The 5th Circuit breathed new life into a defective prosthetic knee case finding that the discovery rule tolled the statute of limitations and Plaintiff could rely on a Texas discovery rule to delay the accrual of her claim.
A Scorpio TS prosthesis was implanted in Plaintiff’s right knee on October 2, 2007. Plaintiff filed suit a little more than 3 years later. The Defendant argued that her SOL passed when she began feeling pain in the site. Plaintiff’s argument: she did not receive an X-ray and diagnosis from her doctor until later.
Construing facts most favorably to the Plaintiff, the court found that the critical date was when Plaintiff “acquired the knowledge she needed to discover she had a cause of action.”
Paradoxically in some ways given Texas’ generally anti-plaintiff animus, Texas has a very liberal discovery rule.
You can read the full opinion in Brandau v. Howmedica Osteonics Corp here.
- More on the Texas Discovery Rule