Rhode Island law applies in Davol/Bard mesh suit.


Byline: Barry Bridges

With the state "bear[ing] the most significant relationship to the event and the parties" in a hernia mesh product liability suit, Rhode Island law controls the action, a Superior Court judge has decided.

Faced with a choice-of-law question, Presiding Judge Alice B. Gibney, who in 2017 assumed responsibility for multi-case litigation involving personal injuries allegedly resulting from the use of hernia mesh products manufactured by defendants C.R. Bard and Davol, determined that policy considerations favored the application of Rhode Island law in the instant case.

The suit was brought in Rhode Island by a plaintiff who allegedly suffered injuries in Ohio from the surgical implant and explant of one of the mesh devices.

Davol and Bard moved to dismiss, maintaining that Ohio law applied and that the suit was therefore barred under that state's statute of repose for product liability actions.

But analyzing the issue through Rhode Island's "interest-weighing approach," Gibney declined to toss the suit.

"Having examined all relevant policy considerations and points of contact, the court finds that while both Ohio and Rhode Island have an interest in this case, the more significant interest lies with Rhode Island," she concluded.

Thus, Rhode Island law governs the actions and the plaintiffs' claims are not subject to Ohio's 10-year statute of repose.

The 11-page decision is Nourse, et al. v. Davol Inc., et al., Lawyers Weekly No. 61-001-19. The full text of the ruling can be found here.

Jonathan D. Orent of Motley Rice represents the plaintiffs. Mark T. Nugent and Thomas M. Robinson, of Morrison Mahoney, are counsel for the defendants. The Providence lawyers did not respond to requests for comments prior to press time.

Hernia mesh injury

In 2017, Michael and Clara Nourse, residents of Ohio, filed a complaint in Rhode Island alleging that Michael was injured by a 3DMax Mesh, a medical device designed, manufactured and distributed by the defendants. One defendant, Davol, is incorporated in Rhode Island.

Michael was surgically implanted with the 3DMax in 2005 to repair a bilateral inguinal hernia, but it was explanted in 2016. Because Michael's surgeries took place in Ohio, the defendants maintained that Ohio law governed the dispute under Rhode Island's choice-of-law principles. Accordingly, they moved to dismiss, asserting that the claims were barred by Ohio's statute of repose, which prohibits product liability claims...

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