DCPP VS. J.R.B. IN THE MATTER OF J.R.B., JR. AND M.B. (FN-09-0351-13, HUDSON COUNTY AND STATEWIDE)(RECORD IMPOUNDED)
A-1018-15T2
| N.J. Super. Ct. App. Div. | Jun 30, 2017Background
- Kenneth Nicolosi sued Smith & Nephew alleging infections from SKIN‑PREP and REMOVE wipes he used between 2007 and 2011; complaint filed May 14, 2013.
- Smith & Nephew issued a recall on May 3, 2011 for certain lot numbers and a second recall on August 1, 2011 for different lot numbers (the second added later batches manufactured after March 2010).
- Nicolosi completed a May 9, 2011 Recall Response Form (stating he destroyed recalled products) but did not return the August recall form.
- The action was voluntarily dismissed under a tolling agreement in July 2013 and administratively dismissed for lack of prosecution in November 2013.
- Plaintiff later obtained medical records and an expert report and moved in July 2015 to reinstate the complaint; the trial court found exceptional circumstances justified reinstatement but ruled the claims were time‑barred and denied full reinstatement.
- The Appellate Division affirmed in part and reversed in part, allowing only claims tied to products listed in the August 1, 2011 recall to proceed and remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether claims tied to August 1, 2011 recall are time‑barred | Nicolosi contends he used wipes from the August recall and did not have notice until Aug. 1, 2011, so those claims are timely | May 2011 recall put plaintiff on notice of defect generally, so limitations began May 9, 2011 | August 1, 2011 recall identified different batches; claims tied to that recall are not time‑barred and may proceed |
| Whether claims tied to May 3, 2011 recall are timely | (Implicit) some injuries may have continued after May 2011 | Limitations began May 9, 2011 and expired before filing | Injuries from wipes listed in the May 3, 2011 recall are barred by the two‑year statute |
| Applicability of continuing tort doctrine to product‑liability/personal injury claims | Plaintiff suggested the tort continued while he unknowingly used tainted products through Aug. 2011 | Defendant argued discovery rule and discrete‑act analysis control | Court rejected extending the continuing tort doctrine to medical/personal‑injury claims; discovery rule governs and was triggered by each recall notice |
| Whether equity/prejudice should save time‑barred claims after reinstatement | Plaintiff argued defendant suffered no prejudice and equity should allow claims | Defendant relied on statute of limitations and timeliness | Court found no equitable basis to revive claims tied to May recall; reinstatement allowed only for August‑recall claims |
Key Cases Cited
- Weber v. Mayan Palace Hotel & Resorts, 397 N.J. Super. 257 (App. Div. 2007) (reinstatement motion reviewed for abuse of discretion)
- Cornett v. Johnson & Johnson, 211 N.J. 362 (2012) (defines product‑liability action and discovery‑rule principles in personal injury/product cases)
- Town of Kearny v. Brandt, 214 N.J. 76 (2013) (legal questions, including statute‑of‑limitations issues, reviewed de novo)
- Wilson v. Wal‑Mart Stores, 158 N.J. 263 (1999) (discusses continuing tort language cited by parties)
- Green v. Jersey City Bd. of Educ., 177 N.J. 434 (2003) (explains continuing‑violation context in discrimination/hostile‑environment claims)
- Printing Mart‑Morristown v. Sharp Elecs. Corp., 116 N.J. 739 (1989) (courts must read complaints indulgently on initial pleadings)