We don’t usually blog about statute of limitations cases because the issues tend be state and fact specific.  But Boyd v. Allergan PLC, 2023 U.S. Dist. LEXIS 115779 (D. Org. Jul. 6, 2023) addresses a fact situation we see repeated often enough in medical device cases that we thought it was worth reporting on.

Plaintiff received silicone-filled breast implants in 2006.  Following the rupture of one of the implants, they were both removed in 2017.  The statute of limitations for personal injury in Oregon is 2 years.  Plaintiff, however, did not file her lawsuit until 2022 – 5 years after her explant surgery.  She alleges she suffered complications before the implants were removed, injuries at the time of removal, and development of the autoimmune disease Lupus.  Id. at *1-2.  Plaintiff’s argument for why her claim was timely filed is that she first learned of the alleged connection between silicone breast implants and Lupus from her doctor in August 2020.  In ruling to dismiss the case, the court explained why this later acquired knowledge did not save her claims.

Under the Oregon discovery rule, the statute of limitations starts to run when a plaintiff “know[s] or reasonably should know facts making them aware of a substantial possibility that a tot was committed against them by the defendant.”  Id. at *3.  Importantly, plaintiff does not need to know the full extent of her injury for the clock to start running.  Said slightly differently, the detection of additional injuries from the same tortious conduct “does not restart the statute of limitations clock.”  Id. at *4. 

So, while plaintiff tried to argue the statute did not begin to run until she discovered the possible connection between the implants and her Lupus, the court found ample evidence that plaintiff’s revision surgery for her ruptured breast implant in 2017 put her on sufficient notice to satisfy the Oregon discovery rule.  In fact, plaintiff alleges injuries as a direct result of the rupture, like the need for additional surgery.  She also alleged that defendant failed to warn her of the risks of rupture, leakage, and deterioration—all risks she was on notice of in 2017. 

As for plaintiff’s Lupus, even if a possible nexus could not have been discovered in 2017 (which the court questions based on available public information), the “Lupus injury stems from the same implant rupture injury” known to plaintiff in 2017.  The clock starts to run when plaintiff is or should be aware of three things:  the injury, the cause of the injury, and the identity of the tortfeasor.  Id. at *10.  Plaintiff had knowledge of all three in 2017 – the revision surgery and related complications, the allegedly defective breast implant, and the manufacturer of the implant.  Because Lupus is simply another aspect of the original injury, it does not reset the clock for this or any of plaintiff’s injuries related to the same conduct.        

Therefore, plaintiff’s claims were dismissed with prejudice as time-barred.  A good reminder in medical device cases that revision or explant surgery should be the latest time when the statute of limitations starts to run.