[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 16-14364

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D.C. Docket Nos. 4:08-md-02004-CDL, 4:13-cv-00135-CDL

ANN MARIE BERGIN,

 Plaintiff-Appellant,

versus

MENTOR WORLDWIDE LLC, et al.,

 Defendants-Appellees.

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Appeal from the United States District Court

for the Middle District of Georgia

________________________

(September 20, 2017)

Before JORDAN and JULIE CARNES, Circuit Judges, and SCHLESINGER,∗

District Judge.

PER CURIAM:

 ∗ Honorable Harvey E. Schlesinger, United States District Judge for the Middle District of 

Florida, sitting by designation.

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CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR 

THE ELEVENTH CIRCUIT TO THE SUPREME COURT OF TEXAS 

PURSUANT TO ARTICLE V, § 3–c(a) OF THE TEXAS CONSTITUTION

TO THE SUPREME COURT OF TEXAS AND ITS HONORABLE JUSTICES:

This appeal arises from an allegedly defective surgical mesh implant. The 

question to be answered concerns whether under the Texas “discovery rule” a 

claim accrues for purposes of starting the applicable statute of limitations period 

when a plaintiff knows, or has reason to know, that there is a connection between 

her injury and the defendant’s product or whether instead accrual (and the 

corresponding start of the limitations period) occurs only when the plaintiff also 

has reason to know that the manufacturer acted wrongfully or negligently in its 

manufacture of the product. 

The District Court concluded that the former interpretation of Texas law was 

correct, and therefore granted summary judgment in favor of Mentor Worldwide 

LCC, the Appellee in this case. The Appellant, Ms. Ann Bergin—a resident of 

Texas—argues that accrual requires discovery of both the injury and its negligent 

cause. Thus, she avers, the District Court erred in its application of Texas law. 

To resolve this appeal, we must decide which of the above positions is 

correct, but that answer depends on an unresolved question of Texas law. We 

therefore certify this question of law, based on the factual background recited 

below, to the Supreme Court of Texas and respectfully request its guidance. 

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I. BACKGROUND AND PROCEDURAL HISTORY

Mentor is the developer of a suburethral mesh sling product called ObTape 

Transobturator Tape.

1

 In September 2005, Ms. Bergin was implanted with Obtape 

by her doctor—Keith Grisham—to relieve her urinary incontinence and other 

medical issues. A few months later, Ms. Bergin began to experience complications 

(pain, odor, and vaginal discharge, among other things) with the mesh sling. 

In March 2006, Dr. Grisham informed Ms. Bergin that the mesh sling was 

partially exposed. Dr. Grisham surgically removed a piece of the exposed ObTape 

later that month. The complications nonetheless persisted, and Ms. Bergin opted to 

undergo another surgery in September 2006. This later procedure resulted in the 

removal of some granulated tissue and infected “mesh material.” 

The record indicates that by September 2006, Ms. Bergin was aware that 

there could be a connection between her injury and the OBTape sling. In his 

deposition, Dr. Grisham stated that he “probably” discussed the possibility with 

Ms. Bergin that her symptoms were related to the mesh sling exposure. Ms. 

Bergin testified that, based on conversations with her doctor, she thought her body 

was rejecting the sling. She understood the two surgical procedures were to 

 1 The Court recites facts in this opinion solely for purposes of reviewing the District Court’s 

rulings on the proceedings below. Thus, these “are the facts for present purposes, but they may 

not be the actual facts.” Kelly v. Curtis, 21 F.3d 1544, 1546 (11th Cir. 1994) (quoting Swint v. 

City of Wadley, 5 F.3d 1435, 1439 (11th Cir. 1993)) (internal quotation marks omitted). 

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resolve her medical complications. However, there was no discussion between 

Ms. Bergin and her doctor regarding a possibility that the ObTape was defective or 

that the manufacturer may have acted negligently.

Though Ms. Bergin’s bleeding and discharge symptoms began to improve 

after the September surgery, she continued (and continues) to suffer from other 

symptoms which she attributes to ObTape. Seven years later, on May 14, 2013, 

Ms. Bergin filed her complaint against Mentor directly in the District Court for the 

Middle District of Georgia, attempting to join other related claims consolidated in 

multidistrict litigation proceedings. 

As the case progressed, Mentor filed a motion for summary judgment, 

arguing that Ms. Bergin’s claims were time-barred under Texas law,2 which 

subjects claims for personal injury to a two year statute of limitations. Mentor 

argued that Ms. Bergin’s claims accrued in 2006, when Dr. Grisham linked some 

of her symptoms to ObTape and she therefore could have become aware of a 

connection between the ObTape and her injury. Ms. Bergin, however, insisted that 

her claims did not accrue until 2013, when she saw a television advertisement 

alleging that ObTape was defective and was thereby reasonably alerted for the first 

time to the possibility that the manufacturer may have been negligent. 

 2

 For the purposes of the direct-filed cases, the parties agreed that the District Court would apply 

the choice of law rules of the state where the plaintiffs resided at the time they filed their 

complaints. Ms. Bergin is a Texas resident, and the circumstances giving rise to her claims all 

occurred in Texas. 

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The District Court rejected Ms. Bergin’s argument as an incorrect 

formulation of Texas’ discovery rule, which, the court concluded, does not require 

that a plaintiff have knowledge that a product manufacturer has committed a 

wrongful act before a claim can accrue. Instead, the court interpreted the Texas 

discovery rule as providing that a claim accrues (and the limitations period begins 

to run) when the plaintiff is reasonably put on notice of a causal connection 

between the product and the injury. The District Court concluded that Ms. Bergin 

connected her symptoms to the ObTape in 2006. Thus, the District Court 

reasoned, a reasonable person would have taken some action at that point to follow 

up on whether her injuries were caused by a defect in the ObTape. See Bergin v. 

Mentor Worldwide, LLC, No. 4:13-cv-135, 2016 WL 3049491, at *1 (M.D. Ga. 

May 27, 2016); Bergin v. Mentor Worldwide, LLC, No. 4:13-cv-135, 2016 WL 

1493534 at *3–4 (M.D. Ga. April 14, 2016). This appeal followed.

II. DISCUSSION

As noted, Ms. Bergin argues that the District Court misinterpreted Texas’ 

discovery rule. According to Ms. Bergin, the limitations period does not 

commence until a plaintiff discovers, or should have discovered, all the elements 

of a cause of action. Put differently, she asserts that her claim could not have 

accrued until she became aware that her injury was the result of negligence on the 

part of Mentor. 

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Interpretation of Texas’ discovery rule is a question of law, and subject to de 

novo review. Arthur v. King, 500 F.3d 1335, 1339 (11th Cir. 2007) (“[W]e review 

the underlying decisions regarding questions of law de novo . . . .”) (citing 

Preferred Sites, LLC v. Troup Cty., 296 F.3d 1210, 1220 (11th Cir. 2002)); United 

States v. Garrett, 3 F.3d 390, 390 (11th Cir. 1993) (“Questions of law are reviewed 

de novo.”). 

“In most cases, a cause of action accrues when a wrongful act causes an 

injury, regardless of when the plaintiff learns of that injury or if all the resulting 

damages have yet to occur.” Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex. 

1998). However, a judicially crafted exception—the discovery rule—applies in 

instances “when the nature of the injury incurred is inherently undiscoverable and 

the evidence of injury is objectively unverifiable . . . .” Id. at 36 (quoting 

Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1994)) 

(internal quotation marks omitted). There is no dispute that the discovery rule 

applies in this case.

In interpreting the Texas discovery rule, federal courts have ruled 

inconsistently in deciding whether a plaintiff’s claim accrues only when the 

plaintiff is placed on reasonable notice that the manufacturer of a product has acted 

negligently or whether instead accrual can occur earlier, when the plaintiff is 

merely placed on notice of a causal connection between use of the product and the 

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injury, regardless of any wrongdoing by the manufacturer. This present litigation 

is a prime example of that inconsistency. The district court here, which is 

presiding over multi-district product liability litigation concerning the ObTape, 

concluded that the statute of limitation begins running under Texas law as soon as 

a plaintiff is reasonably placed on notice that use of the product may have caused 

her injury. On the other hand, another district court, presiding over other multidistrict product liability cases concerning a different manufacturer of a transvaginal 

surgical mesh sling, has adopted the approach advocated by Ms. Bergin. See 

Hovey v. Cook Inc., 97 F. Supp. 3d 836, 844 (S.D.W. Va. 2015) (denying summary 

judgment and stating, “because none of [the plaintiff’s] doctors identified a defect 

in the [mesh product] as the cause of her injuries, a jury could find that [the 

plaintiff] did not possess facts that would lead a reasonable person to further 

investigate into wrongdoing until 2013, when [she] saw an Internet 

advertisement.”); see also In re Ethicon, Inc., No. 2327, 2016 WL 3067752, at *3 

(S.D.W. Va. May 31, 2016) (denying summary judgment where the plaintiff was 

unaware of a connection between the alleged wrongful act and her resulting 

injury).

As to the Fifth Circuit, which is the federal circuit in which Texas is located, 

that court has likewise issued inconsistent rulings. In Timberlake v. A.H. Robins 

Co., 727 F.2d 1363 (5th Cir. 1984), the plaintiff sued the manufacturer of a Dalkon 

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Shield intrauterine device (IUD) that allegedly caused her injury, having developed 

symptoms in 1978, but not suing until 1981 when she saw a television program 

suggesting that the manufacturer may have been negligent in its manufacture and 

sale of the product. Concluding that the plaintiff had failed to sue within the 

applicable Texas statute of limitations, the court rejected her argument that “the 

statutory period should be tolled until the plaintiff learns that the defendant’s 

conduct may have been wrongful,” holding that the discovery rule did not apply 

and that the statute of limitations began in 1978 when the plaintiff “knew of her 

injury and its cause.” Id. at 1365, 1366. Stated more formally, in response to 

plaintiff’s argument “that Texas law applies a three-pronged analysis with regard 

to the discovery rule, and that all three elements—injury, causation in fact, and 

legal injury—must coalesce before the statute of limitations begins to run,” the 

court was “not persuaded that this is an accurate statement of the applicable law.” 

Id. at 1365. 

Nevertheless, in that same year, the Fifth Circuit issued two other opinions 

that reached a different result on similar facts. In Woodruff v. A.H. Robins Co., 

742 F.2d 228 (5th Cir. 1984), the plaintiff developed a severe pelvic infection 

following the insertion of an IUD, after which the IUD was removed in 1973 and 

the plaintiff underwent a hysterectomy. She, however, did not file suit until 1981 

when she read a newspaper article suggesting a possible causal connection between 

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the Dalkon Shield and her injuries. The Fifth Circuit rejected the defendant’s 

argument that her lawsuit was time-barred, relying on Mann v. A.H. Robins Co., 

741 F.2d 79, 81 (5th Cir. 1984), which held that a claim does not accrue under the 

Texas discovery rule until a plaintiff learns of her injury’s negligent cause. The 

court in Woodruff concluded that the plaintiff’s claim had not accrued until a 

newspaper article alerted her to the possible connection between the Dalkon Shield 

and her physical injuries. 

As to Texas court decisions, Ms. Bergin relies greatly on the decision of the 

Texas Supreme Court in Childs, which explained accrual under the discovery rule 

as follows: “Under this rule . . . a cause of action does not accrue until a plaintiff 

knows or, through the exercise of reasonable care and diligence, ‘should have 

known of the wrongful act and resulting injury.’ ” 974 S.W. 2d at 37 (quoting S.V. 

v. R.V., 933 S.W.2d 1, 4 (Tex. 1996)) (emphasis added). Ms. Bergin argues that 

the above emphasized language in that case establishes that a claim cannot accrue 

under the discovery rule without some knowledge of the wrongful act. As noted, 

the district court here concluded that this language is merely dicta. 

The year after issuance of Childs, the Supreme Court of Texas issued a 

decision that arguably supports a less expansive reading than Ms. Bergin gives to 

Childs. In 1997, the Texas Court of Appeals had noted that the trend in Texas was 

towards requiring awareness of a wrongful act:

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Courts have employed several formulations to describe 

when a cause of action subject to the discovery rule 

accrues. Probably the most common formulation is the 

one noted by the appellee: the cause of action accrues 

when “the plaintiff discovers, or through the exercise of 

reasonable care and diligence should discover, the nature 

of his injury.” Id. However, Willis v. Maverick, 760 

S.W.2d 642, 646 (Tex. 1988), holds that a cause of action 

accrues when “the claimant discovers or should have 

discovered through the exercise of reasonable care and 

diligence the facts establishing the elements of a cause of 

action.”

. . . . 

In recent cases, the Texas Supreme Court has employed 

a new formulation: a cause of action accrues when a 

“plaintiff knew or in the exercise of reasonable diligence 

should have known of the wrongful act and resulting 

injury.” Diaz v. Westphal, 941 S.W.2d 96, 99 (Tex.

1997); S.V., 933 S.W.2d at 4. This new formulation 

makes it clear that a cause of action does not accrue 

merely because a plaintiff becomes aware of an injury. In 

fact, courts have consistently held that a cause of action 

does not accrue until a plaintiff becomes aware of the 

wrongful act causing the injury. 

Harrison Cty. Fin. Corp. v. KPMG Peat Marwick, LLP, 948 S.W.2d 941, 945–46 

(Tex. App. 1997), rev’d sub nom. KPMG Peat Marwick v. Harrison Cty. Hous. 

Fin. Corp., 988 S.W.2d 746 (Tex. 1999). 

On review, however, the Texas Supreme Court disagreed with the lower 

court’s articulation of the discovery rule:

[T]he court of appeals erroneously concluded that in 

recent decisions this Court employed a “new 

formulation” of the discovery rule. The court of appeals 

held that under this “new formulation,” a claim does not 

accrue until plaintiff knows not only of the injury, but the 

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specific nature of each wrongful act that may have 

caused the injury. This is incorrect. The rule in those 

cases was, as it is in this one, that accrual occurs when 

the plaintiff knew or should have known of the 

wrongfully caused injury.

KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 749 

(Tex. 1999). 

One could read KPMG as holding that a plaintiff’s awareness of a wrongful 

act (or lack thereof) is not necessary to trigger accrual of the claim. But KPMG’s

language could also be read to imply that some knowledge of wrongful conduct is 

required before a claim can accrue; that is, while awareness of a specific design 

defect in a defendant’s product is not required for accrual, some generalized 

awareness of the defendant’s wrongdoing is. Moreover, KPMG was not a products 

liability case. Indeed, as noted by the district court in Hovey, “the Texas Supreme 

Court has yet to address the narrow issue of the discovery rule’s applicability in the 

context of implanted medical devices.” Hovey, 97 F. Supp. 3d at 842 n.3. 

The cases decided post-KPMG shed minimal light on the matter. Some 

cases seem to support Mentor’s position. See, e.g., Newsom v. Brod, 89 S.W.3d 

732, 736 (Tex. Ct. App. 2002) (“The plaintiff need not know the specific nature of 

each wrongful act that may have caused the injury.”) (citing KPMG, 988 S.W.2d at 

749); Alvarado v. The Abijah Grp., Inc., No. 03-13-00060-CV, 2015 WL 4603542, 

at *3 (Tex. Ct. App. July 29, 2015) (“The discovery rule does not . . . toll 

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limitations until the plaintiff discovers all of the elements of a cause of action.”)

(citing KPMG, 988 S.W.2d at 749); Bruning v. Hollowell, No. 05-13-01033-CV, 

2015 WL 1291378, at *3 (Tex. Ct. App. Mar. 23, 2015) (“[E]ven if the discovery 

rule applies, it defers accrual of the causes of action only until the plaintiff 

discovered or in the exercise of reasonable diligence should have discovered the 

wrongful injury.”) (citing KPMG, 988 S.W.2d at 749). 

On the other hand, some cases seem to support Ms. Bergin’s position by 

continuing to employ the “should have known of the wrongful act” language. See, 

e.g., Holland v. Thompson, 338 S.W.3d 586, 593 (Tex. Ct. App. 2010). And other

cases cite the language but then disregard or do not apply it. See, e.g., Rodriguez v. 

Crowell, 319 S.W.3d 751, 757 (Tex. Ct. App. 2009) (plaintiff’s claim accrued 

under discovery rule even though none of plaintiff’s physicians initially connected 

her medical condition to its negligent cause). Thus, the state of the law on this 

issue remains unclear. 

“When substantial doubt exists about the answer to a material state law 

question, a federal court should avoid making unnecessary state law guesses 

and . . . offer the state court the opportunity to explicate state law.” Salinas v. 

Ramsey, 858 F.3d 1360, 1362 (11th Cir. 2017) (quoting Forgione v. Dennis Pirtle 

Agency, Inc., 93 F.3d 758, 761 (11th Cir. 1996) (per curiam) (internal quotation 

marks omitted)). “Only through certification can federal courts get definitive 

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answers to unsettled state law questions. Only a state supreme court can provide 

what we can be assured are ‘correct’ answers to state law questions, because a 

state’s highest court is the one true and final arbiter of state law.” Forgione, 93 

F.3d at 761 (internal quotation marks omitted). 

Because the resolution of this appeal, and potentially many other cases 

involved in pending multi-district actions, turns on a material, unsettled state-law 

question, we respectfully seek the assistance and guidance of the Texas Supreme 

Court in answering this question. 

III. QUESTION TO BE CERTIFIED

Accordingly, the Eleventh Circuit respectfully certifies the following 

question of law to the Texas Supreme Court:

In a product liability case, does Texas’ discovery rule 

require a plaintiff to have some knowledge of possible 

wrongdoing on the part of the manufacturer—i.e., a 

causal connection between the injury and the 

manufacturer’s conduct—before the plaintiff’s claims 

can accrue?

To assist the Texas Supreme Court, the entire record in this case, together 

with copies of the briefs of the parties, is transmitted herewith.

QUESTION CERTIFIED.

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