UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-51114
Summary Calendar
ANITA PORTERFIELD AND JOHN PORTERFIELD,
Plaintiffs-Appellants,
v.
ETHICON, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
August 18, 1999
Before DAVIS, DUHÉ, and PARKER, Circuit Judges.
PER CURIAM:
Anita and John Porterfield filed this lawsuit against Ethicon,
the manufacturer of a mesh used to surgically repair Anita
Porterfield's ventral hernia, for product liability, negligence,
breach of warranty, fraud, and violations of the Texas Deceptive
Trade Practices Act. The district court granted summary judgment
in favor of Ethicon. Porterfields appeal. We affirm.
I. BACKGROUND AND PROCEEDINGS
On November 19, 1993, Anita Porterfield underwent ventral
hernia repair surgery during which Dr. George Mimari implanted
Prolene polypropylene mesh in her abdomen to repair and/or
reinforce her abdominal wall. In her deposition, Porterfield
acknowledged that she began having problems with the mesh within a
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week or two following the hernia surgery and that she “knew the
problems were related to the mesh.” In particular, she had
experienced a number of problems, including severe hypertension,
pain and tenderness in her lower abdomen, polyarthritis, fever,
arthralgias, and chronic fatigue.
Shortly thereafter, Porterfield conducted research to
determine if Prolene mesh could cause problems. Through her
research, she learned that mesh can cause infection and migrate and
become imbedded in other organs. In February 1994, Porterfield
asked her surgeon, Dr. Mimari, whether her symptoms could be
related to the mesh. On April 14, 1994, Porterfield wrote a letter
to Dr. John P. Huff, advising him that she was experiencing
abdominal pain around the area of the mesh implant. In this
letter, Porterfield states that she and her primary physician, Dr.
De Noia, suspected that her health problems were related to her
hernia surgery.
On September 11, 1995, Porterfield underwent surgery to remove
the mesh. During the surgery, Porterfield's surgeons had to remove
part of her liver and stomach because the mesh had adhered to these
organs. Following surgery, Porterfield suffered from an abdominal
wall infection and was hospitalized from September 20 to September
25, 1995. The Porterfields filed this lawsuit on August 30, 1996.
II. DISCUSSION
On appeal, Porterfield raises two points of error: (1) the
district court erred in granting summary judgment on the ground
that her claims were barred by the statute of limitations; and (2)
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the district court misapplied the learned intermediary doctrine in
dismissing her implied warranty of merchantability claim as a
matter of law. We conclude that Porterfield's claims were barred
by the statute of limitations and that her implied warranty claim
failed as a matter of law.
Ethicon moved for summary judgment on the basis, inter alia,
that Porterfield's claims were barred by the statute of
limitations. The district court, accepting the Magistrate Judge's
Recommendation, determined that Porterfield's claims accrued on
April 14, 1994. Because this lawsuit was not filed until August
30, 1996, the district court ruled that Porterfield's claims were
barred by the two-year statute of limitations. This Court reviews
a grant of summary judgment de novo, applying the same standards as
applied by a district court. See Winters v. Diamond Shamrock
Chemical Co., 149 F.3d 387, 402 (5th Cir. 1998).
The parties do not contest the application of Texas
substantive law to this matter. In Texas, a two-year statute of
limitations governs personal injury actions. See Tex. Civ. Prac.
& Rem. Code Ann. § 16.003(a) (Vernon 1986). A personal injury
action must be filed within two years from the date the cause of
action accrues. See Winters, 149 F.3d at 402. A cause of action
accrues when the legal wrong is completed and the plaintiff is
entitled to commence suit, even if the party is unaware of the
wrong. See id.
Texas courts have adopted a discovery rule that tolls the
statute of limitations until the plaintiff discovers, or through
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the exercise of reasonable care and diligence should have
discovered, the nature of the injury. See Winters, 149 F.3d at
403. Discovery does not necessarily mean “actual knowledge of the
particulars of a cause of action.” Vaught v. Showa Denko K.K., 107
F.3d 1137, 1140 (5th Cir. 1997). Instead, the question is whether
the plaintiff has “knowledge of facts which would cause a
reasonable person to diligently make inquiry to determine his or
her legal rights.” Vaught, 107 F.3d at 1141-42.
The evidence in the record establishes that Anita Porterfield
had knowledge of facts regarding the nature of her injury more than
two years before the lawsuit was filed. Within weeks of her
November 1993 surgery, Porterfield stated that she “knew that the
problems were related to the mesh.” In response to these problems,
Porterfield conducted her own research to document a possible
connection between her symptoms and the mesh and, in fact, she
located information that suggested a connection. On April 14,
1994, Porterfield wrote to Dr. Huff stating: “[i]t is my concern,
and also of my primary care physician, Dr. De Noia, that the
problems that I have experienced since my hernia surgery in
November are an inflammatory response to the surgical mesh
implant.” Porterfield was aware of the nature of her injury soon
after her first surgery in November 1993 and, at the latest, by
April 14, 1994.
Porterfield argues that she could not reasonably have
discovered her cause of action until she had surgery on September
11, 1995 to remove the mesh. In her view, it was only on that date
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that the surgeons learned that the mesh had attached itself to her
liver. There is no requirement that Porterfield have actual
knowledge of the particulars of the cause of action. See Vaught,
107 F.3d at 1141-42. Porterfield had knowledge that her physical
problems were associated with the mesh no later than April 1994.
Thus, under the discovery rule, her claims were barred by the two-
year statute of limitations.
In her next point of error, Porterfield contends that the
district court erred in dismissing her implied warranty of
merchantability claim. Specifically, Porterfield contends that
Ethicon failed to adequately warn her physician of risks associated
with the use of mesh and that this failure caused her injury. The
district court ruled, and we agree, that Porterfield has not
established that the failure to warn caused her injury.
The main issue in Porterfield's implied warranty claim
revolves around the application of the “learned intermediary”
doctrine, where a physician stands as an intermediary between a
product manufacturer and the patient. Under this doctrine, a
product manufacturer is excused from warning each patient who
receives the product when the manufacturer properly warns the
prescribing physician of the product's dangers. See Alm v.
Aluminum Co. of America, 717 S.W.2d 588, 591-92 (Tex. 1986). The
product manufacturer relies on the physician to pass on its
warnings. Notably, “when the warning to the intermediary is
inadequate or misleading, the manufacturer remains liable for
injuries sustained by the ultimate user.” See Alm, 717 S.W.2d at
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592. The learned intermediary doctrine applies in medical products
liability actions in Texas. See Bean v. Baxter Healthcare Corp.,
965 S.W.2d 656, 663 (Tex. App.-Houston [14th Dist.] 1998, no writ)
(applying learned intermediary doctrine to warnings applied to
surgeons regarding breast implants).
In order to recover for a failure to warn under the learned
intermediary doctrine, a plaintiff must show: (1) the warning was
defective; and (2) the failure to warn was a producing cause of
the plaintiff's condition or injury. See Stewart v. Janssen
Pharmaceutica, Inc., 780 S.W.2d 910, 911 (Tex. Ct. App.-El Paso
1989, writ denied) (citing Technical Chemical Co. v. Jacobs, 480
S.W.2d 602 (Tex. 1972)). If the physician was aware of the
possible risks involved in the use of the product but decided to
use it anyway, the adequacy of the warning is not a producing cause
of the injury. See Stewart, 780 S.W.2d at 912. Because there is
evidence that the warning was defective, we proceed to the second
prong of the analysis.
Under the second prong, Porterfield has failed to present
evidence that the failure to warn was a producing cause of her
injury. In this case, Dr. Mimari, the surgeon who performed
Porterfield's hernia surgery using the mesh, testified that at no
time prior to Porterfield's surgery had he read Ethicon's package
insert or any other Ethicon literature. Instead, Mimari relied on
surgical literature, his own experience, and the experience of his
colleagues in weighing the risks and benefits of surgery with the
mesh. Mimari also testified that he was aware of the risks of
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infection, adhesion, and immune response. Importantly, Mimari
testified that the use of mesh outweighed the possible risks
because without the mesh, the likelihood of successfully repairing
the hernia would have been diminished. Because Porterfield's
surgeon was aware of the possible risks of using the mesh but
decided to use it anyway, the inadequate warning was not a
producing cause of Porterfield's injury. See Stewart, 780 S.W.2d
at 912.
III. CONCLUSION
Based on the foregoing, the opinion of the district court is
AFFIRMED.
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