(The Butler Snow members of the DDL blog had nothing to do with today’s post.)

Intricate issues of New York law have been in the news lately — but that has been about criminal law.  By contrast, New York’s application of the statute of limitations in civil tort cases did not surface on CNN, Fox, or MSNBC last week.  For that matter, this blog would not ordinarily discuss a court’s interpretation of the statute of limitations.  Such interpretations are usually pedestrian and fact-driven.  

But today’s decision, In re Ethicon Physiomesh Flexible Composite Hernia Mesh Products Liability Litigation, 2924 U.S. Dist. LEXIS 93722 (N.D. Ga. April 9, 2024), in which the court granted summary judgment on statute of limitations grounds, hits some important, generally applicable issues. 

The plaintiff claimed that she had been injured by hernia mesh that had been implanted in her. New York law applied because she was a citizen of New York, was implanted with the mesh in New York, sustained her alleged injuries in New York, and underwent a revision surgery in New York.  Her complaint included causes of action for negligence, breach of express and implied warranties, and strict products liability. 

Under New York law, the statute of limitations for personal injury torts is three years from the date of injury. Thus, the “statute of limitations issue turns upon when determination of Plaintiff’s injury occurred such that claim accrual began. Plaintiff argues that the ‘when’ is a matter to be decided by a jury.”  Wrong. The court decided the issue, and decided it against the plaintiff. 

First, the court held that New York law starts the statute of limitations running from the date symptoms first occur. There is no need to wait for any definitive medical diagnosis: the “three year limitations period runs from the date when plaintiffs first noticed symptoms, rather than when a physician first diagnosed those symptoms.” Symptoms = injury.  

Second, there is no discovery rule in New York, except for toxic tort cases. As is typical, the plaintiff argued for a discovery exception.  Often, plaintiffs end up arguing that such discovery does not happen until a helpful plaintiff lawyer tells plaintiffs they have a case.  Maybe an action does not accrue until a plaintiff’s lawyer hits the send button for electronic filing of the complaint.  Yes, plaintiff arguments are often that ridiculous.  But the court in this case was not having any of that.  

Still, there was that pesky New York statutory discovery exception  for actions “to recover damages for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances.”  But medical device cases are not toxic torts, and medical device injuries are not latent.  In this case, the plaintiff felt pain from the mesh way, way back.  She was on inquiry notice.  

The plaintiff “erroneously” focused on “discovery of the hernia defect that resulted in the revision surgery” as the necessary trigger.  Wrong, again. “Simply put, under New York law, the diagnosis of Plaintiff’s hernia recurrence is not the trigger for commencing the three year statute of limitations. As harsh as it may seem, this rule is unaltered even when there are multiple potential causes for symptoms and even in the case of misdiagnosis.”

Third, the plaintiff’s warranty claims were also barred, since the four year New York warranty statute of limitations runs from the delivery of the product.  The plaintiff endeavored to toll or enlarge this statute of limitations by extending the warranties to future performance. But the future performance exception is narrow.  There must be evidence of an explicit extension of warranty of future performance.  Mere promotion of a medical device does not expressly warrant its future performance.  In any event, the plaintiff “failed to produce evidence of her reliance.”

Finally, there can be no express warranty of future performance in an implied warranty case.  An “implied warranty, by definition, cannot contain an explicit guarantee.”