued problem; and (3) no one told plaintiff that defective mesh device was source of her problems until 2018.