A New Jersey federal judge has declined to dismiss product liability and personal injury claims involving Ethicon, Inc.’s Prolene Hernia System Patch, as it’s not yet clear when the statute of limitations governing those claims actually began to run.
Plaintiff Domingo Gonzalez of Texas received the Prolene Hernia System Patch in 2011, during surgery to repair an inguinal hernia.
According to his complaint, the Ethicon hernia mesh was removed in January 2017 after Gonzalez experienced chronic abdominal pain and multiple infections. In December 2018, he filed suit against Ethicon in the U.S. District Court, District of New Jersey, asserting claims of negligence, strict product liability, breach of express and implied warranties, and violation of consumer protection laws. (Case No. 18-17658)
New Jersey imposes a two-year statute of limitations on personal injury and product liability claims, which begins running once a plaintiff knew or should have known the cause of their injuries. Ethicon argued that Gonzalez’s filed his hernia mesh lawsuit too late and requested it be dismissed. But Gonzalez maintains that the statute of limitations didn’t begin to run until the day he underwent hernia revision surgery in January 2017.
In his September 11th Order, however, U.S. District Judge Peter G. Sheridan wrote that the statute of limitations question “cannot be resolved by looking to the date on which a plaintiff had a revision surgery” as “[revision surgery, alone, only tells a plaintiff that she is suffering from complications as a result of her implant procedure, but it is silent as to the cause of that complication.”
Because Gonzalez’s complaint was unclear as to when he knew or should have known sufficient facts, its not clear at this time whether or not the claims are, in fact, time barred.
“Only ‘where it affirmatively appears on the face of the complaint that the action pleaded is barred by the statute of limitations, the defense can be raised by motion to dismiss,’” he wrote.
Judge Sheridan did agree to dismiss Gonzalez’s breach of warranty claims, which are governed by a four-year statute of limitations. That deadline starts tolling “when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach,” the Order notes.
Ethicon’s Prolene Hernia System Patch consist of two layers of polypropylene connected by a polypropylene tube. Following implantation, the polypropylene triggers inflammatory reaction, which purportedly promotes healing and reduces the likelihood of hernia recurrence and chronic pain. However, a growing number of plaintiffs claim that this design is defective and actually creates an unreasonable risk of injury and harm, including pain, dense adhesion formation, organ complications, mesh shrinkage, hernia recurrence, seroma, fistula formation, and infection.
Ethicon is also facing thousands of lawsuits over Physiomesh Flexible Composite mesh, another polypropylene product that was withdrawn from the market in March 2016 due to high rate of hernia recurrence. Most of those Ethicon hernia mesh lawsuits are undergoing centralized pretrial proceedings in the U.S. District Court, Northern District of Georgia, where trials are tentatively scheduled to begin next April.