We tend not to post much on appellate statute of limitations decisions.  There are a few reasons for that.  First, they are often very fact-specific, rarely delivering holdings with clear applications to other cases.  Second, because they can be fact-specific and plaintiffs are known to plead around defenses, good decisions on motions to dismiss are also the exception.  When SOL is raised on summary judgment, there can an inclination for judges who have overseen a case for a while and have trial on the horizon to find disputed facts for the jury to resolve.  Third, while decisions on statute of limitations do get appealed, the appellate decisions do not seem to get published much unless there is another issue decided on appeal, which might end up as the focus of our post.

When the defendants were dismissed in a hernia device product liability case called Nowell a few years ago, our posts focused on the federal district court’s prediction that New Mexico would adopt the learned intermediary doctrine for prescription medical device cases. See here and here.  The decision even merited an honorable mention on our 2019 top ten list because of that.  But the district court also held the plaintiff’s claims to be time-barred.  On appeal, the Tenth Circuit did not even address the merits, but affirmed on statute of limitations.  Nowell v. Medtronic, Inc., No. 19-2072, 2021 U.S. App. LEXIS 32207 (10th Cir. Oct. 27, 2021).  We like the decision precisely because it does seem applicable to other cases in our space.  While the court predicted that New Mexico would apply the discovery rule to product liability claims—something that, on its face, plaintiffs should like—its application of the discovery rule to the facts of the case as set out in the operative complaint rejected anti-SOL arguments we see frequently.

For those who handle cases involving implanted medical devices, the basic facts here should seem pretty familiar.  The plaintiff had defendants’ hernia mesh device implanted in October 2010.  Six months later, she had a revision surgery, at which time it was noted that the mesh had begun to “pull away” from the edges of where it had been placed.  Id. at *2.  For close to three years after this second surgery, plaintiff complained of pain in the area of the mesh, but did not have any diagnostic studies until March 2014.  That CT scan noted cysts “in the area associated with the mesh,” which required a drainage procedure.  Id.  Pain continued for another seven months, leading to a second CT on October 6, 2014, that revealed a fluid collection associated with the mesh that suggested infection.  Id. at *3.  Two days later, the surgeon who had performed the prior two surgeries recommended a third to remove the mesh device.  Plaintiff sued a day short of three years after the removal recommendation and, predictably, claimed that it started the three-year SOL clock for her product liability claims.  Id. at *16.

New Mexico courts had adopted the discovery rule for various personal injury (and other) claims, but not for product liability.  Even though the parties agreed that the discovery rule should apply, the court still had to predict (as a federal court sitting in diversity should) if New Mexico’s high court would adopt the discovery rule for product liability claims.  We will not dwell on that part of the decision.  The application is more interesting to us, especially given that the New Mexico Supreme Court had previously specified that inquiry notice should focus on the plaintiff’s knowledge of the factual bases of a claim—“Were the rule otherwise, the discovery rule would postpone accrual in every case until the plaintiff consults an attorney.”  Id. at *8 (citation omitted).  If that quote were amended to “until the plaintiff sees lawyer advertising or consults with the attorney who took her case,” then it would address arguments routinely raised in the sort of serial product liability that drug and device manufacturers face these days.

Plaintiff did not go quite that far, at least on appeal.  Instead, her main argument was that her three years to sue did not start until her “doctor identified the problem giving rise to the cause of action” and told her about it when recommending the third surgery.  Id. at *14.  A key consideration was that, although SOL is an affirmative defense, the discovery rule in New Mexico requires the plaintiff to establish “that if she had diligently investigated the problem she would have been unable to discover the cause of her injury.”  Id. at *15 (citation omitted).  Plaintiff tried to rely on the absence of a clear indictment of the device as the cause of her problems relayed to her by treating physicians prior to October 8, 2014, when she was advised to have it removed.  She argued that an earlier accrual date “would be unjust [because] [w]hen your doctor tells you that your injury is not cause by surgical mesh it is not reasonable to expect you to sue the surgical mesh company.”  Id. at *16.  We can almost hear the plaintiff’s deposition testimony if the case got that far.  The defendant might like the substantive admission “no doctor ever told me the mesh caused my problems” and the SOL admissions that “I understood from the doctors that mesh pulling away from the repair, cysts associated the mesh, and a fluid accumulation around the mesh were bad and could be related to the mesh.”  To these, the plaintiff would counter with a self-serving “but no doctor ever advised me that the mesh was defective,” something she learned from her lawyers (if the instruction not to answer came too late) and her retained experts.

Even without this hypothetical testimony—but with a declaration from plaintiff that the district court was within its discretion to exclude—the Tenth Circuit saw the issue with plaintiff’s approach.  “[S]he seeks to shift the burden concerning the discovery of the cause of her injury from her shoulders onto that of her treating physicians.  This she cannot do.”  Id. at *17.  A “definitive” medical opinion on the cause of the plaintiff’s alleged injuries is not needed to start the clock.  Id. at **18-19.  (Indeed, we have seen many, many plaintiffs sue without a definitive diagnosis of any claimed injuries, let alone that they were due to the defendant’s product.)  Moreover, as noted above, she had to prove a diligent investigation would not have revealed the alleged cause of her injuries before she claims to have discovered it.  She could not do it on this record, which did not include any investigation of the reason for her second surgery, the cause of her on-going pain for close to three years after her second surgery, or the cause of the cysts revealed on the CT she got more than three-and-a-half years before suing.  Id. at **20-21.  This was more than enough to put her on inquiry notice, regardless of whether she admitted in her pleadings that her physicians used magic words in describing diagnostic findings or recommended interventions.  While the facts may change slightly in future cases, defendants facing untimely cases should benefit from the Tenth Circuit’s rejection that the plaintiff has to have heard certain words from a treating physician for the clock to start.

The appellate court was also not swayed by the argument that the language in her complaint that October 8, 2014, was the first time a doctor informed her of a problem with the mesh device meant that she should not have discovered the cause of her alleged injuries before then.  The former did not mean she “never knew there was an issue with the mesh” before that conversation.  Id. at *22.  That assertion was not included, let alone supported, in her operative complaint.  As such, she sued too late even with the discovery rule.  (Her implied warranty claim was also untimely, because the statute provides that the claim accrues with the delivery of the purchased good and there is no discovery rule.  Id. at **25-27.)

We can see where plaintiffs would go with this to try to get past a motion to dismiss.  They would load up their complaints with additional self-serving statements about diligent efforts and the inability to ascertain their injuries and the link to defendant’s product until sometime within the SOL period.  Or they would just omit the dates needed to determine whether the claims were timely.  An astute court should not fall for the former given TwIqbal and should cut off the latter by granting a motion for a more definite statement under Fed. R. Civ. P. 12(e).