Boneta v. Am. Med. Sys., Inc.

524 F.Supp.3d 1304

Deborah BONETA, et al., Plaintiffs,

v.AMERICAN MEDICAL SYSTEMS, INC., Defendant.

CASE NO. 20-CIV-60409-RAR

United States District Court, S.D. Florida.

Signed March 10, 2021

David Silverman, Jeffrey Louis Haberman, Sarah Jeanine Schultz, Schlesinger Law Offices, P.A., Fort Lauderdale, FL, Brett Drew Lieberman, Edelboim Lieberman Revah Oshinsky, PLLC, Miami, FL, for Plaintiff Deborah Boneta.

David Silverman, Jeffrey Louis Haberman, Sarah Jeanine Schultz, Schlesinger Law Offices, P.A., Fort Lauderdale, FL, for Plaintiff Diego Boneta.

Edward Maurice Mullins, Christina Olivos, Reed Smith LLP, Miami, FL, Barbara R. Binis, Heather A. Ritch Rocks, Pro Hac Vice, Rachel B. Weil, Pro Hac Vice, Regina M. Nelson, Pro Hac Vice, Reed Smith LLP, Philadelphia, PA, Erik W. Legg, Michael J. Farrell, Farrell White & Legg, Huntington, WV, Jared S. Roach, Pro Hac Vice, Reed Smith, LLP, Pittsburgh, PA, for Defendant.

ORDER DENYING DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT

RODOLFO A. RUIZ II, UNITED STATES DISTRICT JUDGE

THIS CAUSE comes before the Court upon Defendant's Motions for Summary Judgment [ECF Nos. 68, 96], filed on May 4, 2020 and August 25, 2020, respectively. Defendant asserts it is entitled to summary judgment on the claims brought by Plaintiffs Deborah and Diego Boneta, which seek redress for injuries allegedly caused by Defendant's vaginal mesh devices. In the first Motion, Defendant maintains that Plaintiffs should be judicially estopped from proceeding on these claims because they failed to disclose the claims as assets in their joint bankruptcy proceeding. [ECF No. 68] ("First Mot."). In the second, Defendant asserts that Plaintiffs’ claims are barred by the statute of limitations because they accrued more than four years before Plaintiffs filed this lawsuit in December 2015. [ECF No. 96] ("Second Mot."). Having considered the parties’ written and oral submissions, the record, and applicable case law, it is hereby

ORDERED AND ADJUDGED that Defendant's Motions for Summary Judgment [ECF Nos. 68, 96] are each DENIED as set forth herein.

BACKGROUND ¹

The analysis of Defendant's arguments requires a detailed recounting of Plaintiffs’ bankruptcy proceedings, as well as Ms. Boneta's medical history—with the judicial estoppel inquiry further requiring the Court to consider the interplay between the two. For the sake of simplicity, the Court sets forth the respective timelines of the bankruptcy proceedings and the medical history separately.

i. Plaintiffs’ Bankruptcy Proceedings

On December 4, 2010, Plaintiffs filed a petition for relief under Chapter 13 of the Bankruptcy Code in the United States Bankruptcy Court for the Southern District of Florida. Def.’s Statement of Uncontested Facts ("Def.’s First SOF") [ECF No. 69] ¶ 1. See also generally In re Boneta , No. 10-47134-JKO (Bankr. S.D. Fla. filed Dec. 4, 2010). On March 19, 2011, the Plaintiffs filed their Second Amended Chapter 13 Plan ("Plan"), which included a disclosure that "Debtor Diego Boneta ha[d] [a] personal injury claim that may result in damages." Def.’s First SOF, Ex. B [ECF No. 69-2]. This personal injury claim resulted from a car accident involving Mr. Boneta, and the Plaintiffs assured the Bankruptcy Court that "[a]ny recovery w[ould] be paid to the unsecured creditors over and above what is already paid in plan." Id. The Bankruptcy Court confirmed the Plan on April 27, 2011. Def.’s First SOF ¶ 4.

On July 11, 2012, Plaintiffs filed a Motion to Approve Personal Injury Settlement wherein they sought approval from the Bankruptcy Court to settle the aforementioned personal injury claim, stating that the settlement proceeds would be used to pay unsecured creditors. Id. ¶ 6. On August 17, 2012, the Bankruptcy Court granted this motion. Id. ¶ 7. On December 31, 2015, the Chapter 13 Trustee filed her Notice of Plan Completion, which verified that Plaintiffs had completed all payments under the Plan. Id. , Ex. F [ECF No. 69-6]. Significantly, Plaintiffs filed their Complaint in the instant case on that very day.

See Compl. [ECF No. 1]. The Bankruptcy Court subsequently entered an Order Discharging Debtors on February 9, 2016, Def.’s First SOF, Ex. G [ECF No. 69-7], and, finally, closed the case via a Final Decree entered on June 28, 2016, id. , Ex. H [ECF No. 69-8]. At no point during the pendency of the bankruptcy proceedings or anytime thereafter did Plaintiffs disclose the existence of the present case to the Bankruptcy Court.

ii. Ms. Boneta's Pertinent Medical History

In April 2006, Ms. Boneta presented to Dr. Daniel Ead with symptoms of stress urinary incontinence as well as pressure on her bladder and pelvis. Def.’s Statement of Uncontested Facts [ECF No. 95] ("Def.’s Second SOF") ¶ 1. Dr. Ead diagnosed Ms. Boneta with mixed urinary incontinence, nocturia, grade 2 cystocele, and female sexual dysfunction. Id. ¶ 2.

On May 30, 2006, Dr. Ead implanted two products manufactured by Defendant American Medical Systems, Inc. ("AMS"): the Monarc Subfacial Hammock (a vaginal sling) to treat the stress urinary incontinence and the Perigree System with IntePro (transvaginal mesh) to treat the cystocele. Pls.’ Counter Statement of Material Facts [ECF No. 92] ("Pls.’ First SOF") ¶ 1. In the months and years following that procedure, she experienced several issues regarding her vaginal health that necessitated recurring visits to various doctors. The relevant medical records and testimony establish the following timeline of post-operation events:

• December 7, 2007 : Ms. Boneta returns to Dr. Ead complaining of a sensation of mesh in her vaginal introitus (the opening of the vaginal canal) as well as some general vaginal discomfort. Def.’s Second SOF, Ex. D [ECF No. 95-4]. Dr. Ead reports that "[s]he otherwise feels good" and the stress incontinence and cystocele were "resolved with surgery." Id. He observes scar tissue in the vaginal introitus and notes that Ms. Boneta "is interested in excision of [the] scar tissue." Id. In her deposition, Ms. Boneta testified that she was experiencing "friction" during intercourse, along with general vaginal pain, at this time, and she stated that Dr. Ead told her it was due to "adhesions or scar tissue." Pls.’ Counterstatement of Material Facts ("Pls.’ Second SOF"), Ex. B [ECF No. 113-4] ("Boneta Dep.") at 101:24-102:15.

• March 27, 2008 : Dr. Ead operates on Ms. Boneta in an attempt to address her symptoms. Def.’s Second SOF, Ex. E [ECF No. 95-5]. In the Operative Report, Dr. Ead notes that the procedure was conducted because following Ms. Boneta's "sling procedure[,]" she "had subsequently developed some scar tissue in the vaginal introitus ... [that] was bothering her intercourse.... She wanted to have this removed." Id. Dr. Ead notes that "[t]here was no extrusion of the mesh[,]" but after loosening and removing the scar tissue, he did remove some synthetic mesh material. Id. One day prior to the surgery, Ms. Boneta signed a pre-admission questionnaire, which described the planned procedure as "transvaginal repair of mesh and scar tissue." Id. , Ex. F [ECF No. 95-6] at 1. On the day of the surgery, Ms. Boneta signed an informed consent form, which stated that the purpose of the procedure was "transvaginal excision of mesh." Id. , Ex. G [ECF No. 95-7] at 1.

• September 11, 2008 : Ms. Boneta returns to Dr. Ead with complaints of dyspareunia (pain during intercourse). Id ., Ex. I [ECF No. 95-9] at 1. Under patient history, Dr. Ead references Ms. Boneta's mesh implant procedure and notes that she "[p]ostop developed extrusion of mesh." Id. Dr. Ead also indicated that he planned to schedule another mesh excision surgery. Id. at 2. He does note that there are no signs of cystocele nor stress incontinence—the symptoms the mesh products were meant to treat. Id.

• October 27, 2008 : Ms. Boneta visits Dr. Jabal Uffelman, another gynecologist, who records that she is suffering from "dyspareunia from vaginal mesh" and appears to note that he will "refer for mesh excision." Id. , Ex. J [ECF No. 95-10].

• February 16, 2009 : Ms. Boneta returns to Dr. Ead with complaints of urgency and incomplete bladder emptying. Def.’s First SOF, Ex. N [ECF No. 69-14] at 1. She also notes a foul odor in her urine. Id. Dr. Ead records the presence of "[v]aginal scar tissue." Id. at 2.

• March 22, 2011² : Ms. Boneta returns to Dr. Uffelman, who diagnoses her with vaginal mesh erosion and documents a plan to "schedule excision of mesh and scar tissue." Def.’s Second SOF, Ex. K. There is no record that either this planned excision—nor the one planned by Dr. Ead at the September 11, 2008 visit—ever occurred, and Ms. Boneta testified that they did not. Boneta Dep. at 79:6-17.

• April 15, 2014 : Ms. Boneta visits Dr. Carol McKenzie for a PAP smear and complains of pelvic, abdominal, and vaginal pain, as well as "[b]ladder mesh worries." Def.’s Second SOF, Ex. L [ECF No. 95-12] at 2.

• July 22, 2015 : Ms. Boneta presents to Dr. Uffelman for her annual gynecology exam. Pls.’ Second SOF, Ex. I [ECF No. 113-9] ("Uffelman Dep.") at 16:1-18. Dr. Uffelman diagnoses her with urge urinary incontinence and refers her to Dr. Amir Shariati. Id. at 20:11-13; id. , Ex. D [ECF No. 113-4] at 1; Pls.’ First SOF, Ex. D [ECF No. 92-4] at 1, 3.

• August 7, 2015 : Ms. Boneta presents to Dr. Shariati, whose record lists as Ms. Boneta's "problems" the following conditions: "[d]ysuria, [u]rge incontinence of urine, [i]ncontinence without sensory awareness, [i]ncreased frequency of urination, [n]octuria, [u]rgent desire to urinate, [l]ower abdominal pain, [and] [m]echanical complication of device." Pls.’ Second SOF, Ex. D at 1. Dr. Shariati recounts that "[p]atient had a sling placed 10 years ago. She states the mesh starting to erode." Id. at 2. Dr. Shariati records a finding of "[m]esh erosion of sling" and "[t]he decision was made to proceed with removal of the eroded portion of the mesh as well as cutting the arms as these are causing pain." Id. at 4.

• August 26, 2015 : Dr. Shariati

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