UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-1454

SHARRENE TIMOTHY; THOMAS TIMOTHY,

Plaintiffs - Appellants,

v.

BOSTON SCIENTIFIC CORPORATION,

Defendant - Appellee.

Appeal from the United States District Court for the Southern 

District of West Virginia, at Charleston. Joseph R. Goodwin, 

District Judge. (2:12-cv-05950)

ARGUED: October 26, 2016 Decided: December 16, 2016

Before THACKER, and HARRIS, Circuit Judges, and Gerald Bruce 

LEE, United States District Judge for the Eastern District of 

Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion. 

ARGUED: Jessica Ann Kasischke, FLEMING, NOLEN & JEZ, L.L.P., 

Houston, Texas, for Appellants. Daniel Brandon Rogers, SHOOK, 

HARDY & BACON L.L.P., Miami, Florida, for Appellee. ON BRIEF:

Karen Beyea-Schroeder, Sylvia Davidow, Kelsey L. Stokes, 

FLEMING, NOLEN & JEZ, L.L.P., Houston, Texas, for Appellants. 

Michael Bonasso, Charleston, West Virginia, Lindsey M. Saad, 

FLAHERTY SENSABAUGH & BONASSO PLLC, Morgantown, West Virginia, 

for Appellee. 
2

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

Sharrene Timothy and Thomas Timothy,1 Utah residents,

(collectively, “Appellants”) filed suit against Boston 

Scientific Corporation (“Appellee”) alleging defects in 

Appellee’s transvaginal mesh products. The district court 

granted summary judgment in favor of Appellee, concluding that 

Appellants’ claims are barred by Utah’s two year statute of 

limitations for product liability actions. For the following 

reasons, we affirm. 

I.

On June 30, 2009, Dr. Steven Johnson implanted Mrs. 

Timothy with Boston Scientific’s transvaginal mesh products to 

treat stress urinary incontinence. Prior to the surgery, Dr. 

Johnson advised Mrs. Timothy that he would use Boston 

Scientific’s products, informed her of the “pros, cons, risks, 

and benefits of mesh,” and warned of potential side effects such 

as erosion. J.A. 462; see id. at 134, 473.2 

 1 Thomas Timothy’s claims are derivative of his wife’s, and 

we refer only to Sharrene Timothy unless otherwise noted. 

Because we find Mrs. Timothy’s claims are time-barred, Mr. 

Timothy’s suit must also be dismissed as it is “subject to the 

same defenses, limitations, immunities, and provisions 

applicable to the claims of the injured person.” Utah Code 

§ 30-2-11(4)(b).

2 Citations to the “J.A.” refer to the Joint Appendix filed 

by the parties in this appeal.
4

According to Mrs. Timothy, approximately six or seven 

months later, she began experiencing significant pelvic pain,

dyspareunia, blood in her urine, and a scratching sensation in 

her vagina. Because of her problems, on April 19, 2010, Mrs. 

Timothy went to see Dr. Johnson. Dr. Johnson examined Mrs. 

Timothy and found mesh erosion and told her he could “feel the 

mesh.” J.A. 138. Dr. Johnson subsequently performed a second 

surgery to repair the mesh. However, according to Appellants, 

Mrs. Timothy continued to suffer pain, an itching sensation in 

her vagina, infections, urinary incontinence, and dyspareunia. 

Then, in late 2011, Mrs. Timothy saw an attorney 

television advertisement about possible complications resulting

from transvaginal surgical mesh. After contacting one of the 

law firms advertising their services, on September 26, 2012 --

more than three years after Mrs. Timothy’s original surgery --

Appellants filed action against Appellee as part of the MultiDistrict Litigation (“MDL”) in the Southern District of West 

Virginia claiming injuries from allegedly defective mesh. 

Following discovery, Appellee moved for summary judgment,

arguing Mrs. Timothy’s claim accrued more than two years prior 

to her filing. The district court granted summary judgment,

concluding that Appellants’ claim was barred by Utah’s 

applicable two year statute of limitations for product defect 

claims. Appellants timely appealed.
5

II.

We review de novo a district court’s grant of summary 

judgment. See RLM Commc’ns, Inc. v. Tuschen, 831 F.3d 190, 195 

(4th Cir. 2016). 

III.

A.

Utah’s choice of law principles control because the 

actions forming the basis of the lawsuit occurred there. See In 

re Temporomandibular Joint (TMJ) Implants Prod. Liab. Litig., 97 

F.3d 1050, 1055 (8th Cir. 1996). Utah law applies the most 

significant relationship test to determine the applicable law. 

See Waddoups v. Amalgamated Sugar Co., 54 P.3d 1054, 1060 (Utah 

2002) (“Having concluded, for purposes of the choice of law 

analysis, that plaintiffs’ claims sound in tort, we next 

determine which state ‘has the most significant relationship to 

the occurrence and the parties.’”) (quoting Restatement (Second) 

Conflict of Laws § 145(1) (1971)). Because the surgery and 

injury occurred in Utah, we find Utah has the most significant 

relationship and therefore apply Utah’s substantive law. 

The Utah Products Liability Act (“UPLA”) creates a two

year statute of limitations:

A civil action under this part shall be 

brought within two years from the time the 

individual who would be the claimant in the 
6

action discovered, or in the exercise of due 

diligence should have discovered, both the 

harm and its cause.

Utah Code § 78B-6-706 (2008). 

Under Utah law, “all that is required to trigger the 

statute of limitations is sufficient information to put 

plaintiffs on notice to make further inquiry if they harbor 

doubts or questions.” Macris v. Sculptured Software, Inc., 24 

P.3d 984, 990 (Utah 2001). Once a person is put on notice to 

inquire further, the person is imputed with knowledge of 

“everything to which such inquiry might have led.” Pioneer 

Builders Co. of Nev. v. K D A Corp., 292 P.3d 672, 679 (Utah 

2012). A claim accrues when a person knows or should know all 

of the information necessary to state her claim for relief. See

Bank One Utah, N.A. v. W. Jordan City, 54 P.3d 135, 137-38 (Utah 

Ct. App. 2002).

For a products liability action, the claim accrues

when a person knows or should know: (1) the injury; (2) the 

identity of the maker of the allegedly defective product; and 

(3) a possible causal relation between the product and the 

manufacturer. See Aragon v. Clover Club Foods Co., 857 P.2d 

250, 252-53 (Utah Ct. App. 1993). 

Appellants argue that the causal relationship required 

for a claim to accrue is that the product be the cause-in-fact 

of an injury. Even assuming their argument is correct, we 
7

conclude that Appellants’ claims accrued on April 19, 2010, and 

are therefore barred by the applicable statute of limitations.3 

B. 

Even before her April 19, 2010 doctor visit, Mrs. 

Timothy was on notice of her injury and the identity of the 

product manufacturer. Before surgery, Dr. Johnson told Mrs. 

Timothy he was using products manufactured by Boston Scientific 

in the surgery and warned her of possible erosion. And, prior 

to the April 19, 2010 visit, Mrs. Timothy had experienced

bleeding, pain, and an itching sensation, which constituted her 

injury, for at least three months. 

Moreover, during the visit, Dr. Johnson put her on 

notice of the possible causal connection. Specifically, Dr. 

Johnson told Mrs. Timothy he could “feel the mesh” and that the 

mesh “was causing the bleeding.” J.A. 139 (emphasis supplied). 

As a result, Dr. Johnson recommended a second surgery to remove 

and replace the mesh. His office notes identify that there was 

already “some erosion of her mesh.” Id. at 153. Thus, at least 

as of the April 19, 2010 doctor visit, Mrs. Timothy was on 

 3 Appellants raise a series of additional arguments relating 

to alleged procedural errors in the district court’s grant of 

summary judgment. None of these arguments have merit. The 

district court appropriately granted summary judgment to 

Appellee after finding there were no genuine issues of material 

fact. See Fed. R. Civ. P. 56(a). 
8

notice of: (1) her injury; (2) the identity of the defective 

product’s manufacturer; and (3) the possible causal connection 

between her injuries and the mesh, which required her to make 

further inquiries. See First Am. Title Ins. Co. v. J.B. Ranch, 

Inc., 966 P.2d 834, 837 (Utah 1998).

Nevertheless, Appellants argue that inquiry notice was 

not triggered until they saw an attorney television 

advertisement. However, it seems highly unlikely a lawyer’s

advertisement provided any new medically relevant information 

about “the connection between [Mrs. Timothy’s] injuries and the 

actual cause” than that which had already been provided by a 

medical professional. Appellants’ Br. 3. Her doctor had 

already told her the mesh was “causing the bleeding” and warned 

of side effects from the mesh, including erosion. J.A. 141. 

C.

Mrs. Timothy had a duty to inquire starting on at 

least April 19, 2010, and this court must now determine what a 

reasonable inquiry would have uncovered. See Pioneer Builders 

Co. of Nev., 292 P.3d at 679. For starters, even the most basic 

inquiry would have led to the 2008 Food and Drug 

Administration’s (“FDA”) warning about transvaginal mesh.4 The 

 4 That the FDA provided a notification in 2008 and the 

content of that notification are facts that can be judicially 

noticed because they “can be accurately and readily determined 

(Continued)
9

FDA Notification warned “Serious Complications Associated with 

Transvaginal Placement of Surgical Mesh in Repair of Pelvic 

Organ Prolapse and Stress Urinary Incontinence,” and it 

cautioned that transvaginal mesh was linked to “pain, urinary 

problems, and recurrence of prolapse and/or incontinence.” FDA 

Notification.5 Mrs. Timothy experienced all of these symptoms, 

and, indeed, her doctor had already told her mesh was causing 

her to bleed. See J.A. 140 (“Q: So did Dr. Johnson tell you 

that he believed that the mesh was what was causing you to 

bleed? A: Yes.”). The FDA Notification also noted that, in 

unusual cases, there were reports of “a significant decrease in 

patient quality of life due to discomfort and pain, including 

dyspareunia.” Mrs. Timothy also experienced these symptoms. 

Because the FDA had issued an official notification 

about the link between the product Mrs. Timothy used and the 

injuries she suffered, we have no trouble concluding Mrs. 

 

from sources whose accuracy cannot reasonably be questioned.” 

Fed. R. Evid. 201(b)(2); see Food and Drug Admin., FDA Public 

Health Notification: Serious Complications Associated with 

Transvaginal Placement of Surgical Mesh in Repair of Pelvic 

Organ Prolapse and Stress Urinary Incontinence (Oct. 20, 2008), 

http://www.fda.gov/MedicalDevices/Safety/AlertsandNotices/Public

HealthNotifications/ucm061976.htm (“FDA Notification”) (saved as 

ECF opinion attachment).

5 Indeed, the FDA was even more definite about potential 

health complications than the attorney advertisements Mrs. 

Timothy saw. 
10

Timothy had notice that the mesh was the cause-in-fact of her 

injuries since her doctor visit on April 19, 2010. As such, her 

action filed more than two years later on September 26, 2012, is 

time-barred. 

IV.

For the foregoing reasons, the judgment of the 

district court is affirmed.

AFFIRMED