Statute of Limitations for Hernia Mesh Lawsuits

Updated

 
A hernia mesh statute of limitations is the time limit victims have to file a lawsuit against the manufacturers. Each state has its own statute of limitations. In most jurisdictions, victims ("plaintiffs") have only a year or two after they discover their hernia mesh injuries. But this time limit can be paused ("tolled") under certain circumstances.

Below is a summary of each state's statute of limitations:

State

Years

Time Period Starts On

Code

Alabama

2

Date the harm is or should have been discovered.

Ala. Stat. § 6-2-38

Alaska

2

Date the harm is or should have been discovered.

Alaska Stat. § 09.10.070(a)

Arizona

2

Date the harm is or should have been discovered.

A.R.S. 12.-542

Arkansas

3

Date the harm is or should have been discovered.

A.C.A. § 16-116-103

California

2

Date the harm is or should have been discovered.

Cal. Civ. Proc. § Code 335.1

Colorado

2

Date the harm is or should have been discovered.

C.R.S. § 13-80-106(1)

Connecticut

3

Date the harm is or should have been discovered.
*10-year statute of repose beginning once the manufacturer or seller parted with the product.

C.G.S.A. § 52-577(a)

Delaware

2

Date the harm is or should have been discovered.

10 Del. C. § 8119 § 8107

District of Columbia

3

Date the harm is or should have been discovered.

D.C. Code § 12-301

Florida

4

Date the harm is or should have been discovered.
*12-year statute of repose with exceptions.

F.S.A. § 95.11(3)(a),(e),(k)

Georgia

2

Date the harm is or should have been discovered.
*1 year from date of death.
*10-year statute of repose with exceptions.

O.C.G.A. § 9-3-33

Hawaii

2

Date the harm is or should have been discovered.

Haw. Rev. Stat. § 657-7

Idaho

2

Date the harm occurred.
*10-year statute of repose with exceptions.

Idaho Code § 5-219

Illinois

2

Date the harm occurred.
*12-year or 10-year statute of repose beginning once product is sold or once product is delivered to first owner, respectively.

735 I.L.C.S. § 5/13-202

Indiana

2

Date the harm occurred.
*10-year statute of repose with exceptions

I.C. § 34-11-2-4

Iowa

2

Date the harm occurred.

I.C.A. § 614.1(2)

Kansas

2

Date the harm occurred.

K.S.A. § 60-513

Kentucky

1

Date the injury occurred.
*5-year or 8-year statute of repose beginning from sale date or manufacture date, respectively.

K.R.S. § 413.140(1)(a)

Louisiana

1

Date the injury occurred.

L.S.A.-C.C. Art. § 3492

Maine

6

Date the injury occurred.

14 M.R.S.A. § 752

Maryland

3

Date the injury occurred.

Md. Cts. & Jud. Proc. Code § 5-101

Massachusetts

3

Date the injury occurred.

Mass. Ann. Laws Ch. 260 §§ 2A and 4

Michigan

3

Date the injury occurred.

M.C.L.A. § 600.5805

Minnesota

4

Date the injury occurred.

M.S.A. § 541.05 subd.2

Mississippi

3

Date the injury occurred.

M.C.A. § 15-1-49

Missouri

5

Date the injury occurred.

Mo. Rev. Stat § 516.120

Montana

3

Date the injury occurred.

Mont. Stat. § 27-2-202

Nebraska

4

Day on which the injury occurred.
*10-year statute of repose beginning date product is first sold.

Neb. Rev. Stat § 25-224(1)

Nevada

4

Day the injury occurred.

N.R.S. § 11.190

New Hampshire

3

Day on which the injury happened.
*12-year statute of repose beginning once the product is manufactured and sold.

N.H.Rev. Stat. Ann. § 508:4(I)

New Jersey

2

Day that the injury happened.

N.J.S.A. § 2A:14-1

New Mexico

3

Day that the injury happened.

N.M.S.A. § 37-1-8

New York

3

Day that the injury happened.

N.Y.C.P.L.R. § 214, et seq.

North Carolina

3

Day that the injury is or should have been discovered.

N.C.G.S.A. § 1-52-(16)

North Dakota

6

Day the injury happened.
*10-year statute of repose from the date of the initial purchase or within 11 years of the date of manufacture.

N.D.C.C § 28-01-16(5)

Ohio

2

Day that the harm happened.

O.R.C.A. § 2305.10(A)

Oklahoma

2

Day that the harm happened.

Okla. Stat. Ann. Tit. 12, § 95

Oregon

2

Day that the harm happened.
*10-year statute of repose with exceptions.

O.R.S. § 30.905(1-3)

Pennsylvania

2

Day that the harm happened.

42 P.S. § 5524

Rhode Island

3

Day that the harm happened.

R.I.G.L. § 9-1-14(b)

South Carolina

3

Day that the harm happened.

S.C. Code Ann. §§ 15-3-530, 5-3-535

South Dakota

3

Day that the harm happened.
*6-year statute of repose beginning after purchase.

S.D.C.L. § 15-2-12.2

Tennessee

1

Day that the harm happened.
*10-year statute or repose with exceptions.

T.C.A. § 28-3-104

Texas

2

Day that the harm happened.
*15-year repose statute.

Tex. Civ. Prac. & Rem. Code Ann. § 16.003

Utah

2

Day that the harm happened.

U.C.A. § 78B-6-706

Vermont

3

Day that the harm happened.

Vt. Stat. Ann. Tit. 12, § 512(4),(5)

Virginia

2

Day that the injury happened.

Va. St. § 8.01-243(A)

Washington

3

Day that the injury happened.
*12-year repose statute.

R.C.W.A. § 7.72.060(3)

West Virginia

2

Day that the injury happened.

W. Va. Code § 55-2-12

Wisconsin

3

Day that the injury happened.
*15-year repose statute with exceptions.

Wis. Stat. § 893.54

Wyoming

4

Day that the injury happened.

Wyo. Stat. § 1-3-105(a)(iv)(C)

To be certain of the timing of your lawsuit, it is always best to seek legal counsel. In this article, our hernia mesh attorneys answer the following questions about statutes of limitations:

book and gavel
Each state has its own rules about how long victims have to sue.

1. What does a statute of limitations mean? And what triggers it?

A statute of limitations is a time limit to take legal action, such as filing suit. Every state has different time limits for different types of lawsuits.

Once the statute of limitations has passed, the would-be plaintiff is usually ineligible to file suit. It makes no difference if the plaintiff has a valid claim.

In many states, the clock to sue for hernia mesh injuries begins running once the victim discovers the injury. This is known as the "discovery rule" because the start date hinges on when the victim learns of the injury. Not when the injury actually occurred. (Learn more about the discovery rule in section 2.)

Hernia mesh victims should always consult with an attorney. A lawyer can determine what their time limit to file suit is - and if there are any available loopholes.

1.1. Statutes of repose

Some states also have "statutes of repose." Here, the clock typically starts running on the day the defective mesh product is implanted.

But in other states with a statute of repose, the clock may begin running on the date the hernia mesh product is manufactured, sold, or has left the manufacturer's premises. And once the statute of repose runs out, victims may not file a claim even if they discover their injury afterward.

1.2. "Tolling"

In certain situations, the time limit to file a claim automatically pauses ("tolls") when the victim is under a "legal disability." This typically occurs when the victim is a child, in a coma, or in prison.1

2. What is the discovery rule?

In states that follow the "discovery rule," the time limit to bring a lawsuit starts running only when the victim has discovered an injury. This can be much later than the date the injury actually occurred.

Example: Celia had surgery to implant a hernia mesh on January 1, 2017. On June 1, 2019, she was rushed to the hospital with a high fever and infection. Scans showed that the hernia mesh had eroded and migrated.

If her state follows the "discovery rule," the time limit for her to file suit would begin on the day she discovered her injuries -- June 1, 2019. And if her state has a two-year statute of limitations to sue the hernia mesh manufacturer for a defective device, she can bring a lawsuit anytime up until June 1, 2021.

Sometimes when the victim discovered the injury is unclear. But a skilled attorney can help determine the exact date and how long there is left to file suit.2

3. What if the statute of limitations has passed?

Getting around a statute of limitations deadline may be possible. Perhaps the victim can rely on the legal doctrine of "equitable estoppel" to file suit after the deadline passes. 

Example: Jon is permanently disabled from his defective hernia mesh. He contacted the manufacturer, which informed him that they would pay him a million dollars as a settlement if he agreed not to bring a lawsuit. Jon agrees. The manufacturer strings Jon along for two years, which is his state's statute of limitations to file suit. Then once the two years are up, the manufacturer refuses to pay him.

Jon immediately sues the manufacturer. The manufacturer asks the court to dismiss the case because the two-year statute of limitations has passed. Jon responds that the manufacturer should be prevented ("collaterally estopped") from claiming the statute of limitations has run because Jon reasonably relied on the manufacturer's earlier promises to pay him.

If the court agrees with Jon, Jon then would be allowed to sue the manufacturer even though the two-year statute of limitations had passed.

Equitable estoppel typically has five "elements." The plaintiff would need to prove these to file suit after the statute of limitations has run:

  1. The defendant did or said something that caused the plaintiff to believe that it would not be necessary to bring a lawsuit;
  2. The plaintiff relied on the defendant's conduct or words when deciding not to file the lawsuit;
  3. A reasonable person in the plaintiff's position would have relied on the defendant's conduct or words;
  4. After the statute of limitations passed, the defendant's conduct or words prove to be untrue; and
  5. The plaintiff proceeded diligently to file suit after discovering the need to proceed.3

In the above example, Jon may also be able to bring a lawsuit for breach of contract. He could ask the court to grant him restitution by ordering the manufacturer to pay him the million dollars it promised.

receptionists
Injured by a hernia mesh? Call our personal injury attorneys at 855-396-0370.

Injured? We are here to help...

Hernia mesh victims are advised to consult with an attorney as soon as possible to pursue the maximum financial settlement. The more time goes by, the more evidence disappears and memories fade. And if the statute of limitation passes, victims may be unable to recover any money at all.

For a FREE consultation, call our hernia mesh attorneys at 855-396-0370. We take no money unless we win your case.


Legal References

  1. See, e.g. Hardin v. Straub, 490 U.S. 536, 109 S. Ct. 1998 (1989).

  2. See, e.g., Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 110 P.3d 914 (2005).
  3. See, e.g., "CACI No. 456. Defendant Estopped From Asserting Statute of Limitations Defense," Judicial Council of California Civil Jury Instructions (2017 edition).

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