Anytime we start to write a post about a decision from New York, our heads start swimming in music lyrics.  Rose trees never grow in New York City…  Concrete jungle where dreams are made of…  Living just enough for the city…  Soon you will be on Sugar Hill in Harlem…  I don’t care if it’s Chinatown or on Riverside… Mom’s cookin chicken and collard greens…  Not only are there simply so many songs written about or inspired by New York, there are so many excellent songs written about or inspired by New York.  From Stevie Wonder to U2 to Paul Simon to the Beastie Boys and the list goes on . . . . Joel, Sinatra, Croce, Waits, Gershwin, Cohen . . .

As well as New York is known for its sound, our real goal today is to remind you it should also been known for its statute of limitations.  The opportunity to remind you is brought to us by the Second Circuit in Baker v. Stryker Corp., 2019 U.S. App. LEXIS 13869 (2nd Cir. May 9, 2019).  Plaintiff had a dental device implanted in August 2006 and in May 2016 filed suit alleging negligence, strict liability, and breach of warranty against the manufacturer.  Plaintiff’s sole argument was that he could not have discovered his injury until his first implant was removed in 2013.  Id. at *4.  But, that’s not the law in New York.  From the Battery to the top of Manhattan…  Actually from Tottenville to Massena since it’s the law of the state.

New York’s statute of limitations for products liability is three years and that starts to run from the date of injury.  Id. at *2-3.  That means the statute starts to run “when plaintiff first noticed symptoms, rather than when a physician first diagnosed those symptoms.”  Id. at *3.  So, it didn’t matter what the doctor diagnosed when he removed the implants.  The important facts are that plaintiff testified he started feeling pain within days of when the device was implanted in 2006.  He described the pain as “radically different from the pain he experienced” in earlier surgeries and that he also felt a choking sensation.  Id. at *3-4.  Therefore, his personal injury claims accrued in August 2006 and were time-barred.  New York where hustle’s the name of the game.

In New York, the discovery rule that plaintiff tried to rely on only applies to latent exposure cases.  See C.P.L.R. §214-c.  In other words, it was meant for toxic torts.  Baker at *5.  But even if it did apply, “discovery” is defined as “discovery of the physical condition and not . . . the more complex concept of discovery of both the condition and the nonorganic etiology of that condition.”  Id.

Plaintiff’s breach of warranty claim was similarly time-barred because that four-year statute began to run at the time of sale or entry into the stream of commerce.  Id.  So, the latest date of accrual for that claim was at the time of implant which was after the manufacturer sold the device to the hospital.  Id.   The dismissal was affirmed.  It comes down to reality…

And while it’s still a bit cold and dreary in New York right now, we’ll try to conjure up some warm thoughts by ending with — It’s not far, not hard to reach.  We can hitch a ride to Rockaway Beach…