Statute of Limitations

July 23rd, 2019 by Rieders Travis in Statute of Limitations

STATUTE OF LIMITATIONS-PRODUCTS LIABILITY-PELVIC MESH Kennedy v. Ethicon, 2020 U.S. Dist. LEXIS 127393 (E.D. Pa. July 20, 2020) Leeson, Jr., D.J.  Summary judgment granted because the court determined that action commenced in multi-district litigation on July 2, 2013.  Transferred to the court in January 2020.  Plaintiffs’ claims accrued no later than May 4, 2011.  The court examined all of the discovery and based its decision on Pennsylvania law.  Plaintiffs obviously utilized or attempted to utilize the discovery rule.  At her deposition, plaintiff Kennedy testified on multiple occasions and in no uncertain terms that she was aware of the relationship between the medical condition she experienced in March, April and May 2011 and her pelvic mesh.  She testified that she thought the Ethicon product was faulty.  She said she had observed the migration herself during the cystoscopy by watching the procedure on camera.  The court was dismissive of self-serving deposition testimony elicited by plaintiffs’ counsel and by her self-serving affidavit in opposition to the summary judgment.  Plaintiffs did not make any attempt to explain the contradiction in Kennedy’s testimony.  Kennedy’s problems were not lingering post-surgical conditions and the doctor did not…

STATUTE OF LIMITATIONS-VICARIOUS LIABILITY-AMENDMENT OF COMPLAINT-AMPLIFICATION

November 28th, 2017 by Rieders Travis in Statute of Limitations

Shifflett v. Lehigh Valley Health Network, Inc., et al., No. 2293 EDA 2016 (Pa. Super. Nov. 9, 2017) Solano, J.  Lehigh Valley Health Network and Lehigh Valley Hospital appeal from the judgment against it on a general damage verdict of $2,391,620.  The appellate court concluded that the second amended complaint pleaded a new cause of action for vicarious liability against Lehigh Valley for the negligent actions of a nurse that did not appear in the plaintiff’s first amended complaint.  This new cause of action was barred by the statute of limitations.  Because the verdict returned was general as to damages, it is not possible to tell what damages were awarded because of this error and therefore the case was sent back to the trial court for a trial on damages.  The lower court said that the amendment to the complaint after the statute of limitations ran was merely an amplification of prior pleading.  The court rejected this.  This is a warning to counsel not to rely upon amplification when attempting to amend a complaint after the statute of limitations runs.  The amended complaint added claims of improper medical treatment after…

STATUTE OF LIMITATIONS-MEDICAL MONITORING CLAIM-TOLLING

August 3rd, 2017 by Rieders Travis in Statute of Limitations

Blanyar v. Genova Products, 2017 U.S. App. LEXIS 11685 (3rd Cir. June 30, 2017) Vanaskie, C.J.  Under Pennsylvania law, the statute of limitations for a medical monitoring claim is two (2) years.  The discovery rule tolls the statute of limitations during the plaintiff’s complete inability, due to facts and circumstances not within his control, to discover an injury despite the exercise of due diligence.  The statute of limitations begins to run when the plaintiff knows or, in the exercise of reasonable diligence, should have known:  (1) that he has been injured; and (2) that his injury has been caused by another’s conduct.  Plaintiff must use all reasonable diligence to inform himself or herself of the relevant facts.  In a medical monitoring case, the injury occurs when plaintiff is placed at a significantly increased risk of contracting a serious blatant disease.  Thus, for the discovery rule to apply appellants must not have known and reasonably could not have discovered the dangers of chemical exposure two (2) years before the filing of their complaint.  Because none of the appellants have alleged that they have suffered any ill effects due to their work…

STATUTE OF LIMITATIONS-MINORS TOLLING STATUTE-SEXUAL ABUSE

July 24th, 2017 by Rieders Travis in Statute of Limitations

Application of the Minor Tolling Statute and the Statute of Limitations in a Sexual Abuse Case S.J. v. Gardner, 2017 Pa. Super. LEXIS 511 (July 11, 2017) Stevens, P.J.E.  S.J., a minor, by and through her guardians, B.J. and C.J. (collectively “Appellants”) appeals the order entered by the Honorable Angela R. Krom of the Court of Common Pleas of Franklin County, granting Appellee Calvin M. Gardner’s cross-motion for summary judgment and dismissing S.J.’s civil action for damages caused by the sexual abuse perpetrated on her by Appellee. Appellants specifically contend that the trial court erred in finding S.J.’s action was time-barred and that the Minority Tolling Statute did not toll the relevant statute of limitations. We reverse the order granting summary judgment and remand for further proceedings.  Appellants argue that the trial court incorrectly found that S.J.’s parents, who filed this lawsuit on S.J.’s behalf, could not invoke the protection of the Minority Tolling Statute and were still required to comply with the two-year statute of limitations applicable to intentional torts. The trial court suggested that the statute must only be applied to allow minors to wait until they reach…

STATUTE OF LIMITATIONS-WIRE TAP ACT-TWO YEARS

January 26th, 2016 by Rieders Travis in Statute of Limitations

The Statute of Limitations for the Wire Tap Act Is Two Years McCulligan v. Pennsylvania State Police, 123 A.3d 1136 (Pa. Cmwlth. 2015).  McCulligan alleges that detectives and others intentionally violated the Wiretapping and Electronic Surveillance Control Act during the course of an investigation leading to the plaintiff's incarceration.  Preliminary objections were sustained, and the petition for review was dismissed.  The action under Section 5725 of the Wiretap Act is barred by the statute of limitations.  The statute of limitations is two years.  Two-year period commences after the plaintiff learned of the alleged unlawful wiretapping.  It was more than two years in this case.  Therefore, the case was properly thrown out.