Published On: Wed, Mar 1st, 2017

Smith & Nephew Product Liability Suit Revived in New Jersey

A state appeals court in New Jersey has revived a product liability lawsuit against Smith & Nephew over claims of defective medical wipes.

A three-judge appellate partially reversed a trial court ruling in 2015 that reinstated the complaint from Kenneth and Diane Nicolosi. The complaint may only permit claims resulting from wipes used before the August 2011 recall notice.

“We conclude only the complaint alleges claims arising within two years of the filing date of the complaint,” the panel said.

The panel also noted that it would not evaluate whether the plaintiff can “prove medical causation” at this stage.

Kenneth Nicolosi used Smith & Nephew’s REMOVE Universal Adhesive Remover Wipes and SKIN-PREP Protective Wipes between 2007 and 2011 as a sterile skin preparation.

Photo/Nodar Kherkheulidze via wikimedia commons

In May 2011, Smith & Nephew recalled certain lots of its medical wipes because they were not properly sterilized. A recall notice was issued in August 2011 that identified additional lot numbers that were improperly sterilized. Both recall notices warned consumers to discontinue using affected lots and destroy them.

The couple’s complaint alleges that Nicolosi used the defective wipes prior to the May 2011 recall notice and suffered infections that required hospitalizations and treatment.

When a settlement could not be reached in the initial complaint, the couple moved to reinstate the complaint in July 2015. Smith & Nephew objected to the complaint and argued that the action was filed after the statute of limitations, according to product liability law.

Nicolosi argued that he used products listed in the August 2011 recall notice that also injured him, which extended the limitations period and permits him to pursue all claims.

The trial court disagreed with Nicolosi and declined to reinstate the complaint.

The couple argued in their appeal that the complaint asserts claims for injuries from wipes listed in the recall notice from August 2011. Smith & Nephew argued that Nicolosi was alerted to the problem in the May 2011 recall notice.

“We reject defendant’s contention the May 3, 2011 recall put plaintiff on notice all of defendant’s products were possibly defective; rather, the notice limited the defective products to the identified batches,” the panel said. The panel said it agreed that the August 2011 notice “may support a separate cause of action.”

The couple’s complaint does not list a cause of action linked to the recalled products, but does assert that Nicolosi used the company’s products prior to May 2011.

Author: Jacob Maslow

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