A woman whose silicone breast implants began causing her serious health problems after they were installed 24 years ago will have another chance to bring her claim to trial, after a federal appellate court ruled a genuine issue of material fact remained regarding whether the claim was time-barred.
All states have varying time limits during which injury and wrongful death claims can be filed. There are some situations in which those time limits can be tolled, or wherein the clock doesn’t start ticking until injuries become apparent.
For example in Florida, a products liability action has to be brought within four years from the time of injury. A medical malpractice claim must be brought within two years.
The case of Sutherland v. DCC Litig. Facility Inc. was one of thousands of lawsuit brought against Dow Corning for allegedly defective silicone breast implants. The primary issue hinged on which state statutes should be applied with regard to the statute of limitations. In a 2-1 ruling, the U.S. Court of Appeals for the Sixth Circuit ruled the more liberal North Carolina law should apply, as that was where the product was implanted. Defendant company had argued to have the more restrictive Michigan standard implemented, as that state was where the firm had filed for bankruptcy.
The origins of this personal injury lawsuit stretch back to 1988. It was in that year plaintiff underwent surgery to have the silicone implants at a hospital in North Carolina. The implants were produced by a company headquartered in Michigan.
In 1993, plaintiff filed a lawsuit in a North Carolina federal court, alleging her implants caused a host of major health problems. Her claim was one of tens of thousands brought against the company.
A multidistrict litigation panel transferred those cases to a federal court in Alabama, and a class action settlement was reached in 1994. However, plaintiff opted out of that settlement agreement.
The following year, defendant filed for bankruptcy, which halted all legal action against it. After a series of appeals, the district court set out a series of procedures for those plaintiffs who had opted out. A fund was created to handle the remaining complaints.
Settlement negotiations failed, and in 2009, the district court certified this case and ordered plaintiff to file a new complaint. That complaint was filed in January 2010. Plaintiff was deposed in 2011. Bear in mind – this was almost 23 years after she received the implants and 18 years after she had filed her lawsuit.
Defendant filed a motion arguing the claim was time-barred and secondly that plaintiff failed to provide evidence of causation. The court ruled Michigan law applied and, as such, the time clock on her claim started ticking shortly after she received the implants. Thus, her claim was untimely. It declined to answer the question of causation.
On appeal, the Sixth District reversed. Although the case ended up in Michigan court due to the bankruptcy, appellate court ruled the courts were bound to apply North Carolina law. In that state, there is a three-year statute of limitations on personal injury actions, but there is a disease exception wherein the statute of limitations clock may not start ticking until a diagnosis is received or plaintiff should reasonably know the injury was attributable to defendant.
Here, plaintiff had numerous symptoms for years after receiving implants, but received many different diagnoses. Her symptoms included loss of balance, swelling of the uterus and gallbladder, skin rashes, edema, painful knots on her body, loss of hair, chronic pain, ringing in her ears and vomiting.
She was diagnosed with lupus and other conditions before it became apparent the silicone implants were the culprit.
There is still a question of whether the claim may have been time-barred because there is still a dispute regarding when plaintiff knew or should have known the implants were the problem. However, that is in issue for the trial court to weigh. Thus, the case was remanded.
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Sutherland v. DCC Litig. Facility Inc. , Feb. 20, 2015, U.S. Court of Appeals for Sixth Circuit
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Cromer v. Children’s Hosp. Med. Ctr. of Akron – Foreseeability Factor in Med-Mal Case, Feb. 6, 2015, Hollywood Injury Lawyer Blog