Your Product Liability Case and the (Dreaded) Statute of Limitations

Statutes of Limitations in Product Liability Cases

The statute of limitations can be the strongest defense a product manufacturer will bring to defend itself and avoid paying money in a product liability lawsuit. It can be deadly to your medical device or drug case. The problem is, determining the proper deadline to bring your lawsuit is rarely simple. It is critical that you find someone who can figure out when the clock started ticking on your product liability case.


Let’s start with a simple definition: a statute of limitations is a state law which limits the time period when you may bring a lawsuit for money damages for a personal injury. In each state you have a certain number of years from the injury, or the date of discovery of the injury, to file a lawsuit and recover money for your injuries.

If you miss this deadline, you lose your right to bring the lawsuit, forever. These statutes must be taken very seriously.


The rationale makes sense: citizens and companies do not need to be vulnerable to being sued indefinitely for an act of negligence. If you were in my grocery store twelve years ago, slipped on a banana peel, broke your arm, got medical treatment, recovered, then waited over a decade and finally sued me and my grocery store for negligence, it could be a serious hardship on me and deeply unfair. I need reasonable assurance that I won’t be exposed to lawsuits forever. So states across the country have written statutes that limit the amount of time an injured person can bring a lawsuit. Essentially, state legislatures are telling injured persons: we respect your right to sue for money damages when you are the victim of some kind of negligence, but don’t sleep on your rights. If you are hurt because of someone else, get on with it and file a lawsuit. And if you wait too long, you lose your right to recover damages.

(I don’t really own a grocery store.)

Determining When Your “Lawsuit Clock” Starts Ticking

In some cases determining the start of the running of the statute of limitations is quite easy. For example, in a car crash case where injuries are obvious (like a broken arm), the clock starts at the time of the crash. In North Carolina, the statute of limitations in negligence actions is three years from the date of injury. If your car crash occurred on April 27, 2016, you must file a lawsuit within three years, no later than April 26, 2019. That one is easy. But as you will see below, often the determination of the “relevant period” for the statute of limitations can be difficult to sort out. And this much is clear: if there is any chance the statute of limitations has run or has passed, the defense lawyers will argue loudly that the case is void and should be dismissed.

The Discovery Rule

Your Case Hangs in the Balance

Many states, including North Carolina, use the Discovery Rule to start the clock running on the statute of limitations. In many injury cases, the injured person does not know she is injured. For example, a young woman may not realize for months or years that a physician negligently left a surgical needle inside her body during a surgical procedure. It may take some time for symptoms and pain to develop. The discovery rule states that the clock does not begin to run on your injury until the person’s injury becomes “apparent or ought reasonably to have become apparent” to the injured person.

The Discovery Rule is helpful to injured persons but can be difficult to sort out. As you can imagine, the date the clock starts ticking (or should have started) can be a hotly debated issue, particularly if the defense wins the debate and thus avoids liability altogether. Example: Suppose a man undergoes total hip replacement, has pain for months afterward, but the surgeon keeps telling him, “the pain is normal; it is part of the recovery process.” Then the artificial hip manufacturer sends a letter to the man informing him that his artificial hip components have been recalled. Still, his doctor keeps telling him the artificial hip is fine and that he should not consider revision surgery. When does the man’s statute of limitations begin to run? The date of the hip recall letter? Or later, when the artificial hip moves out of place and causes him to have to undergo emergency revision surgery?

The answer is unsatisfying: it is what the judge presiding over your case says it is.

The Statute of Limitations in Each State

Figuring out the proper statute of limitations period for any particular case can be complicated. What follows is a basic guideline for bringing claims for product liability causing physical injury. Still, you always need a good lawyer to review your case history then double and triple check the timelines and the statutes in your state.

In North Carolina, a medical device or drug failure is essentially a personal injury/negligence action, and the statute of limitations in those cases is three years.  N.C. Gen. Stat. § 1-52.

Warning! If you are searching the Internet for the statute of limitations in product liability cases, make sure you distinguish between product liability cases causing physical injury (which in North Carolina is three years), and general product liability cases (such as when a washing machine malfunctions), which is six years.

In South Carolina, a product liability/personal injury claim must be brought within three years of the injury. South Carolina uses the discovery rule, so the injured person has three years from the date when he or she knew or should have known that injury had occurred.

In Virginia, a product liability/personal injury claim must be brought within two years of the injury or the reasonable discovery of the injury.

In Georgia, a product liability/personal injury claim must be brought within two years of the injury or the reasonable discovery of the injury.

If you have a question about the statute of limitations in your state, please give me a call and we can figure it out together: 919.546.8788.

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Clay, thank you sir for making a disheartening experience at least palatable, you and your staff were honest, caring and understanding through the entire process of my wife’s hip replacements, while monetary settlements never make the pain and suffering end, it sometimes is the only way people can fight back to right a wrong. J. V.
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