Talcum Powder Lawsuit Statute of Limitations

By - July 10, 2019
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If you have ovarian cancer and believe that it was caused by long term exposure to talcum powder from Johnson & Johnson, you may want to file a personal injury lawsuit. But one big aspect to consider is the time limit on filing suit. You do not have unlimited time to take legal action. This is known as the statute of limitations.

You need to pay close attention to the statute of limitations for filing a personal injury or wrongful death lawsuit in the state you are considering legal action. All states have deadlines for filing all kinds of lawsuits. Remember: The statute of limitations in a state is a strict deadline. If you do not file your talcum powder lawsuit before the statute of limitations expires, your lawsuit will almost always be dismissed. There are a few ways the statute of limitations can be extended, but they are limited in scope, and it is unwise to count on them for your case.

In most personal injury cases, the statute of limitations begins to run on the day you suffered an injury.

Standard Statute of Limitations in a Personal Injury Lawsuit

The typical statute of limitations in most personal injury lawsuits ranges from one to six years, depending on the state. If you file a talcum powder lawsuit, you may choose to file in your state of residence, the state where it occurred, or even a state that offers the best possibility for a successful outcome of the case. Your personal injury attorney will decide which is the best state for you to file suit, and the statute of limitations will be a factor in that decision.

With the standard statute of limitations of two years, for example, you would have two years from the date of your injury to file a lawsuit against the person or entity that caused you the injury.

The Discovery Rule Exception to Statute of Limitations

The problem with the standard statute of limitations is that sometimes the plaintiff was unaware of an injury that occurred many years ago. For example, in 2017, a woman in California was awarded $70 million in a talcum powder cancer lawsuit against Johnson & Johnson. (USAToday.com). She told the court that she had used talcum powder for her feminine hygiene for decades, and she believed she got ovarian cancer from the use of J&J’s product. The actual injury occurred many years ago, so the standard statute of limitations of two years in California would preclude her from filing suit.

That is why nearly all states have formed a ‘discovery rule’ exception for the statute of limitations in a personal injury or product liability lawsuit. Generally, the discovery rule pushes out the filing deadline in a case where the injured party did not know about the injury or the fact that the defendant’s actions could have caused the injury until the original statute of limitations had lapsed. This situation is quite common, especially in talcum powder lawsuits where the use of the product was decades in the past and the injury occurred at that time.

Example of the Discovery Rule

Say that your state has a statute of limitations of two years for personal injury lawsuits. But that state also has a discovery rule that states the statute of limitations ‘clock’ does not start until the date that you knew or had enough notice that you were injured, or knew or had sufficient notice of the cause of harm. In many talcum powder cancer cases, the plaintiff is unaware of their injury until the date the doctor diagnoses them with cancer.

Let us assume you were exposed to asbestos in Johnson & Johnson Baby Powder for 10 years in your feminine hygiene daily routine that occurred in the 1980s. But it was not until 30 years later that you developed ovarian cancer from using the baby powder. It has been shown in several lawsuits that Johnson & Johnson was aware that some lots of its raw talc contained traces of asbestos from the 1970s until the early 2000s. (Reuters.com)

Clearly, in this situation, the standard statute of limitations expired decades ago. The only way to file a personal injury lawsuit against Johnson & Johnson is by relying on the discovery rule. As is so common in these talcum powder cancer cases, the plaintiff only discovers their injury when their doctor diagnoses their cancer. So, the statute of limitations would start on the day your physician tells you that you have ovarian cancer and it could be due to asbestos exposure. Now you know that you have an injury and have an idea what the cause of the harm is.

Other Ways the Statute of Limitations Can Be Extended

In most states, there are other ways the statute of limitations may be extended. One way is if the defendant left the state after the injury occurred. In most states, the statute of limitations clock stops running when the defendant is not in the state. So, if your state’s statute of limitations is three years and the defendant did not reside in the state for two years after the injury, the statute of limitations would be extended by two years.

Of course, this can be hard to prove, and it should not be counted on to extend the statute of limitations in this way. It is important to talk to a licensed attorney in your state about this matter generally to determine if it is possible the statute of limitations could be extended in your case.

Another way to extend the statute of limitations is if the injured party is a minor, disabled or mentally ill. Most states will allow an extension of the statute of limitations in these cases.

Remember, if you were a regular user of Johnson & Johnson Baby Powder and have been diagnosed with ovarian cancer, you need to talk to a personal injury attorney soon. The statute of limitations clock began to run on the date of your diagnosis, so time is of the essence. If you have questions, please contact the law office of Melinda J. Helbock A.P.C.

References

J&J Talcum Powder Baby Powder Cancer Trial. (2017). Retrieved from https://www.usatoday.com/story/money/business/2016/10/28/johnson-jnj-talcum-baby-powder-ovarian-cancer/92878176/

US Senator Asks J&J for Documents on Talc Baby Powder Safety. (2018). Retrieved from https://www.reuters.com/article/us-johnson-johnson-talc/u-s-senator-asks-jj-for-documents-on-talc-baby-powder-safety-idUSKCN1PN2F6

 

Melinda J.
Melinda J.

Editor-in-Chief of TalcumPowderSafety. Since 1999, she's worked across a multitude of areas of consumer protection including defective products, environmental issues, identity theft, predatory lending and more.

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