Marilyn Adams had a long history of hip pain. In September 2010, she was diagnosed with advanced degenerative arthritis.
Her orthopedic surgeon recommended a total hip replacement. She was told that the Zimmer hip device implanted in January 2011 could be expected to last 15-20 years.
However, in late 2012, Adams started experiencing severe hip pain. The cause was not clear. Her February 2015 revision hip surgery revealed the Zimmer implant had been discharging excessive and potentially toxic metal debris into Adams’s hip.
Pennsylvania’s discovery rule delays the start of the statute-of-limitations period until a plaintiff or patient knows or reasonably should know that he or she has suffered an injury caused by another.
In Illinois, the discovery rule is somewhat different, although the statute of limitations is still two years. An extension of the statute of limitations allows up to a maximum of eight years in product liability injury cases unless the plaintiff is a minor or under a legal disability; in those cases, the statute of limitations could be extended even longer. According to the Illinois Code of Civil Procedure § 5/13-213(d), “The plaintiff may bring an action within two years after the date on which the claimant knew, or through the use of reasonable diligence should have known, of the existence of the personal injury, death or property damage, but in no event shall such an action be brought more than eight years after the date on which such personal injury, death or property damage occurred.”
Adams claimed that she reasonably did not know until February 2015 that the implant caused the injuries for which she filed suit in February 2017. Zimmer argued that Adams should have discovered her injury when she agreed to undergo the revision surgery.
The U.S. District Court rejected Adams’s claim as untimely under the two-year statute of limitations.
The U.S. Court of Appeals for the Third Circuit reversed. In entering summary judgment, the federal district court resolved the issues of fact regarding the timing of her discovery that her pain was caused not by her poor adjustment to the implant, but instead by the implant itself.
The state law delegates to a fact finder any genuine dispute as to when a plaintiff should reasonably have discovered his or her injury. In other words, the fact finder, the jury, should be allowed to determine the timing; thus, the dismissal on summary judgment was reversed for further disposition at the federal district court level, meaning there are facts yet to be decided.
Marilyn Adams v. Zimmer U.S., Inc., et al., 18-3011 (U.S. Court of Appeals for the Third Circuit, Nov. 20, 2019).
Kreisman Law Offices has been handling product liability defect lawsuits, hip replacement injury lawsuits, hip replacement defect cases, traumatic brain injury cases and wrongful death lawsuits for individuals, families and loved ones who have been injured, harmed or killed by the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Melrose Park, Franklin Park, Glen Ellyn, Wheaton, Glendale Heights, Carol Stream, Woodridge, Bolingbrook, Orland Park, Midlothian, Blue Island, South Holland, Calumet City, Oak Park, Oak Lawn, Glenview, Northbrook, Chicago (Edgewater, Belmont Gardens, Lakeview, Lincoln Square, Uptown, Bronzeville, Old Town, South Loop, Near West Side, Garfield Park, Humboldt Park, Pilsen, McKinley Park, Little Village), Stickney, Cicero, Joliet, Western Springs, Aurora, LaGrange, Justice, Bedford Park and Harwood Heights, Ill.
Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.
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