The Third Circuit Court of Appeals addresses the statute of limitations in hip device in product liability claim.

The Third Circuit Court of Appeals addresses the statute of limitations in hip device in product liability claim.

The Third Circuit Court of Appeals addresses the statute of limitations in hip device in product liability claim.

In Adams v. Zimmer US, Inc., No. 18-3011 (3d. Cir. Nov. 20, 2019), the Third Circuit Court of Appeals addressed the statute of limitations in a product liability claim involving a hip replacement.

Plaintiff Marilyn Adams consulted Dr. Prodromos Ververeli for hip pain in September 2010. He diagnosed advanced degenerative arthritis and recommended a total hip replacement. Ms. Adams understood the hip replacement would last 15-20 years, but that it might wear down with use before then. Adams underwent hip replacement with a Zimmer hip device on January 18, 2011.

After about a year and a half, Adams began experiencing severe pain. Dr. Ververeli was able to successfully treat her pain in 2013 without removing the implant, but Ms. Adams’s hip problems returned in November 2014 when she dislocated her hip in Florida.

An emergency medicine physician put the implant back in place and Adams then saw Dr. Ververeli when she returned home in early January 2015. An X-ray showed calcification around the implant, which Dr. Ververeli thought “could have been possibly related to ongoing tissue reaction or a reaction to the actual dislocation event.” Following a CT scan, which showed a local adverse tissue reaction, Dr. Ververeli diagnosed “right total hip metallosis” (metal wear causing tissue reaction) and recommended hip revision surgery to replace the metal femoral head of her hip implant with a ceramic one. Adams underwent the revision surgery on February 12, 2015.

Though Dr. Ververeli expected to replace only components of the implant around the hip socket, upon opening Adams’s hip, Dr. Ververeli found her muscle had largely deteriorated and metal debris had taken over much of the area. He discovered a pseudotumor roughly the size of a baseball. Rather than replacing the socket and implant lining, which were in fact largely “intact,” he replaced all of the main components of the implant hip, which had been discharging excessive and potentially toxic metal debris into Adams’s hip.

Notwithstanding surgery, Adams continued to experience hip pain after the surgery and, on February 10, 2017, she brought a product liability action against Zimmer. She alleged the implant was defectively designed in a way that led to “excessive fretting” (i.e., scraping between the pieces of the implant), corrosion, and metal wear debris. She further alleged Zimmer had failed to warn her of those risks. Zimmer moved for summary judgment on the ground that Adams’s claims were time-barred. The District Court agreed and entered summary judgment on statute-of-limitations grounds. Adams appealed.

In Pennsylvania, a prospective plaintiff has two years to bring a design defect claim like Adams’s. See 42 Pa. Cons. Stat. § 5524(2). The two-year statute of limitations generally begins to run “when an injury is inflicted.” Wilson v. El-Daief, 964 A.2d 354, 361 (Pa. 2009). But “where the plaintiff’s injury or its cause was neither known nor reasonably ascertainable,” the “discovery rule” tolls the statute of limitations. Nicolaou v. Martin, 195 A.3d 880, 892 (Pa. 2018); Fine v. Checcio, 870 A.2d 850, 858 (Pa. 2005). The discovery rule accordingly protects parties who are reasonably unaware of latent injuries or suffer from injuries of unknown etiology. Nicolaou, 195 A.3d at 892 & n.13; Fine, 870 A.2d at 858. Under the Pennsylvania discovery rule, the “commencement of the limitations period is grounded on ‘inquiry notice’ that is tied to ‘actual or constructive knowledge of at least some form of significant harm and of a factual cause linked to another’s conduct, without the necessity of notice to the full extent of the injury, the fact of actual negligence, or precise cause.’” Gleason v. Borough of Moosic, 15 A.3d 479, 484 (Pa. 2011) (quoting Wilson, 964 A.2d at 364). The statute of limitations accordingly begins to run when the plaintiff knew or, exercising reasonable diligence, should have known (1) he or she was injured and (2) that the injury was caused by another. See Coleman v. Wyeth Pharms., 6 A.3d 502, 510–11 (Pa. Super. Ct. 2010).

That “reasonable diligence” standard is an objective one, but at the same time “sufficiently flexible” to “take into account the differences between persons and their capacity to meet certain situations and the circumstances confronting them at the time in question.” Fine, 870 A.2d at 858 (internal citation omitted); see also Nicolaou, 195 A.3d at 893. Plaintiffs generally will not be charged with more medical knowledge than their doctors or health care providers have communicated to them. See Wilson, 964 A.2d at 365. A plaintiff bears the burden of showing her reasonable diligence. Nicolaou, 195 A.3d at 893.“Where, however, reasonable minds would not differ in finding that a party knew or should have known on the exercise of reasonable diligence of his injury and its cause… the discovery rule does not apply as a matter of law.” Fine, 870 A.2d 858–59.

Here, Dr. Ververeli’s testimony that he did not know Adams had an injury caused by the implant until the revision surgery shows his “metallosis” diagnosis could not have communicated the pertinent understanding of injury or cause to Adams. Therefore, the Court held that while a jury may ultimately credit Zimmer’s contention that Adams knew or should have known about her injury at some point before the February 2015 revision surgery, Adams has raised factual issues of notice and knowledge that Pennsylvania law requires a jury to resolve.

As in several Pennsylvania Supreme Court cases before this one, the question of whether a plaintiff “should have acted with greater diligence to investigate” or otherwise should have known of her injury earlier “can only be seen as an issue of fact.” Gleason v. Borough of Moosic, 15 A.3d 479, 487 (Pa. 2011) Accordingly, the Court determined that factual disputes remain concerning application of the discovery rule. Therefore, it reversed the trial court’s decision granting summary judgment and remanded for further proceedings.