NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1108-15T2
KENNETH NICOLOSI and
DIANE NICOLOSI, his wife,
Plaintiffs-Appellants,
v.
SMITH AND NEPHEW, INC.,
Defendant-Respondent,
and
THE TRIAD GROUP,
Defendant.
_______________________________
Argued December 15, 2016 - Decided February 16, 2017
Before Judges Lihotz, Hoffman and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Burlington County, Docket No.
L-1256-13.
Gary D. Ginsberg argued the cause for
appellants (Ginsberg & O'Connor, P.C.,
attorneys; Adam M. Raditz, on the brief).
Carla Rose Karp (Goodwin Procter, LLP) argued
the cause for respondent (Glenn S. Kerner and
Ms. Karp, on the brief).
PER CURIAM
Plaintiff Kenneth Nicolosi appeals from an October 2, 2015
order denying his motion to reinstate a complaint against defendant
Smith & Nephew, Inc.1 Plaintiff filed this product liability
complaint on May 14, 2013, alleging he suffered infections after
using medical wipes manufactured by defendant. The parties agreed
to a temporary dismissal of the action pending negotiations. When
a settlement could not be reached, plaintiff moved to reinstate
the matter. Defendant objected, asserting the action was filed
beyond the applicable two-year statute of limitations. The trial
court agreed, and denied plaintiff's request to restore the action
to the trial calendar.
On appeal, plaintiff argues the judge abused his discretion
and misapplied the law. Following our review, we affirm in part
and reverse and remand in part.
The facts are not disputed. Plaintiff, who suffers from
significant medical conditions, used SKIN-PREP Protective Wipes
and REMOVE Universal Adhesive Remover Wipes, manufactured by
defendant, as a sterile skin preparation between 2007 and 2011.
On May 3, 2011, defendant recalled specific lot numbers of medical
1
The complaint includes plaintiff's wife, Diane Nicolosi, as
a named plaintiff. Because her claims are derivative, we have
chosen to refer solely to Kenneth Nicolosi as the plaintiff in our
opinion.
2 A-1108-15T2
wipes because they were improperly sterilized. Plaintiff's
medical supplier issued a recall notice. The notice instructed
customers to "immediately discontinue use and responsibly destroy
the affected products," which were manufactured dating back to
2007. The notice also requested completion of a "Recall Response
Form," which plaintiff completed on May 9, 2011. On the form,
plaintiff affirmed he identified "the recalled products in [his]
possession and . . . destroyed them."
On August 1, 2011, defendant issued a second notice,
identifying additional product lot numbers of medical wipes
recalled, also improperly sterilized.2 Plaintiff received the
recall notice from his medical supplier, which included
instructions to discontinue use and destroy the products. This
notice was also accompanied by a "Recall Response Form," which
plaintiff did not complete and return.
Plaintiff filed an eleven-count complaint on May 14, 2013,
two years and five days following his execution of the May 9, 2011
recall notice.3 In each count of the complaint, plaintiff alleged
he used defendant's products "[p]rior to May 2011," and defendant's
2
The lot numbers identified in the May 3, 2011 recall notice
are not included in the record. However, there is no dispute the
batch numbers of similar products were different.
3
The complaint also named as defendants the Triad Group and
fictitious parties as manufacturers and distributors.
3 A-1108-15T2
failure to sterilize the products made them not reasonably fit,
suitable, and safe for their intended use, and not of merchantable
quality, free of defects in design. Further, the complaint alleged
the products breached express and implied warranties, as they were
defective. As a consequence, plaintiff suffered numerous
infections requiring treatment and hospitalizations.
Service upon defendant was effectuated on June 17, 2013.
Defendant did not file responsive pleadings. Instead, the parties
entered into a four-month tolling agreement, open to extension,
which provided plaintiff would voluntarily dismiss his complaint
and release his medical records, and defendant would preserve all
defenses. A notice of dismissal of the action, without prejudice,
see R. 4:37-1, was filed on July 18, 2013. On November 28, 2013,
the court dismissed the action as to all defendants for lack of
prosecution. See R. 1:13-7.
Plaintiff gathered his medical records and retained an
expert, who issued a report. These documents along with a demand
were transmitted to defendant on April 2, 2015. Negotiations were
unsuccessful in resolving the dispute.
On July 28, 2015, plaintiff moved to reinstate his complaint.
Defendant objected. Defendant argued plaintiff's request was
filed significantly beyond the four-month tolling period, and
plaintiff did not show extraordinary circumstances caused the
4 A-1108-15T2
delay. Also, defendant asserted plaintiff's claims were time-
barred.
During argument on the motion, plaintiff explained the delay
in seeking reinstatement resulted from the non-responsiveness of
plaintiff's medical providers. Defendant acknowledged it had no
basis to challenge the claimed delay regarding securing
plaintiff's medical records. The judge agreed and found plaintiff
successfully satisfied the exceptional circumstances standard
allowing reinstatement.
Addressing defendant's argument the action could not proceed
because the two-year statute of limitations had run on May 9,
2013, plaintiff urged he also used products listed in the August
1, 2011 recall that caused harm. He stated the second recall
extends the limitations period and allowed him to present all
claims. The judge disagreed. In its October 2, 2015 order, the
court declined to reinstate the complaint, concluding the claims
were barred by the statute of limitations set forth in N.J.S.A.
2A:14-2. Plaintiff timely filed this appeal.
Our review of a trial court's decision to grant or deny a
motion to reinstate litigation required us to determine whether
the judge abused his or her discretion. Weber v. Mayan Palace
Hotel & Resorts, 397 N.J. Super. 257, 262 (App. Div. 2007). The
arguments on appeal do not implicate the judge's finding that
5 A-1108-15T2
reinstatement would be appropriate, but for the failure to timely
file the complaint. We limit review to whether the action was
time-barred, which is a legal question, subject to plenary review.
Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013).
"A product liability action is defined as 'any claim or action
brought by a claimant for harm caused by a product, irrespective
of the theory underlying the claim, except actions for harm caused
by breach of an express warranty.'" Cornett v. Johnson & Johnson,
211 N.J. 362, 386-87 (2012) (quoting N.J.S.A. 2A:58C-1(b)(3)).
Permissible theories of liability include manufacturing defect,
defective design, or failure to warn through adequate warnings or
instructions. Ibid. (citing N.J.S.A. 2A:58C-2). "The standard
for liability is that the product is 'not reasonably fit, suitable
or safe for its intended purpose . . . .'" Ibid. (quoting N.J.S.A.
2A:58C-2).
Plaintiff first argues his complaint timely asserts claims
for injuries resulting from using wipes identified in the August
1, 2011 recall notice, which are not barred. Defendant argues
plaintiff was noticed of the problem with the wipes in May;
therefore, the time to file commenced on May 9, 2011, and expired
before he filed his complaint.
The facts belie defendant's argument. The May 3, 2011 recall
notice identified distinctly different batches of defendant's
6 A-1108-15T2
product than the August 1 recall notice. The latter recall did
not merely reiterate products identified in the first recall;
instead, it added new batches of the product, manufactured after
March 2010. We reject defendant's contention the May 3, 2011
recall put plaintiff on notice all of defendant's products were
possibly defective; rather, the notice limited the defective
products to the identified batches. In this regard, we agree the
August 1, 2011 notice may support a separate cause of action.
The complaint does not state a cause of action specifically
linked to products listed in the August 1, 2011 recall. Rather,
the complaint repeatedly asserts plaintiff used defendant's
products "[p]rior to May 2011." Reviewing plaintiff's factual
allegations indulgently, as we must, Printing Mart-Morristown v.
Sharp Elecs. Corp., 116 N.J. 739, 746 (1989), we conclude such
language could encompass products listed in the August 1, 2011
recall because they were manufactured after March 2010. Plaintiff
did not receive notice of the defect in these products until August
1, 2011.
At this stage, we do not evaluate whether plaintiff can prove
medical causation sufficient to survive summary judgment. We
conclude only the complaint alleges claims arising within two
years of the filing date of the complaint.
7 A-1108-15T2
We add these additional comments on other issues raised on
appeal. Plaintiff argues "the statute of limitations does not
begin to run until the wrongful action ceases," citing Wilson v.
Wal-Mart Stores, 158 N.J. 263, 272 (1999), and suggests:
Once [plaintiff] received the May 9, 2011
letter recalling certain tainted products, the
tortious and wrongful action by [defendant]
did not cease. Plaintiff continued to
unknowingly use the tainted products
[manufactured] by [respondent] through the
August 3, 2011 recall which included tainted
products . . . . Clearly, there is a material
issue as to whether the tainted products
involved in the August 2011 recall were the
source of [plaintiff's] infections.
We reject plaintiff's attempt to extend the "continuing tort
doctrine" to these facts. The Supreme Court recognized the
continuing tort theory for discrimination and harassment claims,
which "are often based on continuing violations."
Hostile environment claims are different in
kind from discrete acts. Their very nature
involves repeated conduct. The "unlawful
employment practice" therefore cannot be said
to occur on any particular day. It occurs
over a series of days or perhaps years and,
in direct contrast to discrete acts, a single
act of harassment may not be actionable on its
own. Such claims are based on the cumulative
[e]ffect of individual acts.
[Green v. Jersey City Bd. of Educ., 177 N.J.
434, 447 (2003) (quoting Shepherd v. Hunterdon
Developmental Ctr., 174 N.J. 1, 20 (2002)).]
8 A-1108-15T2
No authority extends the doctrine to medical torts or personal
injury claims. The discovery doctrine, not the continuing tort
doctrine, triggers the statute of limitations in personal injury
actions. Cornett v. Johnson & Johnson, 414 N.J. Super. 365 (App.
Div. 2010) ("New Jersey courts apply a 'discovery rule' . . . .
The bases of a claim for personal injury are the plaintiff's
awareness that he or she sustained an injury, and the understanding
that the injury may involve another party's fault.").
As demonstrated above, plaintiff's theory of liability is
based on discrete use of specific wipes on certain days. The
discovery rule was triggered by the May 3 and August 1, 2011 recall
notices. Therefore, any injuries resulting from use of the wipes
listed in the May 3, 2011 recall are barred as untimely.
We also reject as lacking merit plaintiff's argument equity
should permit the claims to stand because defendant suffered no
prejudice. See R. 2:11-3(e)(1)(E). We reinstate the complaint
to allow only consideration of claims resulting from wipes
referenced in the August 1, 2011 recall notice. We remand the
matter for further proceedings related to these claims.
Affirmed in part and reversed and remanded in part.
9 A-1108-15T2