I Nthe Matter of : Cook Medical, Inc ., Ivc Filters Marketing , Sales Practices v. Edward Orton, Jr. Ceramic Found., 71 F.4th 601, 609 7th Cir. 2023 . The parties…

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-3008
I N THE M ATTER OF :
C OOK M EDICAL, I NC ., IVC F ILTERS M ARKETING , S ALES
PRACTICES AND PRODUCTS LIABILITY LITIGATION
A PPEAL OF : JESSICA GEHNER
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
Nos. 1:14-ml-02570 & 1:16-cv-01166 — Richard L. Young, Judge.
____________________
A RGUED M AY 24, 2024 — DECIDED J ULY 30, 2024
____________________
Before EASTERBROOK, K IRSCH , and LEE, Circuit Judges.
K IRSCH , Circuit Judge. Jessica Gehner was implanted with
a Cook Medical inferior vena cava (IVC) filter in Ohio. She
later developed abdominal pain, and a March 2013 CT scan
revealed that the filter had perforated her IVC. Gehner’s doc-
tors believed that the filter was compressing her small bowel,
causing her pain, and recommended the filter’s removal. The
IVC filter was removed in Ohio in April 2013, but a fragment

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2 No. 23-3008
was left behind because the filter had fractured prior to or
during removal.
Gehner sued Cook Incorporated, Cook Medical LLC, and
William Cook Europe APS in May 2016, as part of the consol-
idated proceedings in federal court in In re: Cook Medical, Inc.,
IVC Filters Marketing, Sales Practices and Products Liability Liti-
gation, MDL No. 2570. Relevant to this appeal, she brought
products liability and implied warranty claims. The defend-
ants moved for judgment on the pleadings, Fed. R. Civ. P.
12(c), arguing that her claims were time barred under Ohio’s
two-year statute of limitations. In response, Gehner asserted
that her doctors told her that she was experiencing a rare side
effect of the filter, not that the filter was defective. She said
she was unaware of the defect until 2016, when her mother
saw a television commercial about the defective nature of IVC
filters and told Gehner about it. The district court granted the
defendants’ motion, concluding that the claims were time
barred. In doing so, the court relied on an affidavit from
Gehner, which the parties agree converted the defendants’
Rule 12(c) motion to one for summary judgment. Fed. R. Civ.
P. 12(d). Gehner appeals, arguing that her claims are not time
barred by the two-year statute of limitations.
“We review a grant of summary judgment de novo, con-
struing the evidence and drawing all reasonable inferences in
favor of the nonmoving party.” Johnson v. Edward Orton, Jr.
Ceramic Found., 71 F.4th 601, 609 (7th Cir. 2023). The parties
agree that Ohio law provides the statute of limitations for
Gehner’s claims. Under Ohio law, “an action based on a prod-
uct liability claim and an action for bodily injury … shall be
brought within two years after the cause of action accrues.”

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No. 23-3008 3
Ohio Rev. Code § 2305.10(A). For claims related to medical
devices,
a cause of action … accrues upon the date on
which the plaintiff is informed by competent
medical authority that the plaintiff has an injury
that is related to the exposure, or upon the date
on which by the exercise of reasonable diligence
the plaintiff should have known that the plain-
tiff has an injury that is related to the exposure,
whichever date occurs first.
Id. § 2305.10(B)(1).
In March 2013, Gehner’s doctors informed her that the IVC
filter—which had perforated her IVC and was compressing
her small bowel—was the cause of her abdominal pain and
needed to be removed. Her cause of action thus began to ac-
crue then, as she was informed by competent medical author-
ity that she had an injury related to the IVC filter. At the latest,
it began to accrue in April 2013, when her IVC filter was re-
moved, and a fragment was left behind because the filter had
fractured. See Griffin v. Am. Med. Sys., Inc., 106 F.3d 400 (6th
Cir. 1997) (unpublished) (noting that no one told the plaintiff
his medical device was defective until after removal, but the
removal itself “alerted [him] that the [device] might be defec-
tive”). Because Gehner sued more than two years after becom-
ing aware that the IVC filter injured her, and more than two
years after the filter’s removal, the district court correctly con-
cluded that her claims were time barred.
Gehner argues that though she knew the filter injured her,
her doctors never informed her that her injuries were related
to a defect in the filter or the defendants’ wrongful conduct,

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4 No. 23-3008
instead telling her that she experienced a rare side effect. She
says that she was unaware that the IVC filter was defective
until her mother saw a television commercial about IVC filters
in 2016, and thus her claim could not have started accruing
until then. But “[a] plaintiff need not have discovered all the
relevant facts necessary to file a claim in order to trigger the
statute of limitations.” Flowers v. Walker, 589 N.E.2d 1284, 1287
(Ohio 1992). After an injury has occurred, “additional time is
not given to [] discover whether the [product] was defective.”
Id. at 1288. Rather, once a person “discovers the causal rela-
tionship between a physical injury and use of a product, … he
may infer a defective or negligently manufactured product,
unless the physical injury is known and anticipated to be the
natural and probable result of the use of the product.” Lundy
v. Lederle Labs., Div. of Am. Cyanamid Co., 561 N.E.2d 1027, 1032
(Ohio Ct. App. 1988) (quotation omitted). A rare side effect is
inherently not a natural and probable result of the filter’s use.
Thus, once Gehner was aware of the causal relationship be-
tween her injury and the IVC filter, she was put on sufficient
notice that the filter may have been defective, thereby starting
the two-year statute of limitations clock.
Gehner also argues that her suit is timely under the Ohio
Supreme Court’s “discovery rule,” but it is not. She points to
O’Stricker v. Jim Walter Corp., 447 N.E.2d 727 (Ohio 1983),
which states,
[w]hen an injury does not manifest itself imme-
diately, the cause of action arises upon the date
on which the plaintiff is informed by competent
medical authority that he has been injured, or
upon the date on which, by the exercise of rea-
sonable diligence, he should have become

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No. 23-3008 5
aware that he had been injured, whichever date
occurs first.
Id. at 732. Gehner insists the O’Stricker discovery rule is more
lenient—that the claim accrues when the plaintiff either
knows or reasonably should have known that she was injured
and that the defendants’ conduct proximately caused her in-
jury. She discerns this rule from O’Stricker’s syllabus, which
states that the claim accrues when “the plaintiff knows, or by
the exercise of reasonable diligence should have known, that
he had been injured by the conduct of defendant.” Id. at 727;
see Ohio v. Robinette, 519 U.S. 33, 48 n.6 (1996) (Stevens, J., dis-
senting) (“It is ordinarily the syllabus that precedes an Ohio
Supreme Court opinion, rather than the opinion itself, that
states the law of the case.”). But such a rule is inapplicable to
her claims because “the discovery rule generally applies in
cases of latent injury and not in cases of possible latent de-
fects.” Baxley v. Harley-Davidson Motor Co., 875 N.E.2d 989, 991
(Ohio Ct. App. 2007). Her claim concerns a latent defect, not
a latent injury: she states that her physicians never informed
her that a defect in the filter caused her injury. Gehner does
not argue that she was unaware she was injured or unaware
her injury was related to the filter. And awareness of an injury
is “enough to put a reasonable person on notice of the need
for further inquiry even where a defect is latent.” Id.; see also
Flowers, 589 N.E.2d at 1288 (“[T]he ‘cognizable event’ itself
puts the plaintiff on notice to investigate the facts and circum-
stances relevant to her claim in order to pursue her reme-
dies.”). Summary judgment for the defendants is therefore
proper.
A FFIRMED

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