Attorneys Kelsey Stokes and Sylvia Davidow defend against a lower court’s law interpretation in a Hernia Mesh case.

FNJ attorneys filed a petition earlier this month in disagreement with the interpretation of North Carolina’s statue of limitations on product liability claims. Despite the hernia mesh case being initially tossed, attorney Kelsey Stokes continues to fight for our client.

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A Raging Hernia Mesh Statute of Limitations Battle

In one of our hernia mesh cases against Johnson & Johnson and its medical device subsidiary Ethicon Inc., Kelsey Stokes filed a petition that argued against the interpretation of a law that was used to toss our client’s hernia mesh injury lawsuit. The petition argued that the Third Circuit panel wrongly applied an older version of the statue which cited a shorter time limit and favored the lower court’s ruling that the case was filed too late.

In the older version of the North Carolina statue, a product liability claim must be brought in when the product was first consumed, however, this six-year window was expanded to 12-years in 2009. Any claim involving an injury taking place before October 1, 2009 will fall under the six-year window.

petition Fleming Nolen Jez Hernia mesh

The main question is whether our client’s injury accrued when he had to have his mesh replaced in 2019 or if it was when the device was implanted in March 2009, seven months before the amendment. The lawsuit was filed in March of 2021, one day before the 12-year limit would expire under the amended window.

According to the petition that was filed, the original implantation date in 2009 was used, but his claim didn’t accrue until the replacement surgery in 2019, well after the amendment. By mixing the implantation date with the date of his claim, the panel incorrectly applied the six-year limit to his case.

"Everybody agrees it starts from the date of the initial consumption," Kelsey Stokes said. "The question is which time frame applies, the six year or the 12 year? And that is determined by another question, which is when the injury occurred. We are hopeful that once they look at that, they will see that that's the issue."

The Fight Continues

The petition argues that the panel misunderstood the distinction between the trigger date and the accrual date in its opinion, which stated in part, “Under [our client’s] argument, the period to bring a product liability claim under the 12-year statute would begin to run both on the date of the initial purchase and on the date when the plaintiff experiences an injury,” and called the outcomes of that argument “absurd.”

To rectify this issue, the petition asks for the panel to have a rehearing to review the initial ruling made by the lower court. Like with other hernia mesh cases, it’s important to have good representation when dealing with the different challenges of the courts.

Learn more about the attorney’s involved with this case:

Kelsey Stokes

Sylvia Davidow

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