In the seminal case of Anthony v. Abbott Laboratories, the Rhode Island Supreme Court extended the statute of limitations for defective product liability cases by rejecting “the general rule that a cause of action accrues at the time of the injury.” Anthony v. Abbott Laboratories,490 A.2d 43, 45 (R.I. 1985) KELLY v. MARCANTONIO 678 A.2d 873 (1996) (LEDERBERG, Justice, concurring in part and dissenting in part)
This long lasting, protracted and extended statute of limitations in Rhode Island is a game changer for certain hernia mesh victims. There is no doubt that certain hernia mesh victims in Rhode Island may have an extended period of time to file a mesh lawsuit.
The hernia mesh victims who may get protracted mesh deadline for hernia mesh lawsuits are:
- All victims of hernia mesh manufactured by Bard and their corporate subsidiary Davol Inc. such as: Visilex Composix Composix EX Spermatex 3D Max Sepramesh Perfix Plug Ventralex Kugel Composix Kugel Ventrio Ventrio ST Marlex Sepramesh IP Composite Ventralex ST (These hernia mesh lawsuits against Bard Davol must be filed in Providence Superior Court in the pending coordinated proceedings known as: “IN RE: DAVOL/ C.R. BARD HERNIA MESH.”**
- Rhode Island residents MAY be able to get the benefits of a long lasting statute of limitations by filing a hernia mesh lawsuit against other mesh companies as a result of other types of defective hernia mesh. (There is a possibility that other mesh companies may try to move the hernia mesh lawsuit to Rhode Island Federal Court.)
**In 2007, the Providence Superior Court “set up a multi-case management coordinated proceeding for cases primarily involving
Davol/C.R. Bard Composix Kugel Hernia Patch.” IN RE: DAVOL/ C.R. BARD HERNIA MESH PROCEDURAL ORDER NO. 1 From 2007 through May 1, 2017 a significant amount of hernia mesh lawsuits which “involved other Bard hernia products such as the Composix E/X Mesh, Ventralex Hernia Patch, Composix Hernia Patch, Kugel Hernia Patch, CK Parastomal Patch and Modified Kugel Patch” had been filed in Rhode Island State Courts. On May 5, 2017 the Providence Superior Court, “set up a multi-case management coordinated proceeding for all subsequent filings alleging personal injuries from Davol/C.R. Bard hernia mesh products. Administrative Order No. 2017-02.” Id.
The basics of the the extended statute of limitations that may apply in all C. R. Bard / Davol Inc. hernia mesh lawsuits filed in RI Superior Court:
- Bard was a Rhode Island headquartered businesses, since recently. Therefore, the RI State Courts have personal jurisdiction over C. R. Bard. Therefore, all residents of the United States and certain other countries such as Canada and Mexico could potentially file a lawsuit in Providence Superior Court.
- The Rhode Island statute of limitations will probably apply to these surgical mesh lawsuits.
- Rhode Island has a very liberal, extended statute of limitations for defective medical device cases, including defective hernia mesh lawsuits.
The statute of limitations in defective product cases in Rhode Island and Providence Plantations must keep Bard executives up late at night. Does the statute of limitations ever expire under RI law? What is the statute of limitations in hernia mesh cases? What is the statute of limitations in product liability lawsuits in RI?
Anthony v. Abbott, a seminal groundbreaking case
In Anthony v. Abbott, The Rhode Island Supreme Court issued a seminal decision concerning the statute of limitation (product liability deadline) in defective product lawsuits in Rhode Island. The RI Supreme Court determined that the Rhode Island three year statute of limitations in defective product cases commences when a victim knew / discovers wrongdoing by the manufacturer. The court also stated that the statute could commence 3 years after a person “with reasonable diligence should have discovered, the wrongful conduct of the manufacturer.” Anthony v. Abbott Laboratories, 490 A.2d 43 (R.I. 1985) see also DiPETRILLO v. DOW CHEMICAL COMPANY, 729 A.2d 677 (1999)
Rhode Island has a three year statute of limitations for product liability lawsuits. Generally, a statute of limitations begins when a victim knew or should have known of an injury resulting from a defective product. However, in RI hernia mesh lawsuits or other defective products claims, the “running of the statute of limitations would begin when the person discovers, or with reasonable diligence should have discovered, the wrongful conduct of the manufacturer.” DiPETRILLO v. DOW CHEMICAL COMPANY, 729 A.2d 677 (1999), Anthony v. Abbott Laboratories, 490 A.2d 43 (R.I. 1985)
RI law: extended hernia mesh deadline for filing a lawsuit
“We are convinced, after reviewing the case law and weighing the equitable considerations, that the better view would be to adopt the following rule: in a drug product-liability action where the manifestation of an injury, the cause of that injury, and the person’s knowledge of the wrongdoing by the manufacturer occur at different points in time, the running of the statute of limitations would begin when the person discovers, or with reasonable diligence should have discovered, the wrongful conduct of the manufacturer.” Anthony v. Abbott Laboratories, 490 A.2d 43 (R.I. 1985)
Hernia mesh lawsuit deadline
If a hernia mesh victim misses the hernia mesh deadline to file a mesh lawsuit then it is completely irrelevant what types of hernia mesh lawsuit settlement amounts other victims have received in 2017 or 2018. An abdominal hernia mesh lawsuit is a very serious matter and complications from hernia mesh can be devastating to a victim. Therefore, all victims must file hernia mesh lawsuits within the applicable hernia mesh staute of limitations. If you miss a mesh statute of limitations, you will be forever barred and precluded from obtaining a hernia mesh settlement 2018 or a mesh settlement 2019 or at any time. If you did not file a hernia mesh lawsuit 2017 you need to learn what you need to know before you file hernia mesh lawsuit. There were no reported hernia mesh lawsuit settlement amounts 2017 nor were there reported hernia mesh lawsuit settlement amounts 2016. Will there be a hernia mesh settlement 2018 or a hernia mesh settlement 2019? What about a pelvic mesh settlement?
What was the reasoning and public policy of the RI Supreme Court’s extended statute of limitations decision in Anthony V Abbott?
The Rhode Island Supreme Court stated three prime rationales for the extended statute of limitations.
- An extended statute of limitations will motivate manufacturers to thoroughly test products before marketing for sale.
- This extended deadline will motivate manufacturers to inform the public of any harmful side effects of their defective product to limit their liability
- This extended statute of limitations is ok, because the statute begins to toll when a reasonable person should have known of the defendant’s wrongful conduct and this rule will not reward “foot dragging” on the behalf of the mesh manufacturers.
Motivate manufacturers to do thorough testing
The RI Supreme Court’s reasoning for extending the statute of limitation in defective product cases was to motivate hernia mesh companies and other product manufacturers to provide more “thorough testing” before bringing a product to the market. In Abbot, the court declared, “In extending the discovery rule in drug product-liability actions until the plaintiff discovers or in reasonable diligence should have discovered the manufacturer’s wrongful conduct, we believe such a rule will encourage manufacturers to be more thorough in their testing before a product is placed on the market. If the manufacturers recognize that they will be subject to potential liability for a longer period after a product is linked to harmful effects, perhaps they will spend more time in the laboratory testing the product before it is marketed.” Id.
Manufacturers may inform the public earlier
“Also, in forming a discovery rule that requires knowledge of wrongdoing, we feel that manufacturers acting in their own self-interest may take steps to begin the statute of limitations running and limit their liability by publicizing the effects of any product they manufactured that is linked to harmful effects. In this way, members of the public will be informed earlier and may be able to take action before their condition becomes severe.” Id.
Foot dragging will not be encouraged
“Moreover, the rule requires reasonable diligence in discovering the wrongful conduct on the part of the manufacturer. Therefore, the statute shall start running when a reasonable person in circumstances similar to plaintiffs’ would have discovered a defendant’s wrongful conduct. See Note, Application of the Pennsylvania Statute of Limitations Discovery Rule in DES Cases, 55 Temp.L.Q. 1149, 1168 (1982). The plaintiff’s conduct in discovering her cause of action will be judged by an objective as well as a subjective standard. If the fact finder determines that the plaintiff did not exercise reasonable diligence, or that a reasonable person in similar circumstances would have discovered the wrongful conduct of the defendant at an earlier date than the plaintiff did in fact discover this conduct, then the earlier date will be used to start the statute running. This objective component of the discovery rule will ensure that foot dragging is neither encouraged nor rewarded.” Anthony v. Abbott Laboratories,490 A.2d 43, 45 (R.I. 1985)
What type of awareness of wrongful conduct is required?
“The defendants finally argue that the statute would never run under this rule because a determination of wrongful conduct is not made until trial. We do not believe this to be the case. The plaintiff does not have to be aware of all the elements of her legal cause of action before the statute begins to run. She has to have “some awareness, or imputed awareness, that her injuries were the result of some wrongdoing on the part of defendants.” Anthony v. Abbott Laboratories,490 A.2d 43, 45 (R.I. 1985) citing, Dawson v. Eli Lilly & Co., 543 F. Supp. at 1339.
The idealistic general rule in RI:
“Article 1, Section 5, of the Rhode Island Constitution provides that “Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which may be received in one’s person.” KELLY v. MARCANTONIO (LEDERBERG, Justice, concurring in part and dissenting in part), Anthony v. Abbott Laboratories,490 A.2d 43, 45 (R.I. 1985)
What is the purpose of a statute of limitation?
According to the top Court in RI, “statutes of limitations that are intended to prevent the unexpected enforcement of stale claims concerning which persons interested have been thrown off their guard for want of seasonable prosecution.” KELLY v. MARCANTONIO 678 A.2d 873 (1996) (LEDERBERG, Justice, concurring in part and dissenting in part)
- “On May 12, 2008, Plaintiff underwent surgery to repair a ventral hernia and was
implanted with a Ventralex™ Hernia Patch (Ventralex Patch), a medical device designed,
manufactured, and distributed by Defendants.
- On October 4, 2011, Plaintiff underwent an additional surgery to remove a portion of the Ventralex Patch. In July 2015, Plaintiff learned she needed a third surgery to remove another portion of the Ventralex Patch.
- On July 13, 2017, Plaintiff filed a Complaint alleging she was severely and permanently injured as a result of the defective nature of the Ventralex Patch.” Id.
Defendant sought to have the ventralex hernia hernia mesh lawsuit dismissed asserting that Plaintiff missed the applicable RI statute of limitation (G.L. 1956 § 9-1-14(b)), which is 3 years in Rhode Island. Bard’s hernia mesh lawyers argued in pertinent part that “Defendants argued that at a minimum, Plaintiff became aware of her injuries and their potential relationship to the
Ventralex Patch when a portion of the device was removed from Plaintiff’s body in October 2011, and therefore argued Plaintiff’s claims are time-barred.”Id.
The victim’s hernia mesh law firm argued that the lawsuit was filed timely within the statute of limitations because the surgical mesh victim “… did not learn of the Defendants’ wrongdoing in connection with the design, manufacture, and marketing of the Ventralex product until the end of 2016.” Id.
Justice Gibney of the Providence Superior Court ruled that the statute of limitations commences,”when the person discovers, or with reasonable diligence should have discovered, the wrongful conduct of the manufacturer.” The court determined “that the Plaintiff’s claims are not herein barred by the statute of limitations.”Id.
What was the prior RI law:
“General Laws 1956 (1969 Reenactment) § 9-1-13(b), as amended by P.L.1978, ch. 299, § 2, the statute of limitations that had applied to product-liability actions prior to 1984, was held unconstitutional in Kennedy v. Cumberland Engineering Co., 471 A.2d 195 (R.I.1984), because it completely denied a claimant access to the courts after ten years from the date the product was purchased, regardless of the merits of the claim. We held that this statute violated article 1, section 5, of the Rhode Island Constitution. Wilkinson, 104 R.I. at 238, 243 A.2d at 753.
Do similar rules apply to medical malpractice statute of limitations in Rhode Island?
The Rhode Island Supreme Court did not implement the ‘discovery of wrongful conduct’ rule in determining the statute of limitations for medical malpractice cases in Rhode Island. “In Wilkinson, this Court adopted the discovery rule for medical-malpractice claims, reasoning that”[t]o construe the statute [of limitations] narrowly so as to preclude a person from obtaining a remedy simply because the wrong of which he was the victim did not manifest itself for at least two years from the time of the negligent conduct, is clearly inconsistent with the concept of fundamental justice. To require a man to seek a remedy before he knows of his rights, is palpably unjust.” Wilkinson v. Harrington, 104 R.I. 224, 236, 243 A.2d 745, 752 (R.I.1968), KELLY v. MARCANTONIO, 678 A.2d 873 (1996) (LEDERBERG, Justice, concurring in part and dissenting in part)
“Because injuries resulting from medical malpractice may go undetected for some time, this Court concluded that it would “prefer to follow the discovery rule in medical malpractice cases because in our opinion the theory behind it is eminently fair and perfectly consistent with the function and nature of limitation acts.” Wilkinson at 239, 243 A.2d at 753. KELLY v. MARCANTONIO (LEDERBERG, Justice, concurring in part and dissenting in part)”
The RI Supreme Court succinctly explains the statute of limitation laws in Rhode Island:
“Generally, a cause of action accrues and the applicable statute of limitations begins to run at the time of the injury to the aggrieved party. Plouffe v. Goodyear Tire and Rubber Co., 118 R.I. 288, 293, 373 A.2d 492, 495 (1977); Romano v. Westinghouse Electric Co., 114 R.I. 451, 459, 336 A.2d 555, 559-60 (1975). In some “narrowly circumscribed factual situations,” Renaud v. Sigma-Aldrich Corp.,662 A.2d 711, 714 (R.I.1995), however, when the fact of the injury is unknown to the plaintiff when it occurs, the applicable statute of limitations will be tolled and will not begin to run until, in the exercise of reasonable diligence, the plaintiff should have discovered the injury or some injury-causing wrongful conduct. Compare Renaud v. Sigma-Aldrich Corp., 662 A.2d 711 (R.I.1995) (holding that, in a product liability case, statute of limitations began to run at the time of injury) with Anthony v. Abbott Laboratories, 490 A.2d 43 (R.I.1985) (holding that, in a drug product-liability case, the running of the statute of limitations begins when the plaintiff discovers, 300*300 or should have discovered, his or her injuries); Lee v. Morin, 469 A.2d 358 (R.I.1983); Wilkinson v. Harrington, 104 R.I. 224, 243 A.2d 745 (1968). The reasonable diligence standard is based upon the perception of a reasonable person placed in circumstances similar to the plaintiff’s, and also upon an objective assessment of whether such a person should have discovered that the defendant’s wrongful conduct had caused him or her to be injured. If a reasonable person in similar circumstances should have discovered that the wrongful conduct of the defendant caused her injuries as of some date before the plaintiff alleged that she made this discovery, then the earlier date will be used to start the running of the limitations period.” Martin v. Howard, 784 A.2d 291 (R.I. 2001) Anthony, 490 A.2d at 47.
“In Wilkinson, this Court held that a medical malpractice cause of action accrues when the plaintiff discovers or should have discovered that he/she has been injured as a result of the physician’s negligent treatment. This discovery rule later was codified in G.L.1956 § 9-1-14(b). In Lee,the Court held that the discovery rule applied to improvements in real estate, when the evidence of injury to property, resulting from the negligent act upon which the action is based, is sufficiently significant to alert the injured party to the possibility of a defect. 469 A.2d at 360. Again, in Anthony, we held that in a drug, product-liability action where the manifestation of an injury, the cause of that injury, and the person’s knowledge of the wrongdoing by the manufacturer occur at different points in time, the running of the statute of limitations would begin when the person discovers, or with reasonable diligence should have discovered, the wrongful conduct of the manufacturer.” WILKINSON v. HARRINGTON, 243 A.2d 745 (1968) Martin v. Howard, 784 A.2d 291 (R.I. 2001), Anthony, 490 A.2d at 46.
“In Wilkinson this court held that a medical-malpractice cause of action accrues when the plaintiff discovers or, in the exercise of reasonable diligence, should have discovered that he or she has been injured as a result of the physician’s negligent treatment. This so-called discovery rule was later codified as § 9-1-14.1(b). In commenting on the then— existing statute of limitations applicable to medical-malpractice actions, this court stated:
“[T]o construe the statute narrowly so as to preclude a person from obtaining a remedy simply because the wrong of which he was the victim did not manifest itself for at least two years from the time of the negligent conduct, is clearly inconsistent with the concept of fundamental justice. To require a man to seek a remedy before he knows of his rights, is palpably unjust.” RENAUD v. SIGMA-ALDRICH CORPORATION, Wilkinson, 104 R.I. at 238, 243 A.2d at 753.
In RENAUD v. SIGMA-ALDRICH CORPORATION, the Supreme Court of Rhode Island stated:
“The plaintiff’s cause of action accrued on February 3, 1988, the date she was exposed to acetic acid fumes and was aware that she had been injured as a result. The three-year statute of limitations expired on February 3, 1991. Because the amended complaint was not served upon Fisher until February 1993, the action against Fisher was time barred. The petition for certiorari is granted, and the order denying Fisher’s motion to dismiss is quashed. The papers are remanded to the Superior Court with direction to grant Fisher’s motion to dismiss.” Id.
Statute of limitations are legal in RI
“It is well settled that legislatures may enact reasonable limits on parties’ rights to have their claims adjudicated by the courts. See, e.g., United States v. Kubrick, 444 U.S. 111, 125, 100 S.Ct. 352, 361, 62 L.Ed.2d 259, 271 (1979); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 463-64, 95 S.Ct. 1716, 1722, 44 L.Ed.2d 295, 303 (1975); Young v. Park, 116 R.I. 568, 573, 359 A.2d 697, 700 (1976). As we stated in Kennedy v. Cumberland Engineering Co., 471 A.2d 195 (R.I.1984): “[C]learly, art. 1, sec. 5, of the Rhode Island Constitution should not be interpreted to bar the Legislature from enacting any laws that may limit a party from bringing a claim in our courts. * * * Statutes of limitation have been upheld as reasonable legislative determination[s] of when to cut off a plaintiff’s right to bring an existing claim.” Id. at 198 (citing Johnson, 421 U.S. at 463-64, 95 S.Ct. at 1722, 44 L.Ed.2d at 303; Young, 116 R.I. at 573, 359 A.2d at 700). Unlike § 9-1-13(b), which we held unconstitutional in Kennedy because it completely denied court access to product-liability claimants that were injured by a product more than ten years old, § 9-1-14(b), providing that actions for personal injuries shall be commenced within three years after the cause of action accrues, is a reasonable legislative enactment that fully comports with art. 1, sec. 5, of the Rhode Island Constitution.’
Bard mesh we are reviewing for potential of hernia mesh lawsuit:
- Composix EX
- 3D Max
- Perfix Plug
- Composix Kugel
- Ventrio mesh
- Ventrio ST
- Sepramesh IP Composite
- Ventralex ST
- Ventralex hernia mesh