Illinois Hip Replacement Product Defect Suit Survives After Statute of Limitations Runs: Re-Evaluation of When Discovered Injury

Chicago’s 7th U.S. Court of Appeals reversed a federal district judge’s ruling that barred the Illinois product liability claim of Lenore Aebischer. In 1997 at age 44, Lenore underwent a hip replacement. But the prosthetic hip manufactured by defendant Stryker Corp. allegedly failed due to structural defects, and Lenore required a second replacement surgery as a result of the Illinois medical device liability.

Stryker Corp. moved to dismiss the complaint filed by Lenore because the 2-year statute of limitations had run when the case was filed in Chicago in 2005. In Illinois, typically the statute of limitations begins running from the date that the claimant should have known that there was a problem with the defective medical device. The Chicago district court found that in 2002 Lenore was aware that her hip problems were caused by a manufacturer’s defect.

In 2001, Lenore saw her orthopedic surgeon for left hip pain and was told that her hip replacement might last 15-20 years. In 2002, the same doctor determined that her pain was caused by osteolysis and from particles of plastic that had broken loose from the prosthetic hip. In 2003, the surgeon performed a second hip replacement surgery to replace the failed original prosthesis. After the surgery, the surgeon told Lenore that the osteolysis was worse than he had originally thought and that the original hip device had “advanced or catastrophic failure”.

Because of her surgeon’s discoveries during her procedure in January, 2002, the Illinois federal district court said that the plaintiff was on “inquiry notice” that her injury might have been wrongfully caused based on the surgeon’s explanation of the osteolysis and that particles of plastic from the prosthesis had gotten between that device and her hip bone.

The appellate court reversed the district court judge’s ruling and determined that Lenore could in fact file her claim- that the statute of limitations was not up. The appellate court relied on an Illinois law for personal injury cases which states that a suit must be filed within two years of the injury unless the injuries were not readily discoverable. The law sets out two exceptions to this two year rule.

The two year clock would start running when the patient/plaintiff:

1) discovers her injury and knows that it was wrongfully caused , or
2) has “sufficient information concerning the injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved.”

Using this criteria, the 7th Circuit Court of Appeals found that Lenore was told by her surgeon before her surgery that she might develop problems with the hip because she had an exceptionally small socket, she was active and relatively young. “Given these warnings, a jury might conclude that Aebischer reasonably attributed her hip problems to her small socket and high activity level and that she initially had no reason to suspect they were wrongfully caused.”

The 7th Circuit stated that in view of these facts, a jury could reasonably conclude that the plaintiff (Lenore) was not on”inquiry notice” until June 2003, in which case she filed suit within the two-year statute limitations period. The Illinois 7th Circuit appellate court ruled that the district court had erred in granting summary judgment for defendant Stryker and returned the case back to the district court for further proceedings. Lenore Aebischer v. Stryker Corp, et al. No. 07-1954.

Kreisman Law Offices handles product liability cases in Cook County and its surrounding areas, including Barrington, Forest Park, Northlake, and Southmoor.

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