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Rhode Island Court Refuses to Dismiss Hernia Mesh Lawsuit Against Bard, Davol


There are a number of pending lawsuits throughout the country dealing with hernia mesh. These are surgical patches, sheets, and plugs used to help treat hernia patients. Unfortunately, many hernia mesh recipients learn years later develop complications that often require additional surgery or other medical treatment.

Judge Rejects “Statute of Repose” Defense

A legal issue that comes up in many of these hernia mesh cases is the statute of limitations or statute of repose. In every state there are certain time limits to bring a personal injury claim. When it comes to something like a car accident–where the injuries are immediately known and apparent–these deadlines are usually not an issue. But with something like a hernia mesh defect, the patient may not know there is a problem until several months or years later. And in some cases, it may be too late for them to take legal action once the harm is discovered.

Here is a recent example from Rhode Island where the plaintiff’s claim fortunately survived an attempt to dismiss it for lack of timeliness. The plaintiff in this case received 3DMax hernia mesh during a hernia operation that took place in September 2015. Nearly 11 years later, in March 2016, the device was removed and caused “physical and mental injuries to the plaintiff,” according to court records.

The plaintiff subsequently filed a lawsuit in Rhode Island state court against the companies responsible for designing, manufacturing and distribution 3DMAx–Davol Inc. and C.R. Bard Inc. Davol is based in Rhode Island, although the plaintiffs live in Ohio and that is where the surgery occurred. (Bard is based in New Jersey.)

The defendants moved to dismiss the case. They argued the lawsuit was barred by Ohio’s statute of repose. This is basically a rule that states a product liability claim against a manufacturer must be brought within 10 years of the original delivery to the “first purchaser.” In other words, since more than 10 years had elapsed between the time the plaintiff received the hernia mesh and the time he filed his lawsuit, his claims were barred under Ohio law.

In response, the plaintiff argued that Ohio law did not apply to this case. Instead, the plaintiff said his claims should be assessed under Rhode Island law. And the Rhode Island Supreme Court struck down a similar 10-year statute of repose as unconstitutional in 1984.

The trial judge ultimately agreed with the plaintiff that Rhode Island law should apply to this case, so the plaintiff’s lawsuit could proceed. But the judge noted that even if he applied Ohio law, there was “reasonable doubt as to the applicability of the statute of repose” to this case. Ohio makes two key exceptions to the 10-year rule–for cases involving fraud on the part of the manufacturer or claims involving injuries arising from medical devices–and both apply to the plaintiff’s complaint here.

Speak with a Tennessee Hernia Mesh Attorney

Pharmaceutical companies will try and take advantage of any law they can to escape liability for injuring patients. This is why it is crucial to work with an experienced Tennessee hernia mesh lawyer who will fight for your rights in court. Contact the offices of Fox, Farley, Willis & Burnette, Attorneys at Law, if you need legal advice or assistance today.




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