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The statute of limitations in a lawsuit claiming a defective medical device begins to run when the patient reasonably should have known that there was a defect in the implanted product. Where the treating doctor makes assurances to the patient regarding the defective medical device the patient may reasonably be kept from investigating further and discovering the defect. Thus the statute of limitations doesn’t begin to run while the doctor is reassuring the patient, according to the federal judge who is presiding over multi-district litigation in a West Virginia federal district court.

In such cases, the court held that a summary judgment dismissal of the case prior to trial is inappropriate. The manufacturer of the device, Boston Scientific, filed for dismissal of the case based on its claim that the statute of limitations was expired when the complaint was filed. A summary judgment motion is usually made after discovery and prior to trial.

The motion may claim that there are legal issues, such as the statute of limitations violations in this case that prohibit the case from being heard by a jury. Generally, the motion claims that there are no substantial disputed issues of fact for a jury to decide. The company argued that the plaintiff had four corrective surgeries in 2010 and should have been then alerted to investigate the product, thus triggering the statute to start running. The judge ruled that there was a disputed factual issue regarding whether the patient’s doctor misled her into not investigating.

The judge relied on the evidence showing that the doctor’s reassuring representations to the patient. All of the multi-district cases contain a primary claim that the defective medical device is the product of a design defect. It is alleged that the product was designed with a high propensity to break down in the patient’s body at some point, and to cause serious bodily injury. The subsequent marketing of the defective and dangerous product in West Virginia and other states without a warning as to the dangers is a second major premise of most of the lawsuits.

Source: massdevice.com, Boston Scientific loses bid to dismiss pelvic mesh bellwether, Brad Perriello, Jan. 21, 2014