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LawTalk, Attorney
Category: Legal
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Experience:  I am a practicing attorney with more than 30 years of experience in the legal field.
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The applicability of statute NY 214 regarding medical

Customer Question

The applicability of statute NY 214 regarding medical product liability limitations.
In May of 2013, I had a custom-made yet defective artificial bone implant manufactured by a well-known national pharmaceutical company removed that was placed in August 2006. The surgery, which involved several other procedures yielded six years of continuous pain and discomfort, at times very acute.
For several years, I consulted with numerous doctors all over the country who tried to determine the cause, even after MRI and other radiology. I underwent three unsuccessful exploratory surgeries by different surgeons. Finally one surgeon obtained the model prototype implants and discovered a defective design. He surgically removed the implant and validated that it was the cause of my problems as its defective design acted like a floating knife blade and could not help but acutely impinge sensitive tissue, dislocating the hyoid bone and all attaching muscle structures for which the hyoid bone acts like a harness.
I acted diligently trying to find the cause for years.
Question: Does the 3 year medical product (an implant) liability toll from that actual discovery-of-cause date in May 2013 or not? Attorney friends who do not work in this area reviewed but are not fully certain of the implications of NY 214.
To complicate matters further, although I live in NY, the 2006 damaging surgery was performed in Maryland, although this pharmaceutical company is nationwide with offices in NY.
Submitted: 1 year ago.
Category: Legal
Expert:  LawTalk replied 1 year ago.

Good afternoon,

I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today. I handled defective product litigation for many years of my 30+ years as a trial attorney.

Because the device was sold to you in MD and the procedure to place it was done in MD, it is MD law which will determine the statute of limitations.

Under MD law, the statute of limitations for product liability is 3 years. But that 3 year period begins to run only when you or your physician discover, or through reasonable diligence and intelligence should have discovered, the facts that form the basis of your lawsuit for defective product.

Based on your facts it is literally impossible for me to determine the date on which you discovered the causal connection between your ongoing pain/injury and the defective device. However, I might suggest that the date could be reasonably be determined to be the time that your surgeon obtained the model prototype implants and discovered a defective design. The surgery to remove the artificial bone would have been the time that the actual defect was discovered----however, I believe that the defense will be able to successfully argue that the date your physician came to the conclusion that it was this known defective product which was causing the ongoing injury---and he passed this information on to you---is the date that the 3 year statute would have begun to run.

You will want to immediately contact a product liability attorney in the county in MD where you had the original procedure done as that is likely where the lawsuit will have to be filed. It is possible that you can file suit in NY if your attorney can show that the defendant company has sufficient presence in the state to justify personal jurisdiction, but I am sure that the laws of the state of MD will be used in the case as regards ***** ***** of limitations issue, as that was the state where the harm occurred.

You may reply back to me using the Reply link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.

Please remember to rate my service to you so that I can be compensated for helping you. Thank you in advance.

I wish you and yours the best in 2015,

Doug

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