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Cobalt Chromium Toxicity

Zofran: Statute of Limitation

The “statute of limitations” is the time period in which you have to file a lawsuit after being injured.  In any given case, determining the appropriate statute of limitations can be complicated and requires a fairly detailed analysis of the law in the state where you live.  The real issue in most Zofran cases is when the statute of limitations starts to run.

In most states, the statute of limitations ranges from 1-3 years and starts to run from the date you reasonably suspect you have a claim.  However, there are many exceptions to this general rule; particularly in cases involving birth defects.

First, most states have what is called the “discovery rule.”  This means that the statute of limitations does not start to run until you discover or reasonably should have discovered your injury and its cause.  Most parents of children impacted by Zofran had no idea there was a link between Zofran and birth defects.  Additionally, much of the science linking Zofran to birth defects has just recently been made public.  Therefore, in most states the discovery rule can be applied to extend the statute of limitations.

Second, many states have laws providing that the statute of limitations for children does not start to run until the child reaches the age of majority (usually 18).  This means that in most state a child impacted by Zofran would have a certain period of time (usually 1-3 years) after turning 18 to bring a lawsuit.  However, there are some states that limit this rule in cases alleging birth defects.  In those states, the statute of limitations period may be longer (i.e. 6 years) but starts to run on the date the child is born.  This is an important exception.

Third, some states have a fraud exception to the statute of limitations.  In these states, the statute does not run on a claim if the plaintiff can show that the defendant engaged in fraudulent conduct designed to prevent the plaintiff from discovering his/her injury.  In Zofran cases, there may be an argument that the manufacturer of this drug fraudulently hid its dangers from the public.  If this can be proven, this may prevent the statute of limitations from being asserted.

As shown above, the appropriate statute of limitations in any given case can be tricky to determine.  It often depends on the facts of each case and a detailed analysis of the law in the state where the plaintiff resides.  We advise anyone who is concerned about the statute or believes they may have a claim to immediately contact an attorney to see what statute applies to their case.

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