No Illinois court decisions currently interpret when the statute of limitations expires on De Puy Hip Replacements lawsuits, but there are decisions by both the Illinois Supreme and Appellate courts that provide guidance. Illinois products liability statute of limitations is found at 735 ILCS 5/13-213(d) which provides that: ” ...the plaintiff may bring an action within 2 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…but in no event shall such action be brought more than 8 years after the date on which such personal injury, death…occurred.”
The Illinois Supreme Court has held: “...the statute starts to run when a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused.” Knox v. Celotex, 88 Ill. 2d 407, 414-415, 430 N.E. 2d 976, 980 (1982). The Illinois high court has also stated that: “…an injured is not held to a standard of knowing the inherently unknowable…yet once it appear that an injury was wrongfully caused, the party may not slumber on his rights.” Nolan v. Johns-Mansville, 85 Ill. 2d 161, 171, 421 N.E. 2d 864,, 868 (1981).
On August 24, 2010, De Puy Orthopedics, Inc. instituted a recall of its ASR XL and ASR Hip Replacement Systems. These systems feature chromium and cobalt in its ball-and-socket design. In light of the Illinois decisions interpretting the “discovery rule” it appears that patients with De Puy hip replacements that have failed have 2 years from the date they noticed the failure to file suit (See Aug. 5, 2011 blog re: failures). A fair interpretation of Illinois law will lead to the conclusion that the recall of August 24, 2011, puts any person on notice at the time the failure is noticed that it was wrongfully caused by a design defect in the hip replacement system.
A recent analysis of the “discovery rule” is contained in Matias v. I-Flow, 959 N.E. 2d 94 (Ill. App. 2011).The Matias court focused on “wrongful cause” in determining when the two years begins running by stating: “it is a prerequisite for triggering of the statute of limitations that the injured plaintiff have actual or constructive notice of the possibility that someone is at fault for the injury’s existence.” In De Puy cases the the recall of August 24, 2010, may be held to be the triggering event.
Patients and attorneys who have clients with failed De Puy hip replacement systems should not delay in bringing suit on the belief that they weren’t sure what caused the failure-the recall will most likely be determined to be the “triggering event” in imputing knowledge. Should you so choose feel free to call Edmund Scanlan, an experienced product liability trial lawyer, toll free at 877-494-1309 for a free consultation. I am currently representing several clients who have failed De Puy hip replacement systems. Do not delay.
