RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0379p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
LESLIE CLABO,
│
Plaintiff-Appellant, │
> No. 20-5168
│
v. │
│
JOHNSON & JOHNSON HEALTH CARE SYSTEMS, INC.; │
ETHICON ENDO-SURGERY, INC., │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 3:19-cv-00154—Curtis L. Collier, District Judge.
Argued: November 17, 2020
Decided and Filed: December 14, 2020
Before: KETHLEDGE, DONALD, and LARSEN, Circuit Judges.
_________________
COUNSEL
ARGUED: Richard Baker, THE LAW OFFICE OF RICHARD BAKER, Knoxville, Tennessee,
for Appellant. Susanna M. Moldoveanu, BUTLER SNOW LLP, Memphis, Tennessee, for
Appellees. ON BRIEF: Richard Baker, THE LAW OFFICE OF RICHARD BAKER,
Knoxville, Tennessee, for Appellant. Susanna M. Moldoveanu, Amy M. Pepke, BUTLER
SNOW LLP, Memphis, Tennessee, for Appellees.
_________________
OPINION
_________________
BERNICE BOUIE DONALD, Circuit Judge. Beginning in 2003, Leslie Clabo had
several procedures performed to correct certain painful and uncomfortable medical issues.
No. 20-5168 Clabo v. Johnson & Johnson Health Care, et al. Page 2
To alleviate her suffering, Clabo was implanted with a TVT transvaginal mesh device that was
manufactured by Defendants-Appellees, Johnson & Johnson Health Care Systems, Inc. and
Ethicon Endo-Surgery, Inc. (collectively, “the Defendants”). Over time, Clabo was forced to
repair and replace the mesh product because it eroded and would intermittently not serve its
intended purpose. After Clabo initiated a products liability lawsuit, in which she alleged that the
Defendants were liable for her injuries under Tennessee law, Defendants filed a motion for
summary judgment, asserting that Clabo’s claims were time-barred in accordance with
Tennessee’s statute of repose. When Clabo subsequently filed a motion to amend her complaint
and add new claims related to her injuries, the Defendants argued that her motion was futile
because all of her claims were time-barred. The district court ultimately agreed with the
Defendants, granted their motion for summary judgment, and denied Clabo’s motion to amend
her complaint. On appeal, Clabo’s primary contention is that the district court erred in
determining her date of injury. Because the record undoubtedly demonstrates that Clabo’s
injuries occurred outside of the applicable statute of repose period, we AFFIRM the district
court.
I.
In May 2003, Leslie Clabo underwent surgery to correct two conditions that she
developed: pelvic organ prolapse and urinary incontinence. To treat these conditions, Clabo’s
doctor implanted her with a TVT transvaginal mesh sling device that the Defendants
manufactured. By 2006, she began experiencing additional discomfort, including pelvic pain,
urinary issues, scarring, and pain during sexual intercourse. After being notified by her doctor
that the mesh from her device had eroded through her vaginal canal, Clabo had a second
procedure in April 2006 to remove the TVT implant. Approximately a month later, Clabo had
surgery to implant a mesh sling similar to the one she had removed. In 2011, Clabo had yet
another surgery. Again due to mesh erosion, she had pieces of her most recent implant removed
and other parts repaired. Though Clabo had several procedures performed to address her
abovementioned medical issues, she alleges that it was not until July 2012 that she finally
realized (after speaking with a physician-friend) that the TVT mesh product was the likely cause
of her persistent pain and suffering.
No. 20-5168 Clabo v. Johnson & Johnson Health Care, et al. Page 3
Seeking compensation for her resulting impairments, on May 6, 2013, Clabo filed a
lawsuit against the Defendants, asserting products liability claims under the Tennessee Products
Liability Act of 1978 (“TPLA”), Tenn. Code Ann. §§ 29–28–101 et seq. Defendants
subsequently filed a motion for summary judgment, arguing that Clabo’s claims were barred by
Tennessee’s statute of repose, which prohibits products liability claims brought more than six
years after the date of the injury that gave rise to the suit. See Tenn. Code. Ann. § 29-28-103(a).
Clabo responded by filing a motion to amend her complaint, and the Defendants opposed
Clabo’s motion on futility grounds. The district court denied Clabo’s motion to amend and
granted summary judgment in favor of the Defendants, finding that Clabo’s initial injury
occurred during 2006—making her claims time-barred, and therefore, futile. Clabo timely
appealed, and now challenges the district court’s date of injury determination. Clabo also alleges
that the district court wrongfully decided to strike her supplemental brief, which she filed in
response to the Defendants’ summary judgment motion.
II.
We begin with the Defendants’ motion for summary judgment. The Court reviews a
district court’s grant of summary judgment de novo, “drawing all reasonable inferences in favor
of the nonmoving party.” Rocheleau v. Elder Living Const., LLC, 814 F.3d 398, 400 (6th Cir.
2016) (quotation omitted). Summary judgment is appropriate where the movant demonstrates
that there is “no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). Accordingly, summary judgment must be entered where
the nonmovant “fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “In order for the non-movant to
defeat a summary-judgment motion, there must be evidence on which the jury could reasonably
find for the [non-movant].” Bard v. Brown County, 970 F.3d 738, 748 (6th Cir. 2020) (alteration
in original) (quoting Klepper v. First Am. Bank, 916 F.2d 337, 342 (6th Cir. 1990)) (internal
quotation marks omitted); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
Whether or not the district court erred by granting the Defendants’ summary judgment
motion can be resolved by answering one question: when exactly was Clabo first injured by the
No. 20-5168 Clabo v. Johnson & Johnson Health Care, et al. Page 4
Defendants’ product? Defendants argue that, if their product caused Clabo’s injury, the injury
first occurred in 2006, when she had surgery to remove the eroded mesh. But Clabo asserts that
at the earliest, she was not injured by the Defendants’ product until after her 2011 surgery.
Alternatively, Clabo claims that she was injured by the mesh device in 2012, because at that
point, she was informed by a physician that the mesh device was the cause of her medical
problems. The resolution to this issue therefore depends on how “injury” is defined.
The term “injury” is not defined in the TPLA, so we “are obliged to decide the case as we
believe the [Tennessee] Supreme Court would.” Cobb v. Tenn. Valley Auth., 595 F. App’x 458,
459 (6th Cir. 2014) (quoting Louisville/Jefferson Cnty. Metro Gov’t v. Hotels.com, L.P.,
590 F.3d 381, 385 (6th Cir. 2009)). In doing so, we are to be mindful that the Tennessee
Supreme Court would “ascertain and give effect to the legislative intent without unduly
restricting or expanding [the] statute’s coverage beyond its intended scope.” Daron v. Dep’t of
Correction, 44 S.W.3d 478, 480–81 (Tenn. 2001) (quotation omitted). Moreover, if the language
in the Tennessee statute in question is unambiguous, we will “apply its ordinary and plain
meaning.” Pennycuff v. Fentress Cnty. Bd. of Educ., 404 F.3d 447, 452 (6th Cir. 2005) (quoting
Bowden v. Memphis Bd. of Educ., 29 S.W.3d 462, 465 (Tenn. 2000)).
Because the text of Tenn. Code Ann. § 29-28-103(a)—"[a]ny action against a
manufacturer or seller of a product for injury to person or property caused by its defective or
unreasonably dangerous condition . . . must be brought within six (6) years of the date of
injury”—is rather unambiguous, we give “injury” its plain meaning. Black’s Law
Dictionary defines “injury” as “[a]ny harm or damage” or “[a]nything said or done in breach of a
duty not to do it, if harm results to another in person.” Injury, Black’s Law Dictionary (11th ed.
2019). Because “harm” is defined by Black’s Law Dictionary as “[i]njury, loss, damage;
material or tangible detriment,” Harm, Black’s Law Dictionary (11th ed. 2019), “date of injury,”
in this context, refers to the instance when an individual was first physically affected by a
particular defect in a seller or manufacturer’s product in a manner that was to his or her
detriment.
This definition aligns with the Tennessee legislature’s intent behind enacting the TPLA.
The Tennessee legislature intended the TPLA to “limit the time within which a suit alleging
No. 20-5168 Clabo v. Johnson & Johnson Health Care, et al. Page 5
products liability may be brought and thereby address the actuarial concerns of the insurance
industry and allow for accurate assessment of liability exposure for insurance purposes.” Sharp
v. Richardson, 937 S.W.2d 846, 850 (Tenn. 1996). It was significant that the Tennessee
legislature chose to set forth a specific limitations period for such actions, rather than exclusively
rely on other more general limitations periods, because it demonstrates that while this provision
might lead to harsh results, it is necessary to achieve the Tennessee legislature’s desired
outcomes. See Penley v. Honda Motor Co., 31 S.W.3d 181, 187 (Tenn. 2000). With that
definition in mind, we turn to analyzing the evidence presented by the parties.
The evidence in the record reveals that Clabo was injured by Defendants’ product as
early as 2006. Clabo’s own testimony confirms this finding:
Q: [I]s it correct that a doctor informed you that the mesh had begun
to erode through the vaginal canal?
A: That’s correct.
Q: And is that the reason that you then had surgery with Dr.
[Frederick] Klein in April of 2006 to remove the eroded mesh?
A: Yes.
…
Q: And after that surgery with Dr. Klein, you then a month later had
another sling implanted by Dr. Klein?
A: Correct.
…
Q: And I’ve got a note from Dr. Klein about mid-May of ’06 where
you were wanting to have that mesh replaced ASAP. Does that
sound right?
A: It probably does.
Clabo additionally makes similar admissions in a fact sheet that she filed in connection with a
related multidistrict litigation matter. On the fact sheet, in response to a question regarding when
she was first injured by the Defendants’ product, Clabo replied that in 2006, she first realized
that she could feel exposed tape from the mesh device. Clabo also admitted that in 2006, her
partner felt something scratch him during sexual intercourse. The evidence before the Court,
which comes in the form of Clabo’s own statements and acknowledgments, proves that she was
No. 20-5168 Clabo v. Johnson & Johnson Health Care, et al. Page 6
“injured” by Defendants’ product in April 2006. It was by this time that Defendants’ TVT mesh
device began to erode, and caused Clabo to have surgery to replace the damaged product.
The record here is therefore easily distinguishable from that in Parton v. Johnson &
Johnson, et al., 821 F. App’x 601 (6th Cir. 2020), where we held that a very similar claim was
not barred by the Tennessee statute of repose. Id. at 604. There, the plaintiff testified merely
that she felt “pain” more than six years before she brought suit. Id. at 603. And in that case the
plaintiff’s mesh began to emerge through her vaginal tissue only a year before she filed suit,
rather than, as here, seven years before. Id. On the record in Parton, therefore, a reasonable jury
would not be compelled to find that the plaintiff was injured by the mesh more than six years
before she filed suit.
Furthermore, Clabo’s two proposed dates of injury are inaccurate. First, Clabo asserts
that the earliest possible date of her injury is July 2011, because that is when she had additional
surgeries for removal of parts of the sling that had perforated tissue into her vaginal walls.
Though Clabo did have a procedure in 2011 to yet again correct a problem she was having with
her mesh sling device, she does not explain why her 2011 surgery was any different than the one
she underwent in April 2006. Both procedures transpired due to an ineffective TVT mesh
device, and Clabo fails to distinguish these two surgeries in a way that could lead the Court to
accept that she was first injured by Defendants’ device in July 2011. Second, Clabo contends
that in the alternative, she was injured by the Defendants’ mesh device in July 2012, when she
was “advised by a medical doctor friend of the probable association of TVT mesh and her
continuing problems.” By making this argument, Clabo is essentially requesting that the Court
apply the discovery rule to excuse her from being subjected to Tennessee’s statute of repose
restrictions. See Potts v. Celotex Corp., 796 S.W.2d 678, 680 (Tenn. 1990).1 However,
Tennessee courts have declined to extend the discovery rule to toll the Tennessee statute of
repose. See Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509, 515 (Tenn. 2005)
(“A statute of repose . . . limits the time within which an action may be brought and is unrelated
1“Under the ‘discovery rule’ applicable in tort actions, including but not restricted to products liability
actions predicated on negligence, strict liability or misrepresentation, the cause of action accrues and the statute of
limitations begins to run when the injury occurs or is discovered, or when in the exercise of reasonable care and
diligence, it should have been discovered.” Potts, 796 S.W.2d at 680.
No. 20-5168 Clabo v. Johnson & Johnson Health Care, et al. Page 7
to the accrual of any cause of action.”). And thus, Clabo has not demonstrated that she was first
injured in 2011 or 2012.
Accordingly, the Court affirms the district court’s grant of summary judgment in favor of
the Defendants because Clabo filed her initial complaint on May 6, 2013—more than six years
after her injury in 2006—and as a result, her claims are time-barred by Tennessee’s statute of
repose.
The Court also notes that the district court appropriately denied Clabo’s motion to amend
as futile. In her amended complaint, Clabo asserts that in 2006, she began to experience medical
issues that were seemingly related to the implantation of the Defendants’ mesh device.2 Thus,
her amended complaint would not have assisted Clabo with successfully obtaining the relief she
sought; and consequently, there was no error on the part of the district court in this regard.
III.
Clabo also seeks reversal of the district court’s decision to strike her supplemental brief
filed in response to Defendants’ motion for summary judgment. The Court reviews “the decision
to grant or deny a motion to strike for an abuse of discretion, and decisions that are reasonable,
that is, not arbitrary, will not be overturned.” Seay v. Tenn. Valley Auth., 339 F.3d 454, 480 (6th
Cir. 2003) (quotation omitted). When striking Clabo’s supplemental response, the district court
reasoned that in violation of local rule E.D. Tenn. L.R. 7.1(d), Clabo neglected to receive
approval from the district court prior to filing her supplemental brief.3 Clabo now argues that
because she asked the district court for permission to file her brief, the court erred by finding that
she violated E.D. Tenn. L.R. 7.1(d). Clabo’s argument is misplaced. Even though Clabo might
2Although it is generally inappropriate to deny a motion to amend on futility grounds because the claims
within a complaint are time-barred, we have previously held that such a denial is permissible if the complaint
affirmatively shows that the plaintiff’s claims are barred by an applicable statute of limitations. Cataldo v. U.S.
Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012).
3According to E.D. Tenn. L.R. 7.1(d), “No additional briefs, affidavits, or other papers in support of or in
opposition to a motion shall be filed without prior approval of the Court, except that a party may file a supplemental
brief of no more than 5 pages to call to the Court’s attention developments occurring after a party’s final brief is
filed.” Clabo’s supplemental brief did not fall under E.D. Tenn. L.R. 7.1(d)’s exception because in her brief, she
attempted to make additional arguments, and she did not endeavor to bring any new developments to the district
court’s attention.
No. 20-5168 Clabo v. Johnson & Johnson Health Care, et al. Page 8
have inquired about obtaining the district court’s permission to file her supplemental brief, the
district court never approved her request. See E.D. Tenn. L.R. 7.1(d) (emphasis added).
Because the district court did not consent to Clabo’s filing, the court did not abuse its discretion.
The Court therefore must affirm the district court’s decision to strike Clabo’s supplemental
filing.
IV.
For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment
and denial of Clabo’s motion to amend, as well as the district court’s decision to strike Clabo’s
supplemental brief.