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Q: I suffered a series of strokes, probably caused by a stimulant contained in a dietary supplement that I had been using.  This stimulant can cause a short-term elevation in blood pressure, heart rate or both, and a temporary constriction of the blood vessels, increasing the risk of stroke.  Neither I nor the doctors who treated me for my strokes knew at the time that the stimulant was to blame.

I became aware of a possible link when news reports suggested that the sudden death of a major league baseball player might have been caused by this stimulant.  Then we sued the distributor and the manufacturer.  This was four years and four months after my strokes.  They are moving to dismiss the case as barred by the statute of limitations.

A: Your attorney will argue that the lawsuit is to recover damages for personal injury caused by the ‘latent’ effects of exposure to a substance within the body.  In general, such a lawsuit must be commenced within three years of the date when you should have been discovered the injury.  However, sometimes, the suit may also be commenced within one year of your discovery of the cause.

In order to take advantage of the one-year exception, you will have to prove that technical, scientific or medical knowledge and information sufficient to ascertain the cause of your injury had not been discovered, identified or determined prior to the expiration of the original three-year period.

Were the effects ‘latent’?  ‘Latent’ refers to something that is not now visible, obvious, active or symptomatic.  It is entirely plausible that several hours’ delay in the manifestation of symptoms can lead to a delay of years in detecting an injury’s cause.  No wonder that the Legislature considered even a few hours of latency sufficient to justify an extension of the statute of limitations.

As for proving that knowledge and information had not been discovered, this refers to information sufficient for the medical or community to ascertain the cause.  The test is one of general acceptance of that relationship in the relevant technical, scientific or medical community.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

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