Each state has its own statute of limitations to bring a hernia mesh lawsuit for compensation. In most state courts, this time limit to sue is only a year or two after the victims (“plaintiffs”) discover their hernia mesh injuries.
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 found out.|
*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 found out.||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 repose statute 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)|
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 for bringing hernia mesh litigation passes, victims may be unable to recover any money at all.
To be certain of the timing of your lawsuit, it is always best to seek legal counsel. In this article, our hernia mesh lawyers answer the following questions about statutes of limitations:
- 1. What does a statute of limitations mean, and what triggers it?
- 2. What is the discovery rule?
- 3. What if the time limit to sue has passed?
- 4. Who are the defendants?
- 5. What are the injuries?
A statute of limitations is a time limit to take legal action, such as suing. 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 sue. It makes no difference if the plaintiff has a valid claim.
Hernia mesh victims should always consult with an attorney to calculate what their time limit to sue is. Laws are constantly changing, and there may be ways to get around the rules.
1.1. Types of statutes of limitations
In some 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.)
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 amount of time for the statute of repose runs out, victims may not sue even if they discover their injury afterward.
In some situations, the time limit to sue 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
In states that follow the “discovery rule,” the time limit to bring a lawsuit starts running only when the victim has discovered his/her 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 statute of limitations for her to sue 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 it may be unclear when the victim technically discovered that he/she was injured. But a skilled attorney can help the victim determine the exact date and how long he/she has to bring a lawsuit.2
It may be possible to get around a statute of limitations deadline. Depending on the facts of the case, the victim may be able to rely on the legal doctrine of “equitable estoppel” to sue 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 sue them. Jon agrees. The manufacturer strings Jon along for two years, which is his state’s statute of limitation to sue. 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’s hernia mesh attorney 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” that the plaintiff would need to prove in order to sue after the statute of limitations has run:
- The defendant did or said something that caused the plaintiff to believe that it would not be necessary to bring a lawsuit;
- The plaintiff relied on the defendant’s conduct or words when deciding not to file the lawsuit;
- A reasonable person in the plaintiff’s position would have relied on the defendant’s conduct or words;
- After the statute of limitations passed, the defendant’s conduct or words prove to be untrue; and
- The plaintiff proceeded diligently to sue once he/she discovered the need to proceed.3
In the above example, Jon may also be able to sue 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.
Currently there are multi-district litigations (MDLs) in federal district courts against the most common mesh manufacturers: Bard, Atrium Medical (which makes C-qur mesh), and Ethicon (which makes physiomesh). Plaintiffs claim that the medical devices are defective products, and that the manufacturers are responsible under product liability laws. (Other mesh device makers include Gore Medical, Covidien, and Genzyme.)
MDLs are not class actions since all the plaintiffs’ hernia mesh cases remain separate. Instead, MDLs expedite litigation and the hernia mesh settlement process by allowing one federal court judge to make all the pretrial rulings.
Note that defendants may also be able to bring claims against their surgeons for medical malpractice if they implanted the surgical mesh incorrectly.
There are dozens of possible hernia mesh complications that victims have been suing for. Just some include bowel perforation, bowel obstruction, problems with the small intestine, seromas, chronic pain following hernia repair surgery, infection, hernia recurrence, revision surgery, and other problems requiring medical treatment from mesh migration or erosion. Serious complications have also been caused by hernia mesh implants coated with polypropylene.
- See, e.g., Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 110 P.3d 914 (2005).
- See, e.g., “CACI No. 456. Defendant Estopped From Asserting Statute of Limitations Defense,” Judicial Council of California Civil Jury Instructions (2017 edition).