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Blessing v. Johnson & Johnson

March 5, 2010

MISTI J. BLESSING, AN INDIVIDUAL, AND DAVID R. BLESSING, AN INDIVIDUAL, PLAINTIFFS-APPELLANTS,
v.
JOHNSON & JOHNSON, A CORPORATION, JOHNSON & JOHNSON HEALTH CARE SYSTEMS, INC., A CORPORATION, ETHICON, INC., A CORPORATION, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4891-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 19, 2010

Before Judges Reisner and Chambers.

The trial court granted defendants' motion for summary judgment and dismissed this products liability action on the basis that it was filed after the statute of limitations had run. Plaintiffs appeal from that dismissal, contending that the trial court failed to apply the discovery rule, improperly rejected principles of equitable tolling, erred by not conducting a Lopez hearing,*fn1 and mistakenly failed to hold the motion in abeyance until a federal court made a determination on a motion to certify a class action for similar litigation pending in federal court. We affirm.

I.

We review the pertinent facts. On August 10, 2001, Misti J. Blessing (plaintiff) had a cesarean section in which Panacryl sutures were used. This was her third cesarean section. Six months later, on February 10, 2002, plaintiff noticed some blood coming from the incision and found that the incision had opened; she saw her doctor that day. Plaintiff testified at her deposition that her doctor "told me that the sutures caused an infection, and that the infection worked from the inside out and it bubbled out and it opened up my incision." She further testified that "[h]e told me that the sutures, that they're internal sutures and they were supposed to dissolve," although she did not recall that he told her the time frame in which they should have dissolved. The doctor told her that she would need surgery to remove the sutures. She also saw another doctor in the office who told her what would have to be done "about fixing" the incision.

On March 15, 2002, plaintiff underwent scar revision surgery and the Panacryl sutures were removed. After the surgery, according to plaintiff, the doctor "told me the sutures [were] why I had the infection, because they were still in my body." The doctor told her that "because the sutures [were] still in there . . . I needed to have the sutures removed."

Thus, at the time of the operation, in 2002, plaintiff was aware that the sutures had caused her infection and that they had caused her incision to open; she knew that the need for surgery was caused by the sutures. She also knew that the sutures were supposed to dissolve. The doctor's operative report sets forth as his post-operative diagnosis "[i]ncision separation secondary to probable chronic inflammatory reaction to Panacryl suture" and indicates that "intact Panacryl suture with intact knots" was found on the right side but not on the left and excised during the surgery.

Plaintiff did not file her complaint until May 31, 2007. In the complaint, she sued defendants Johnson & Johnson, Johnson & Johnson Health Care Systems, Inc., and Ethicon, Inc. (defendants) as the manufacturers and distributors of Panacryl sutures, which she maintained were defective. Her complaint sought compensatory and punitive damages for her personal injuries due to her problem with the sutures under various legal theories, including products liability claims. Her husband, David R. Blessing, asserted a per quod claim. In addition, the complaint sought class certification pursuant to Rule 4:32-1.

When asked what precipitated the filing of the lawsuit, plaintiff explained:

I had heard something on TV about someone else having a problem and I cannot specifically know which - when. It was sometime in 2006, because I remember getting on the internet and looking around and I remember putting my name on a website if anybody wanted to contact me. I was contacted by Mr. Toma.

She further indicated that the matter she saw on television involved someone who "had a problem with their c-section reopening from sutures, and I related to it and ...


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