mr walker yes sir may have please the court my name is eric walker and i represent the the summary judgment on the limitations in this case should be reversed for on either of two issues wholly independent issues discovery roll and fraudulent concealment this is the fifteenth case over an eight month period in which this court has considered the limitations issue in a trans bad case in all fourteen of the previous cases this court has found a question of fact thirteen of those cases involve o b tape or  including that in these cases the thirteen cases i'm speaking of are the rogers case which consolidated twelve other cases there was no certification goes regular sam we've been unified opposition you're not entirely correct the bergen case we we weren't certain what the answer was and we certify the text that's correct and i guess what i'm saying is in the instances where this court has ruled on the issue it is ruled unanimously in favor of there being a question of fact on the limitations issue thirteen times in o cases this court reversed the summary judgment of the court on limitations and now those cases rather minnesota law but minnesota law is very similar to the floor isn't your strongest argument not what we've done thirteen times but that one of the honor i will this case involves facts identical to the agni ham case essentially in this case patricia param and had implanted and shortly after implantation she began to suffer the same injuries that the pain during intercourse precisely the same injuries that are at issue here and that this defendant says should have started the prescriptive period but this court said did not an egg to him also this plaintiff in this case was told that if the mesh that a belief that the surgery rather than the product might have been the cause of the injuries was enough to create a fact issue in particular the plaintiff in that case say acknowledged that she thought that mesh repair was responsible for her injuries and this court found that mesh repair is equally susceptible to an interpretation that the surgery caused the injuries as it was to the notion that the product caused the injuries so this case is on all fours with the hammer both are under florida law and there would be no way to reconcile a this case with what the court held an egg or in the thirteen other cases which under minnesota law which is essentially the same law discovery rule knowledge of cause knowledge of injury but more importantly a runner is the infection and asked her doctor if that was the case the doctor says i don't know what caused your problem i don't know if it's the cause or not this court found a fact issue saying that there was no evidence that the plaintiff that any reason to know the  notwithstanding the temporal relationship between the i u d implantation and the injuries and notwithstanding that the doctor said i'm going to remove the i u d to alleviate your suffering none of those facts were being dispositive on what she knew about causation more significantly she actually those facts were actually more favorable to the defendant than these facts the plaintiff in blue this court's decision that i believe has been cited one hundred sixty nine times that plaintive actually suspected the i u d caused her injuries and asked her doctor if it did our plaintiffs never suspected until she saw the television program that the that the tape was responsible for injuries the doctor in blue said i don't know why she may i mean she and all these cases something happened but she doesn't necessarily know that the mash was a defective isn't that what the absence of knowledge pertains defective or causally related in fact in the rogers case that was the twelve consolidated cases this court noted that the pla was focusing on the word defect in the court says we don't think defect is the real issue it's causative relationship sure the mesh was related to the injuries it's beyond question that it was the mesh for treating a little you didn't have the same beforehand and you had different ones that that's what causes well no your honor it it just means that that something involved in it but not the cause of it if she had a prior infection or if the surgeon had made a mistake in the surgery if they'd implanted the mesh in the circumstances physical circumstances almost immediately right which could have been a result of the surgery the body's rejection of any foreign object whether it be measure something else or not or take the easiest case in the case of an affection it could have been a failure of sterility it could have been a number of different factors unrelated to the mesh itself that's would have been a failure of the realty with respect to the device which would not have been even more likely than not aggravated but may have been involved in the injury itself but not at a causal level i mean the analogy i think of is if you're in a car accident and a drunk driver runs you into up median barrier you have a lawsuit against the drunk driver the minute you're injured but you don't have an obligation to start suing the car maker and the tire maker in the seat belt maker in the air bag maker in the maker of the median of the on the highway and the thought that those may have been they there were involved in the injury undeniably but they're not the cause of the accident or the cause of the injuries unless something comes up later that says the median was too soft or the tires weren't working properly but absent that we would have people running to the courthouse and suing everyone who made anything that had anything to do with their injury including the people who manufactured the equipment used in the surgery itself the bottom line is that there's your due you're right the case law seems to be going your way but you do recognize the logical consequence of your argument is that essentially honor if any of these doctors had told her that this was the cause of her injuries then she would have had one on notice to file suit on the wagners are telling her what's wrong with her i'm sorry doctors are telling her what's wrong because they're treated well no they're saying to her if we remove whatever because well i made up of the part of the matter is she comes in with they come in with symptoms after the implant and all kinds of symptoms that are treated and the doctor said one thing and one thing leads to another and the doctor says i could remove this mesh and that would relieve your symptoms but i could have an infection caused by some kind of drug and somebody could say i'm going to remove your finger because that's where the argument is if you have multiple possibilities of a cause the statute does run no i'm not saying that you're i'm saying there's no ever there was no evidence here in her mind and there had no reason to be that the mesh was one of those causes it was incidentally related to the injuries in the sense that because it was there whatever was causing her injury caused the mas produce some pain but not that the mesh was the cause of or injury any more than the highway barrier that you run into while obviously involved in your injuries was the cause of your injuries and in this case however if a doctor had implicated mash that that would be one thing but because of fraudulent concealment by the defendants these three doctors didn't know until they were deposed after she filed her lawsuit that mesh even caused these kinds of injuries now the defendant says dr patel actually specifically told her that the  causing her pain that is not what the record shows dr patel said he doesn't remember any conversation with her at all he also said he thought her problems were caused by either bad unitas or surgery he did say at one point that he thought that the presence of the mesh was causing pain based on whatever caused her injuries and that she should have the measure removed but that's a far cry from causation as this court held in rogers and alvarado and in egg him and because one of the causes of  i please the court your honors this is the first time that this court has ever had a case regarding the florida statute a limit where the testimony  in november of two thousand and five is because you believed it was causing pain with sex her answer was and the infections she added and the infections to that question so the lawyer followed up and asked her again so so at this point in november of two thousand and five you understood that obtuse was causing both pain with sex and the infections and her answer was and the infections wouldn't go away yes that's page one twenty three of her f it is not under florida law your honor and nasa important in this case this case is that we decided under florida law and under florida law and knowledge of a defect in the product is not required to trigger the statue well taken you can have liability in the absence of a defect potentially for what the negligent conduct so if if the  the manufacturer perhaps was negligent in some way and the product was not necessarily defective you could have liability and is there any suggestion that that's a basis claim by anybody here sure i think there's a they're typically not good at all of these cases sort of have a menu of claims and them and that would take legit design yes negligent failure to warn as an example so that that doesn't absolutely under the florida supreme court in the bogor decision that's a ninety one florida supreme court case and by the way your honors that case strikingly it was not mention and either of the bogor got a fair number of cases that are hard to pronounce so i apologize but bogor the question is does the plaintiff have notice of the possible connection between the product and injury and you have notice if you've had an injury that is distinct or dramatic and of course you are aware that you've been used to the product here there was a dramatic  and that there be a possible invasion of legal rights correct exposure does not in and of itself establish awareness of possible invasion of the plaintiff's legal rights doesn't that is not enough correct your honor what you need is you need an injury that is distinct or dramatic enough and the exposure to the product you need both and you need anough information so that you are weird constructively or actually of a possible invasion of the legal rights right correct and incorrect correct and beyond that so it would not be enough if someone had one of these tapes implanted there was a dramatic change in condition because there you've had exposure and there you've had a dramatic change in condition that alone doesn't do it i would disagree your honor you think it does i do i think so when you read out of the bogor of decision the following language in part plaintiffs need only have notice through the exercise of reasonable diligence of the possible invasion of their legal rights you're eliding that no i'm not i'm saying florida including that court florida courts have said what do we mean by having notice of a possible legal invasion of our rights what do we mean by that here's  by possible invasion of legal rights we mean that you must have notice of an injury that is distinct and dramatic and exposure to a product that's what we mean when we use that well then let's talk about which takes that language and then goes on to say this speaks clearly to causation that ingestion of the drug was a contributing cause of plaintiff's injuries right and you can't get simply from exposure dramatic change of condition sure sure because in babbage this poor guy he took a drug for a number of years and he experienced liver damage only after he stopped taking the drug like a few months after and the drug that he was taking was for cholesterol when there was no suggestion that cola cholesterol drug had anything to do with the liver and he finds out a few months after he stops taking the culture is done shows staph infection start the statute of limitations and extent of the product as to the product i probably need to know a little bit more information but based on just those facts rahner i don't think so but we have slots missing what the physicians were treating when she went in and that's the critical distinction with this plane what they were treating at the time of the employer to what they were treating at the time it went bad whatever it was when it at the time that it went bad so every sink so they're treating in a raving a raving infection but they're treat a general systemic infection is it's my understanding of how you describe the she went into the doctor four or five times and each time the physicians honed in on one place one place only where the op tape was in that's why she understood that that was causing the infections she knew it she understood it and she testified to it it starts the statute on the fact absolutely if absolutely absolutely does and that's true in florida i'm sorry in florida it does in florida i want to be clear about that now in minnesota under this court's ruling in rogers i think it's a closer call have to know a little bit more under minnesota law than you do under florida law and when we look at all of the decisions in florida we can look at steiner oliver which is judge goodwin in west virginia who has another masham video ferez which is a paxil case parse cell which is an ob take case decided by a florida district court judge we cited all of those cases talk about possible causal connection is it on the menu of causes is that a possible cause of connection when you look at minnesota law you see nothing of that sort you see nothing under the minnesota case that says adopted if that really is florida law means that the first sign of trouble in florida you sue the manufacturer not the first sign of trouble so first sign of dramatic change of condition sue the manufacturer even if you have no reasonable basis to think that the product is actually defective and there are alternative hypotheses as to what's going on well it right yes but i think that i don't think i'm positing a role that is the rule when you look at the bogor facts this child had leukemia and was being treated with math attracts eight and in that particular case they even went and saw lawyer in the lawyer told them you don't have a claim for against the project and then in addition the physician threw them off the trail as well by saying that the product wasn't connected in the supreme court  florida said the law in florida is if you have had a dramatic can change a condition which is absolutely what happened in that that young child who had leukemia had a dramatic change in his condition that was not expected and if you know that you've been exposed to the product that's it that's the trigger you have to start doing something you can't sit on your couch and wait for it you must do something at that point in time that's florida law minnesota law is a little bit different and some of these other jurisdictions are a little bit different but i would urge this court to take a look at its decision way back related to illinois law which was the curtis case was one of the first cases involving obviate under anything other than hold that the requirements are an injury that is distinct and dramatic and exposure to the product given a possible connection that then has to certify such as i understand the problem here that means you've got enough to file a lawsuit so then the question becomes whether there's something in between it it's a possible doesn't work and it does but that means that there were there's no barrier at all because when you have the then you could state a case with probable cause in other words to get to bypass a malicious prosecution  claim that doesn't work because it writes a statute out of the picture so the question becomes if it's not possible that it has to be some point in between and the question then becomes what kind of standard and i am familiar with the florida cases and i know about the possible part i don't know how to write a definition of when and between possible and probable cause to withstand malicious prosecution charge and file it would be invalid goes to the clock starts in between of possible and enough to file a lawsuit it starts running i think that coins already been flipped or honors i don't know i don't know how to express that in words i think the coins already been flipped by the florida supreme court and they said hey our rule bar the possible maybe i don't think they have now so maybe you could help me with this notion that if we were to conclude that a reversal is warranted here there's no more statute of limitations i take it you'd agree that if four years from today an adenike lee situated plaintiff came in and filed suit and cited a reversal in this case as a basis for arguing that a statute and a crude yet your response would be something like this everybody's known about the product liability alleging that it is defective for years there's been an m d l for five six seven years there's been all kinds of litigation about the facts and a plaintive who was exercising reasonable diligence would certainly have known in two thousand and seventeen that there was a very substantial case that it was a defective product and the statute began to run no later than two thousand and seventy that would be your position wouldn't thousand and eight well there's a good argument about construct about it well i may well i don't know the construct of biology even plays a role in this it can so it's whether the plaintiff knew or should have well i think you're not been someone who watches t v all day you can't miss your charge with reasonable diligence your honour's i think that's the standard in even in eg ny on the plaintiff in that case testified she did bunch of research on her own in two thousand and eight two mr walker let me address that last argument in a second but i want to correct the record on what the plaintiff actually testified to in the series of questions that counsel cited she was being asked about her sexual pain and she wanted to emphasize that he kept ignoring infection so he puts the word cause in the question she says but then faction don't forget the infection yes she's not answering yes i knew about causation then she's saying you've left out the infection and that's an important thing to include this is what she said on page one fifty four of her testimony question when you started experiencing complications the infections in erosions and pain what did you think was causing them answer well i did no i didn't know what caused it other then and then i thought well maybe you know i was having an allergy to it or rejecting you know my body was rejecting it or something something that could be easily corrected have a taken out and it wouldn't have it any more if there's a conflict i don't think there's a conflict in your testimony when you consider the exit counsel cited in context but there is that's not for this court to decide or the court below it's for a jury to decide now with regard to this m t l question the courts have pretty uniformly said that inquiries of a physician are due diligence and in this case she inquired of three different positions the three different positions specialized in implanting an x planting oh bob tape didn't know these risks of obviate can we really attribute that knowledge to a lay person and do we expect her to know about the creation of  two thousand and eight we certainly don't expect her the minute she has some problems or pain to hire a lawyer and so i go out and scour the universe for what may be potential causes she didn't know she had the right to sue anybody do we ask people every time they experience a pain of some time to go out and hire a lawyer make sure there's not an m d l out there somewhere on it remind me on the record what did prompt her disadvantage if it wasn't it was the advertisements that have been proliferating on television and i don't disagree that if there were a lawsuit filed at this point in time extent the plaintiff saw the commercial i believe that would be true it may very well be that this court can conclude that the commercials have become so pervasive that she was charged with that knowledge other way than that would require this court to assume that everyone as your honor pointed out watches t v which is not necessarily true coming so that would there's nothing novel about this i mean there are probably two hundred constructive knowledge cases involving so few securities fraud claim about when there's enough out there in the public press about a company to suit you so that a plate of who's charged with do with with constructive knowledge of a misstatement that may be true there is no evidence in this record that there was any kind of publicity  the not you're not suggesting that you you misapprehend the point of my question which was to indicate that i'm very skeptical about an argument that a reversal here is the equivalent of abolishing the statute of limitations her doctors had not been fraudulent deceived by the concealment that began before she took the product but continued long afterwards which is all that's required by the law not that it be not that the fraud occur after her injury but that it begin that it continue after injury and here none of her doctors knew these risks even at the time they were deposed so we have a plaintiff's who is the defendant is saying she'd have more knowledge than three different doctors who implant an expert o b j that she should have been aware of an m d l proceeding on the day it was created in two thousand and eight that she should have somehow hired a lawyer to go out there and scare or the records to see what was what existed and and that's certainly not what the law requires in this the the that the defendant claims we don't certain certainly the borg decision has been interpreted by every appellate court in florida as requiring knowledge of a causal relationship every case defendant cite says the same thing the steiner vs c begin case st petersburg vs total containment vs armor pharmaceuticals all cases cited by the defendant all saying knowledge of a causal relationship is required that's why the court said that the injury has to be something distinct and unusual from the plaintiff to probable cause i'm sorry your honor how close is that to probable cause well i think it has to be knowledge of a since they have most of the have to file a lawsuit probably ok it's not good leads to investigate that's my problem well here there was no knowledge