Tenth Circuit Finds Discovery Rule Applies To New Mexico's Statute Of Limitations For Products Liability

• Published date: 12 November 2021
• Subject Matter: Consumer Protection, Litigation, Mediation & Arbitration, Product Liability & Safety, Trials & Appeals & Compensation, Personal Injury
• Law Firm: Winston & Strawn LLP
• Author: John W.H. Harding and Matthew Saxon

In Nowell v. Medtronic, Inc., et al., the Tenth Circuit recently held that the discovery rule extended to New Mexico's statute of limitations for personal injury cases involving products liability. This means that a cause of action for products liability "'accrues when the plaintiff knows or with reasonable diligence should have known of the injury and its cause.'" 2021 WL 4979300, at *2 (10th Cir. Oct. 27, 2021) (quoting Maestas v. Zager, 152 P.3d 141, 147 (N.M. 2007)).

In Nowell, the plaintiff had a hernia repaired in 2010 using a polyester Parietex mesh manufactured by Medtronic. Id. at *1. Six months later, the plaintiff needed a second operation to reinforce the mesh, and subsequently the plaintiff experienced pain in the area of the mesh for the next three years. Id.

In March 2014, the plaintiff underwent a CT scan, which revealed two cysts in the area around the mesh. Id. However, at that time, the physicians who performed the scan did not conclude that the mesh caused the issues although the plaintiff was "skeptical about the safety of the mesh." Id. The plaintiff underwent a second CT scan on October 8, 2014, and that scan "revealed a large fluid collection associated with the mesh." Id. A physician recommended removal of the mesh two days after the second scan, and surgery occurred later that month. Id.

The plaintiff filed suit against Medtronic on October 6, 2017. Id. Medtronic moved to dismiss, based in part on New Mexico's three-year statute of limitations for personal injury, and the district court dismissed the plaintiff's claims. Id. at *2. The plaintiff appealed. Id.

Because the New Mexico Supreme Court had not yet addressed whether the statute of limitations for personal injury caused by products liability accrued at the time of occurrence, and the time of injury, or at the time of discovery, the Tenth Circuit endeavored to predict what rule the New Mexico Supreme Court would apply. Id. The court ultimately concluded that the New Mexico Supreme Court would apply the rule of discovery (i.e., the claim accrues when the plaintiff knows or with reasonable diligence should have known of the injury and its cause) because (i) this interpretation was supported by New Mexico's intermediate courts; (ii) the New Mexico Supreme Court...