Sutherland v. DCC Litig. Facility, Inc. – NC Breast Implant Injury Case Remanded

A woman who underwent breast implant surgery in North Carolina more than a quarter century ago and allegedly suffered serious injury as a result will finally have the opportunity to take her case to trial. womanwalking.jpg

While it’s true that litigation can seemingly drag on in some cases, this one is exceptional in the amount of time it’s been pending, and there are a lot of reasons for that.

At its core, Sutherland v. DCC Litig. Facility, Inc. is a product liability case wherein plaintiff alleges the silicone implants she received were defective and inherently dangerous and the maker of those devices failed to warn her of that danger. She reportedly suffered problems that included vomiting, balance problems, swelling of the gallbladder and uterus, edema, skin rashes, painful knots in the body and chronic pain.

However, she received a number of different diagnoses over the course of the next five years, between when she had the surgery in 1988 and when she filed her personal injury lawsuit against the maker of the product.

Normally in North Carolina, plaintiffs typically have only three years from the time of an injury in which to file a case. Beyond that point, it’s barred forever by the statute of limitations.

However, unlike some other states, North Carolina recognizes a “disease exception” that tolls the statute of limitations, per the 1985 North Carolina Supreme Court ruling in Wilder v. Amatex. This exception allows cases to be brought beyond that three-year mark in time-delayed product injuries, where the cause of the injury isn’t apparent until more than three years later.

Normally, in a case where an injury occurs in North Carolina, North Carolina law would be applied and that’s the end of it. However, this case became complicated for a number of reasons. First, defendant faced a host of product liability claims relating to this exact problem. Because there were tens of thousands of cases pending, all of those were lumped into a multi-district litigation action, which was transferred to the Northern District of Alabama. In 1994, a class action settlement was reached, but plaintiff opted out of that settlement.

The following year, defendant manufacturer filed for bankruptcy in the Eastern District of Michigan, where it was headquartered. As a result, all pending claims against the company were transferred to the Michigan court.

After a number of appeals, the bankruptcy court asserted jurisdiction over the remaining tort cases and established a “litigation facility” to handle opt-out claims. This was one of those.

Settlement negotiations faltered and the case was certified for trial. Defendant then moved for summary judgment, arguing case was time barred per Michigan statutes. The district court granted summary judgment on this issue.

However, the Sixth Circuit Court of Appeals reversed because it found North Carolina law – which has that disease exception – should apply. There remains a genuine issue of material fact as to when plaintiff was aware of the cause of her ailments, and that fact will likely be re-argued before the case goes to trial. However, now we know the applicable state standards, and there is a better chance this plaintiff will finally have her day in court.

Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.

Additional Resources:
Sutherland v. DCC Litig. Facility, Inc., Feb. 20, 2015, U.S. Court of Appeals for the Sixth Circuit

More Blog Entries:
Ratledge v. Purdue – Medical Malpractice Claims Require Expert Witness, March 2, 2015, Charlotte Medical Malpractice Lawyer Blog

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