A couple of times in recent weeks we have discussed pelvic mesh cases where a central issue was whether the cases were time-barred by a statute of limitations or repose. (See here and here.) There is a reason why this issue crops up persistently. The pelvic mesh litigation started off as a mass tort MDL. By itself, it represented a pretty big chunk of the federal civil docket. There have been many trials and many settlements, but it remains a mass tort. Why? For some plaintiff firms, particularly those of the more opportunistic, parasitic varieties, it is easier to milk an existing mass tort than to go out and do new factual investigation or legal research. Think of the heaps of lawyers who show up (virtually, now, one supposes) at monthly asbestos docket calls, droning on, adding to the background hum of a machinery designed to grind out settlements. If justice and reality play any role in this industrial process, then it is purely by accident.

Defense lawyers and judges (but not usually plaintiff lawyers) fret over how to cut off the “tail” of a mass tort. It has to end, somehow. If not, why would any sentient defendant settle? It’s a matter of time. No wonder, then, that statutes of limitations and repose come out of the toolbox. They might have been just as available and valid much earlier in the litigation. But that was before the defendants started to settle. After settlements, courts start viewing the holdout plaintiffs, not the defendants, as the recalcitrant parties. Time to spank them with time-bars, right? It should be.

In Kelly v. Ethicon, Inc., 2021 U.S. Dist. LEXIS 1874 (N.D. Iowa Jan. 6, 2021), the court dismissed a pelvic mesh case based on Iowa’s two year statute of limitations. Let’s be frank: this was a clear-cut case of a plaintiff who waited way too long. She had the implant in 2004, and shortly afterwards began experiencing the very injuries that animated her complaint filed in 2014. The plaintiff argued that the clock did not start until a doctor told her in July 2014 that the mesh caused her problems. That is a hard argument to swallow, inasmuch as she hired a lawyer for this case in 2013 and filed the complaint in February 2014. (Did she file the case before she knew she had one? Hmmm.). More to the point, the court held that the “plaintiff was aware of facts and had reason to believe by 2010 at the latest that some defect in the TVT implant may be causing her ongoing and worsening conditions. Such facts reasonably should have prompted her to begin seeking information at that time.” Even a minimum of such information-seeking would have unearthed an FDA public health notification regarding pelvic mesh. A lawsuit would have followed shortly. How do we know this? Because thousands of lawsuits were filed.

The Kelly court saw no basis to apply equitable estoppel against the defendants due to fraudulent concealment. The plaintiff had plenty of facts to put her on notice, and there wasn’t an ounce of justifiable reliance, Thus, the defendants were not barred from asserting a statute of limitations defense, and the plaintiff was barred from pressing her claims because they were simply too late.

That ruling, reasoning, and outcome are all well and good. What makes the Kelly case particularly interesting is the plaintiff’s effort to evade the statute of limitations defense on unusual procedural grounds. A nontrivial part of the record supporting the court’s application of the statute of limitations was the deposition of the plaintiff. That deposition was taken by an independently contracted attorney for defendants’ counsel’s firm. (There have been many contract attorneys on both sides in the mesh litigation.) That independent contractor attorney was admitted in West Virginia (where the MDL was located), but she had not made an appearance in the Kelly case, which ended up in Iowa. Based on that alleged procedural foot-fault, the plaintiff moved to strike the portions of her testimony used by the defendants to support the statute of limitations motion.

In the hurly-burly of an MDL, it is completely understandable how an attorney might forget to file an appearance in one of the thousands of cases. It happens. Nevertheless, one does, perhaps grudgingly, have to award points to the plaintiff’s lawyers for seizing upon such a technicality. It was clever. It was also unsuccessful.

To begin with, it was not quite clear that the out of state (West Virginia in an Iowa case) attorney’s taking of a deposition without filing an appearance violated any rule. The issue was as obscure as it was technical. But even putting aside this obscure, technical issue, the Kelly court refused to grant the plaintiffs’ motion to strike. The nonappearance of the deposing attorney could not conceivably have prejudiced the plaintiff. First, the plaintiffs did not object to the attorney’s appearance at the time of the deposition. Second, the plaintiffs previously submitted testimony from the same deposition. Third, the plaintiffs raised this issue only now, a year and a half later, when parts of the plaintiff’s testimony were potentially unfavorable to her. Fourth, the plaintiffs did not seek to jettison all of the plaintiff’s deposition testimony, but rather, only the parts that supported the defendant’s summary judgment motion. Last, the plaintiffs did not object to the deposition of the husband, which was conducted by the same lawyer on the same day.

Thus, the Kelly court concluded that the plaintiffs’ motion to strike was “more so an attempt to editorialize plaintiff’s deposition testimony” rather than to redress any issue relating to the defense lawyer’s appearance. Or, as our high school freshman year Religion teacher, Fr. Kilcarr, would have called it, the plaintiff was practicing situational ethics. Moreover, the drastic remedies the plaintiffs sought far outweighed the harm, if any, that the plaintiffs sought to redress. The Kelly court denied the plaintiffs’ motion to strike, granted the defendants’ summary judgment motion, and dismissed the case with prejudice.

A lot of us are working on MDLs. A lot of us are looking for ways to cut off the tail of vampiric litigation. A lot of us are looking for ways out for our clients, including statutes of limitations and repose. We hope that not a lot of us have occasionally flubbed the filing of appearances in cases. But for those of us who have, Kelly offers some comfort that the price of such flubs needn’t be severe.