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Chariton v. Ethicon, Inc.

United States District Court, D. Idaho

April 29, 2014



B. LYNN WINMILL, Chief District Judge.


Before the Court is defendants' motion to dismiss. The motion is fully briefed and at issue. For the reasons set forth below, the Court will grant the defendant's motion.


Anita Chariton underwent surgery in 2007 to repair a hernia. The surgeon, Dr. Cher Ann Jacobsen, repaired the hernia by implanting a mesh product known as the Prolene Hernia System. It was manufactured by the defendant Ethicon, Inc. which is a wholly owned subsidiary of defendant Johnson & Johnson, Inc.[1] Id.

Sometime after the surgery Chariton experienced abdominal pain and swelling, difficulty walking, and other discomfort. This continued for years, prompting Chariton to undergo an exploratory laparoscopy in June of 2011. During that procedure, Dr. John Pennings removed some of the old mesh and implanted new mesh. Id.

In September 2011, Chariton followed-up with Dr. Jacobsen to discuss the procedure performed in June 2011. Dr. Jacobsen told Chariton the mesh implanted in 2007 was defective and had caused her injuries. Because of these injuries Chariton seeks recovery in this suit.

Chariton filed her complaint on August 19, 2013, and, after amendment, her complaint now contains three counts: (1) strict liability for a manufacturing defect, (2) negligent failure to warn, and (3) negligent preparation of the product. See Amended Complaint (Dkt. 9). Ethicon argues that Chariton's complaint is time-barred by the two-year statute of limitations in Idaho Code, § 5-219(4).


The parties agree that Chariton's claims are governed by a two-year statute of limitations contained in Idaho's Products Liability Reform Act, but disagree over when that period begins. The Act's limitation provision states that no action can be brought "more than two (2) years from the time the cause of action accrued as defined in Idaho Code § 5-219." Under § 5-219(4), the cause of action accrues at "the time of the occurrence, act or omission complained of" unless it is based upon (1) leaving a foreign object in a patient's body, or (2) a claim that the damage was fraudulently concealed from the patient. If either of these two exceptions applies, the cause of action only accrues once the plaintiff "knows or in the exercise of reasonable care should have been put on inquiry" of the injury. See I.C. § 5-219(4).

Assuming that neither exception applies, the two-year period begins on the date of "the occurrence, act or omission complained of, " according to the statute. This language has been interpreted by the Idaho Supreme Court to require that there be "some damage" to the patient that is "objectively ascertainable." Stuard v. Jorgenson, 249 F.3d 1156, 1160 (Id.Sup.Ct. 2011).

The Idaho Supreme Court put this gloss on the statutory language - that is, interpreted the language "flexibly" - in an attempt to "avoid absurd results." Davis v. Moran, 735 P.2d 1014, 1019 (Id.Sup.Ct. 1987). In that case, a patient claimed that her spinal cord was damaged when it was exposed to an excessive dose of radiation. Although she filed suit more than two years after the radiation treatment, her suit was within two years of the date her doctors discovered that the treatment caused her spine problems. Id. at 1016. She submitted evidence that damage from radiation treatment is often not immediately detectable and might not arise until years after the treatment. Id.

If the statutory language was read strictly, the date of the radiation treatment would be "the time of the... act... complained of, " and the patient's claim would be time-barred. But that would be an "absurd" result if there was no actual damage until long after the treatment, as some evidence suggested. At the same time, the court could not ignore the statutory intent to limit the discovery exception to two narrow instances, neither of which applied. Accordingly, the Court, interpreting the statutory language "flexibly, " held that the limitations period would not begin until the "fact of injury becomes objectively ascertainable." Id. at 709. Because there were questions of fact on that issue, the court remanded the case for further fact-finding. Id.

As another example, when a patient complained about exposure to asbestos that did not cause an objectively ascertainable injury to his lungs until years later, the limitations period did not begin to run until that later date. Brennan v. Owens-Corning Fiberglas Corp., 10 P.3d 749 (Id.Sup.Ct. 2000). While these cases soften one of the statute's sharp edges, they leave untouched another: When detectable damage occurs without symptoms, the limitations clock ...

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