A hernia mesh attorney sets forth and explains a very instructive Massachusetts hernia mesh decision, MIRABELLO v ATRIUM. In Mirabello v Atrium the Mass. Court explains the Massachusetts statute of limitations as applied to hernia mesh claims. Hernia mesh victims and their surgical mesh lawyers must be diligent not to miss the statute of limitations. If a victim waits too long to file a lawsuit, the mesh victim could be barred from receiving compensation or justice as a result of the defective mesh. It is tragic to think that a mesh victim could be victimized twice, once by defective surgical mesh and again by a sophomoric mesh lawyer a few days out of law school blowing a state statute of limitations.
Hernia Mesh statute of Limitations case: MIRABELLO v ATRIUM
In Mirabello, Atrium sought to dismiss the victim’s hernia mesh lawsuit based on an allegation that the victim missed the statute of limitations. Ultimately, the Magistrate determined that the victim / plaintiff barely complied with the Mass. Statute of Limitations, filing the lawsuit before the deadline. As a result the C- Qur mesh lawsuit could proceed towards a potential trial on the merits or a possible surgical mesh settlement.
At the end of the day, it does not matter what you need to know before you file a surgical mesh lawsuit, if you miss a statute of limitations! You will not be getting any hernia mesh settlement 2018, never mind an average mesh settlement, if your claim is axed based on a state statute of limitations.
It will make no difference what your hernia mesh problems years later will be, if you do not comply with the statute of limitations. If you have a hernia mesh complications or a revision surgery or terrible pain associated with hernia mesh then contact a hernia mesh attorney or a surgical mesh law firm well before the statute of limitations expires. In fact, as soon as you become aware of a potential hernia mesh claim, contact a hernia mesh law firm.
“Statutes of limitations set the deadline or maximum period of time within which a lawsuit or legal claim may be filed. They vary depending on the circumstances of the case, the type of case or claim involved, and whether the lawsuit or claim is filed in state or federal court.” Lawyers.com
Contacting a top hernia mesh law firm
Some victims wait until the last minute, contacting a top hernia mesh law firm a month or two before the Ethicon Physiomesh
hernia mesh lawsuit SOL expires. This is a big mistake since it takes time for the hernia mesh lawyers to evaluate the case, review medical records and bring a cause of action in federal or state court. The best hernia mesh law firm may reject a case SOLELY because the Parietex surgical mesh victim or the Bard / Davol mesh victim waited until the Statute of Limitations almost expired.
Best hernia mesh attorneys
The best hernia mesh attorneys and the best hernia mesh law firm have numerous hernia mesh lawsuits pending.They may not need the headache of a C- QUR hernia mesh claim being dumped on them at the last moment before the statute of limitations expires.
In 2012, LUCILLE MIRABELLO filed a hernia mesh lawsuit against ATRIUM MEDICAL CORPORATION. This hernia mesh lawsuit was filed in Massachusetts Federal Courts and was pending before the UNITED STATES DISTRICT COURT, DISTRICT OF MASSACHUSETTS. Lucille Mirabello was implanted with Atruim C- Qur hernia mesh. She asserted that the mesh was defective and caused her severe complications. She was unable to find a hernia mesh attorney to represent her in the hernia mesh lawsuit so she represented herself pro-se.
“Although the majority of individuals, also known as “litigants” or “parties,”appearing before this court, is represented by attorneys, a small percentage appears pro se. Litigants or parties representing themselves in court without the assistance of an attorney are known as pro se litigants. “Pro se” is Latin for “in one’s own behalf.” The right to appear pro se in a civil case in federal court is defined by statute 28 U.S.C. § 1654. Thus, with some limitations, anyone can appear pro se, and anyone who appears before the Court without an attorney is considered pro se.” http://www.mad.uscourts.gov/general/pdf/prosefaqs.pdf
Atrium files motion to dismiss claiming the hernia mesh complaint is insufficient
In March of 2013, Atrium Medical Corporation sought to dismiss the hernia mesh lawsuit by filing a motion to dismiss the claim. They argued that the hernia mesh lawsuit should be dismissed because it failed “to state a claim upon which relief may be granted.” Lucille Mirabella opposed the motion to dismiss and represented herself pro- se in the defense of that motion.
The Mirabello lawsuit was a very tragic and terribly sad case in which a hernia mesh victim alleged that she suffered severe complications as a result of allegedly defective C-Qur hernia mesh. A surgeon implanted Atrium C-Qur hernia mesh into her to repair a hernia. The victim could not find a hernia mesh attorney to file a hernia mesh lawsuit against Atrium on her behalf. The victim had no choice but to file the hernia mesh lawsuit representing herself pro-se.
The Hernia mesh defense lawyers attempted to dismiss the claim based n the statute of limitations
Predictably, Atrium tried to quash her claims for compensation utilizing an inside baseball technicality known as the statute of limitations. The statute of limitations is a law enacted by state legislatures, “a law which sets the maximum period which one can wait before filing a lawsuit, depending on the type of case or claim. The periods vary by state.” Dictionary.law The statute of limitations essentially disregards the merits of the hernia mesh claim and can deprive victims their day in Court.
Atrium attempted to dismiss victim’s C- QUR surgical mesh complaint based on the Massachusetts statute of limitations. Atrium’s hernia mesh attorney cited the Massachusetts statute of limitations in their efforts to quash the cause of action and deny the victim their day in court.
United States Federal Court Magistrate explains the MA Statute of Limitations in Mass.
In the federal Court decision by KENNETH P. NEIMAN U.S. Magistrate Judge, which was dated March 15, 2013, the court gave an eloquent explanation of the Massachusetts statute of limitations. “The three-year limitations period for negligence claims commences “after the cause of action accrues.” M.G.L. c. 260, § 2A. Normally, a cause of action for personal injury accrues at the time of injury. Genereux v. American Berylia Corp., 577 F.3d 350, 359-360 (1st Cir. 2009). However, under Massachusetts’ discovery rule, and this is a diversity case, “a cause of action does not accrue until the plaintiffs know or reasonably should have known that they were injured as a result of the defendant’s conduct.” Cornell v. E.I. Du Pont de Nemours & Co., 841 F.2d 23, 24 (1st Cir.1988) (quoting Olsen v. Bell Tel. Labs, Inc., 445 N.E.2d 609, 611 (Mass. 1983)). Actual knowledge is not the standard, but “what a reasonable person in [plaintiff’s] position would have known or on inquiry would have discovered.” Genereux, 577 F.3d at 360 (quoting Bowen v. Eli Lilly & Co., Inc., 557 N.E.2d 739, 742 (Mass.1990)). The Massachusetts discovery rule has two parts: “a plaintiff [must] have (1) knowledge or sufficient notice that she was harmed and (2) knowledge or sufficient notice of what the cause of harm was.” Bowen, 557 N.E.2d at 742. Such notice includes not only knowledge that one has been injured but also knowledge of the cause — that plaintiff “has been harmed as a result of the defendant’s conduct.” Fidler v. Eastman Kodak Co., 714 F.2d 192, 198 (1st Cir.1983) (quoting Olsen, 445 N.E.2d at 611)). The level of notice of cause sufficient to trigger the statute of limitations is “likely cause.” Id. at 199; see also Cornell, 841 F.2d at 24 (“[T]he level of notice required to start the statute running has been defined as likely cause.”) (internal quotation marks and citation omitted)). Whether in a given case there was notice of “likely cause” depends on the facts, Bowen, 557 N.E.2d at 742, and in most instances will be decided by the trier of fact. In re Mass. Diet Drug Litig., 338 F.Supp.2d 198, 204 (D. Mass. 2004) (quoting Riley v. Presnell, 565 N.E.2d 780, 783 (Mass. 1991)); see also Koe v. Mercer, 876 N.E.2d 831, 836 (Mass. 2007).” UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS, LUCILLE MIRABELLO, Plaintiff V. ATRIUM MEDICAL CORPORATION,Defendant, Civil Action No. 12-30082-KPN
What arguments did Atrium’s surgical mesh defense attorneys make to justify their argument that the Plaintiff’s complaint should be dismissed on Statute of Limitations grounds?
Atrium’s C-Qur hernia mesh defense lawyer argued before the Federal Court that Lucille Mirabello was on “inquiry notice” of her potential claim against Atrium as a result of the C-Qur hernia mesh. Atrium’s mesh lawyers attempted to argue that “inquiry notice” was the proper standard that the justice should apply for statute of limitations standards.
Below you will find an explation of Atruim’s arguments:
“In support of its motion, Atrium emphasizes the “inquiry notice” of the standard, i.e., when the first event occurs that would prompt a reasonable person in the plaintiff’s position to inquire into a possible injury at the hands of the defendant. Once on inquiry
notice, Atrium argues, a plaintiff is charged with the knowledge that she would have uncovered through a reasonably diligent investigation even if she does not have actual knowledge of that information. Here, Atrium asserts, based on the amount of
information Plaintiff had and in light of her subsequent condition, her duty of inquiry was triggered and the statute of limitations began to run on August 1, 2008, the date of the second surgery, or, at the latest, on November 21, 2008, the date she returned home
from her nine-week rehabilitation stay.” UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS, LUCILLE MIRABELLO, Plaintiff V. ATRIUM MEDICAL CORPORATION,Defendant, Civil Action No. 12-30082-KPN
MA Court Magistrate determines victim not on “inquiry notice”
The federal Magistrate reasoned in his decision: “For its part, the court is not convinced for present purposes that Plaintiff was on inquiry notice on either date. As far as the August 1, 2008 date, Atrium argues that Plaintiff was aware that the first surgery had gone wrong and that her injuries were likely caused by another’s conduct. Absent some warning sign, however, individuals ordinarily are not expected to assume that undesirable outcomes are the result of negligent or otherwise wrongful acts or omissions attributable to others, be it their accountants, attorneys, or physicians. RTR Technologies, Inc. et al. v. Carlton Helming et al., 707 F.3d 84, 90, 2013 WL 388766 (1st Cir. February 1, 2013).
The victim did not miss the Statute of Limitations
“Thus, the question here is when Plaintiff knew or reasonably should have known that her injury was “likely caused” by Atrium so as to
trigger the statute of limitations. See Genereux, 577 F.3d at 361 (a reasonable jury could find that the plaintiff lacked notice that her symptoms were “likely caused” not by asthma, but by another disease); Bowen, 557 N.E.2d at 743 (plaintiff possessed
information, including published medical articles and letters from doctors, suggesting a significant “causal connection” between the drug DES and her “exceedingly rare” condition thus triggering the statute of limitations).”
“In the court’s view, Plaintiff did not discover the “likely cause” of her injury until May of 2009 and her failure to do so earlier was reasonable. In essence, the underlying facts of Plaintiff’s claim, i.e., what had happened inside her body, were “inherently unknowable.” RTR Technologies, Inc., 707 F.3d at 90 (discovery rule pertains only to those plaintiffs who suffer injuries under circumstances in which the facts, as distinguished from the legal theory, are “inherently unknowable” to the injured party). There is no evidence Plaintiff had any knowledge that the injuries she suffered during and after her first surgery were caused by anyone, Atrium included, nor could she reasonably have had any knowledge until May of 2009 when she asked Dr. Romanelli what had happened. There is no evidence proffered that she could have or should have inquired earlier. It was only then, during an appointment with him, that Dr. Romanelli showed Plaintiff Atrium’s website and explained what he believed to have gone wrong with the hernia mesh. This, then, provided the possible if not likely causal link. See Riley, 565 N.E.2d at 786 (reversing summary judgment and holding that a reasonable fact finder could find that the plaintiff patient did not make the causal link between the damaging therapy he received from the defendant psychiatrist and the psychological harm he suffered and that his failure to do so was reasonable).”
“Accordingly, the date of Plaintiff’s appointment with Dr. Romanelli, either the 5th or 9th of May 2009, is the date she knew or reasonably should have known that Atrium may have caused her injuries, thus triggering the statute of limitations. As a result, Plaintiff’s May 3, 2012 filing is timely, albeit barely” UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS, LUCILLE MIRABELLO, Plaintiff V. ATRIUM MEDICAL CORPORATION,Defendant, Civil Action No. 12-30082-KPN
The Mesh defense attorneys argued that the victims’ complaint was incorrectly drafted and as a result the mesh complaint should be dismissed.
It is not uncommon for Corporate America to try to overwhelm pro-se Plaintiffs with their high powered hernia mesh attorneys. Predictably, the hernia mesh lawyers retained by Atrium sought to dismiss the complaint asserting that Lucille Mirabello did not properly draft the hernia mesh lawsuit complaint.
The Federal Court Justice refused to dismiss the claim based on an allegedly poorly drafted hernia mesh liability complaint.
“A complaint generally requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Still, Plaintiff must allege enough facts so that the claim is “plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 570 (2007), i.e., the factual content pled should “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). In drawing such an inference, a court need not credit “bald assertions, unsupportable conclusions, and opprobrious epithets.” Campagna v. Mass. Dep’t of Envtl. Prot., 334 F.3d 150, 155 (1st Cir.2003) (quoting Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir.1989)). “In short,” the First Circuit has explained, “an adequate complaint must provide fair notice to the defendants and state a facially plausible legal claim.” Ocasio Hernandez,v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir.2011).”UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS, LUCILLE MIRABELLO, Plaintiff V. ATRIUM MEDICAL CORPORATION,Defendant, Civil Action No. 12-30082-KPN
“When dealing with a pro se plaintiff, the court employs a somewhat more lenient standard. A document filed pro se is “to be liberally construed,” Estelle v. Gamble, 429 U.S. 97, 106 (1976), and a pro se complaint, “however inartfully pleaded,” must be held “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). Of course, the generous standard has limits; a pro se complaint can be dismissed for failure to state a claim if it appears that no showing of any set of facts consistent with the allegations in the complaint can be shown. Bell Atl. Corp., 550 U.S. at 563.” UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS, LUCILLE MIRABELLO, Plaintiff V. ATRIUM MEDICAL CORPORATION,Defendant, Civil Action No. 12-30082-KPN
The federal Judge speaks: victim’s complaint is sufficient
“Atrium argues first that Plaintiff’s claim should be dismissed because she has failed to allege in her complaint that Atrium’s C-Qur mesh is or was defective or to plead any facts that would support any such allegation. In essence, Atrium argues, Plaintiff makes no allegation that Atrium’s C-Qur mesh is or was the cause of her injuries. The court disagrees. Given the facts contained in Plaintiff’s complaint and in light of the less stringent standard to which pro se pleadings are held, Plaintiff, in the court’s view, has sufficiently stated her claim against Atrium.”
The pertinent facts are set forth below:
- “On July 24, 2008, Plaintiff underwent surgery to repair a ventral hernia.”
- “During the surgery, Dr. John Romanelli inserted a hernia mesh called C-Qur made by Atrium.
On August 1, 2008, Dr. Romanelli’s associate informed Plaintiff’s brother, who is
Plaintiff’s healthcare proxy, that she had an infection and needed to be operated on
immediately to save her life. The operation was performed the same day.”
- “During the week between her first and second surgeries, July 24, 2008 to August 1, 2008, Plaintiff was in such pain that morphine provided little to no relief, she had trouble breathing, and she had a fever of 102 degrees.”
- “During the August 1, 2008 surgery, three sections of Plaintiff’s small intestines
were removed, which Plaintiff did not learn until sometime after May 2009. Plaintiff
came out of this second surgery on full life support and needed to be placed in isolation
due to multiple infections. Plaintiff later learned she had flat-lined six times during this
- “On August 8, 2008, there was a third surgery, after which Plaintiff became so restless that she ripped open her incision; there was not enough skin to close the wound so it was left open.”
- “Plaintiff was placed in a medical coma until September 4, 2008.”
- “On September 15, 2008, after eight weeks in the hospital, Plaintiff went to
Weldon Rehabilitation Center where she spent three weeks learning to stand, walk, and
use her hands again.”
- “She then spent another six weeks at Linda Manor where she
transitioned from a wheelchair to a walker. While there, Plaintiff learned she suffered a
bladder infection, which started at the end of July 2008, and a new hernia.”
- “Plaintiff returned home on November 21, 2008. On March 11, 2009, a final surgery was done to
repair two new hernias created at the time of the second surgery on August 1, 2008,
and to close the hole in Plaintiff’s abdomen left open on August 8, 2008.”
- “On either the 5th or the 9th of May, 2009, the date being unclear, Plaintiff asked
Dr. Romanelli exactly what had happened to her. Dr. Romanelli told her that the mesh
he had inserted into her had a metal piece attached to it which had detached and sliced
through her small intestines. Plaintiff subsequently went on the internet to find more
information about the mesh and believed that the piece of metal Dr. Romanelli described was a tack.”
- “By June 2009, Plaintiff, with the help of her brother, realized theextent of her memory loss, believed to be about five years, 2003 to 2008; Plaintiff asserts that she continues to experience difficulty retaining information.”
- “In March 2010, Plaintiff visited another doctor who told her she had suffered brain damage due to the
many times she had stopped breathing during her second surgery on August 1, 2008.”
- “In any event, after Plaintiff’s May 2009 visit with Dr. Romanelli and her subsequent research, Plaintiff consulted many lawyers to determine her rights and remedies under the law.’
- ‘All of the lawyers Plaintiff spoke with were either unwilling or unable to take her case. As indicated, Plaintiff has chosen to proceed pro se.” UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS, LUCILLE MIRABELLO, Plaintiff V. ATRIUM MEDICAL CORPORATION,Defendant, Civil Action No. 12-30082-KPN
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