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We are going to assume that Texans know a few things about horses, carts, barn doors, leading to water, and whatever other horse adages we can come up with.  But when it comes to litigation, the Texas Court of Appeals took a firm line with a plaintiff who was looking to get deposition and document discovery before filing suit.  Platitudes about not wanting to bring a products liability suit without good cause were far from enough to demonstrate entitlement to invasive pre-suit discovery.  In re Acclarent, Inc., 2024 Tex. App. LEXIS 3994 (Tx. Ct. App. Jun. 7, 2024).

Texas Rule of Civil Procedure 202 authorizes pre-suit discovery to investigate potential claims.  But the Texas Supreme Court, interpreting that rule, has held that pre-suit discovery is “an intrusion into otherwise private matters” and therefore “is not to be taken lightly” and pre-suit depositions “are not now and never have been intended for routine use.”  Id. at *5-6.  Because of the clear due process concerns, courts should “strictly limit” pre-suit discovery. 

Against this backdrop, the petitioner (not a plaintiff yet) sought to conduct pre-suit discovery of the manufacturer of a medical device used in her sinus surgery.  Id. at *1-2.  Disregarding that backdrop, the trial court granted the request for both a deposition and document production.  Because there is no right of appeal from such an order, the manufacturer sought mandamus relief arguing that the trial court abused its discretion.  The appellate court agreed. 

Petitioner argued that the deposition was necessary to determine whether a products liability lawsuit should be pursued and the document discovery was needed to determine if the medical device was defective.  Petitioner claimed that she did not want to bring a products liability suit if she did not have to “because they are expensive and time consuming.”  Id. at *3.  Oh, we know.  But money and time do not eclipse burden, privacy, and due process. 

A pre-suit discovery petition has to contain “explanatory facts” demonstrating the need for the discovery and “evidence establishing” those facts.  Id. at *6-7.  Petitioner here included no factual allegations in her petition at all.  Her petition only made conclusory assertions that tracked the language of Rule 202.  Id. at *9.   Which she then tried to supplement at the hearing with “testimony” from her counsel regarding their concerns about removal, preemption, and statute of limitations.  Petitioner also offered up that she had taken discovery of her surgeon and the company responsible for neuromonitoring during the surgery which was “inconclusive” as to the cause of petitioner’s injury.  Regardless of whether counsel’s testimony was “evidence,” it still was not enough to authorize pre-suit discovery. Id. at *11-12.

Perhaps more importantly, petitioner admitted that she already had evidence of an alleged defect related to the artificial intelligence component of the system.  And the manufacturer offered to provide an affidavit identifying the AI suppler and whether the inclusion of the AI component was FDA approved—but petitioner inextricably would only accept that information from a deposition.  Id. at *13.  Given the lack of any alleged factual support combined with the information petitioner alleged to already have, she could not demonstrate that the benefit of taking a pre-suit deposition outweighed the burden to the manufacturer.  Id.  Nor was the court convinced that “burden and cost” of discovery should be discounted because modern electronic discovery is less expensive—that is not per se true.  Id.  Therefore, the appellate court concluded the trial court abused its discretion and ordered it to vacate the prior order and deny the original petition—returning the cart to its proper place behind the horse. 

Since we doubt petitioner would have considered pre-suit discovery a two-way street, this really would have been all burden to one side and all benefit to the other.  To that we say (moving away from horses), you’ve got to put some skin in the game.  Plaintiffs have to be committed enough to file a lawsuit before they get to peak behind the curtain.     

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Beyond the Supreme Court’s rolling out the red carpet to forum shopping plaintiffs, the decision in Mallory v. Norfolk Southern Railway Co., 600 U.S. 122 (2023), was further disturbing to us in that Mallory suggested that a state could deem, through a “consent statute,” grounds for “consent” to general personal jurisdiction that were much less than the “at home” standard previously required for such broad jurisdiction.  Id. at 145-46 (“attach[ing] jurisdictional consequences to what some might dismiss as mere formalities” such as completing a registration form and recognizing jurisdiction from “actions . . . that may seem like technicalities”).  Those other examples, however, all involved limited “special” jurisdiction issues, not the far broader expanse of general personal jurisdiction.

Continue Reading Post Mallory Limits to Deeming Personal Jurisdiction
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Plaintiffs’ attorneys are always looking for new ways to sue pharmaceutical companies.  Under the banner of “no good deed goes unpunished,” plaintiffs in California recently sued a prescription drug manufacturer after they took advantage of the manufacturer’s program to help pay for a medicine widely used to treat arthritis and plaque psoriasis.  There are no allegations that the drug caused any harm to these plaintiffs, nor did these plaintiffs allege that the product did not work as advertised.  It appears that these plaintiffs actually benefitted financially from enrolling in the manufacturer’s program by receiving offsets in the cost of this undisputedly helpful medication.  But they sued anyway. 

What gives?  These plaintiffs filed a class action complaint alleging that the drug manufacturer collected and disclosed their personal information in purported violation of multiple California laws.  The case is Roe v. Amgen Inc., No. 2:23-cv-07448, 2024 U.S. Dist. LEXIS 101754 (C.D. Cal. June 5, 2024), and as the district court put it, “Plaintiffs’ overarching theory of the case, which grounds all their claims, is that Defendant collected their personal information and improperly disclosed it to third parties without their consent.”  Id. at *7-*8.  According to the plaintiffs and their experts (more on the experts later), when patients enrolled in the financial assistance program through the defendant’s website, tracking pixels gathered and sent their personal information to third parties, such as Meta and Google. 

We surprisingly have not written before on pixels—a topic perhaps for deeper treatment in a future blogpost—but they are essentially tiny pieces of code that can gather information on website visitors—what they searched for, which links they clicked on, etc.  When you make travel plans online and then start receiving ads from airlines and hotels in Facebook or Instagram, that might be the work of tracking pixels.  Here, we have no idea whether the drug manufacturer’s enrollment website used tracking pixels.  But that is what the plaintiffs alleged, along with allegations that when they enrolled in the manufacturer’s financial support program, they entered information such as their names, date of birth, zip code, insurance information, medical diagnosis, and prescription information.  Id. at *3-*4. 

So did these plaintiffs state claims under California’s privacy-related laws?  In part, yes.  But not by much and not without significant limitations on their claims. 

The most interesting part of the order deals with expert opinions.  Expert opinions on the pleadings?  We did not know that was a thing, but the plaintiffs here retained two experts who examined the defendants’ website and opined that the defendant collected and shared user information with third parties.  Id. at *8-*9.  That seems like extrinsic evidence to us, and it also seems unfair for a court to consider expert opinions from one side without giving the other side an opportunity to test the opinions and respond. 

The district court, however, considered the experts’ opinions in deciding whether the plaintiffs had plausibly set forth the elements of their claims: 

Although most district courts with the circuit have concluded that it is inappropriate to consider an expert affidavit on a motion to dismiss . . . , plaintiffs may include an expert’s nonconclusory assertions within specific paragraphs in the complaint.  Experts’ nonconclusory allegations in a complaint should be taken by a court as true allegations.

Id. at *9 (internal citations and quotations omitted).  Applying this “nonconclusory assertion” rule, the district court considered the plaintiffs’ experts’ analysis in determining whether the plaintiffs stated plausible claims, and the court found that the defendants’ objections to the opinions were “better reserved for a motion for summary judgment or Daubert motion.”  Id. 

We won’t dwell on this, but it is not obvious to us how these experts’ opinions were “nonconclusory.”  The experts opined that the defendant’s website used tracking pixels to collect and retransmit private information, which is an ultimate issue in the case.  We also see a certain irony, or maybe a double standard, in the court’s position that the plaintiffs could submit expert opinions in support of their pleadings, but the defendants had to wait for a motion for summary or motions under Rule 702.  We would have expected use of evidence outside the pleadings to be deferred to later motion practice—for both sides. 

On the various causes of action, the plaintiffs won a little and lost most.  On common law invasion of privacy, the defendant argued that there was no actionable invasion of the plaintiffs’ privacy because, among other things, the plaintiffs did not allege that they hit “decline” when asked whether they would accept the defendants’ “cookie banner.”  That banner disclosed that the defendants would share personal information with third parties.  Id. at *11.  The court rejected that argument because “although a user’s consent to a website’s terms can undermine privacy claims when the user admits to accepting those terms, it is not clear from the face of the complaint, nor Plaintiffs’ opposition, whether Plaintiffs explicitly agreed to Defendant’s privacy terms.”  Id. at *11-*12 (internal citation omitted).  The complaint made no allegation either way—which was the defendant’s point—but the court ruled that the complaint’s ambiguity on consent justified allowing the claim to go forward.

The court dismissed the plaintiffs’ claims under California’s Confidentiality of Medical Information Act (“CMIA”).  This California statute requires healthcare providers and pharmaceutical company to preserve the confidentiality of medical information in their possession, not too different from the federal mandate under HIPAA.  Mere disclosure of medical information, however, does not constitute a breach of confidentiality under the CMIA.  A plaintiff must plead and prove that someone “improperly viewed or otherwise accessed” confidential medical information.  The plaintiffs’ complaint here lacked factual allegations of any unauthorized viewing.  CMIA claims dismissed. 

The court also dismissed claims under the Electronic Communications Privacy Act (“ECPA”) and the California Invasion of Privacy Act (“CIPA”).  The ECPA prohibits the unauthorized interception of electronic communications, i.e., wire tapping.  But the alleged communications were between the plaintiffs and the defendant, and the defendant could not have “intercepted” communications to which it was already a party.  The plaintiffs’ CIPA claim failed for the same reason:  The statute includes an exemption from liability for someone who was a party to the allegedly private communication.  Id. at *14-*16.  For both these claims, the plaintiffs basically alleged that the defendant was eavesdropping on itself.  That’s a nice trick, but not a cause of action. 

The plaintiffs’ anti-hacking claim likewise failed.  California’s Comprehensive Computer Data and Fraud Act is directed at actions that illegally “cause output from” a person’s computer without permission.  These plaintiffs alleged that the defendant collected and shared personal information that the plaintiffs provided, not that anyone hacked their computers.  They also did not allege any damage or loss, which the statute requires to state a claim. 

The court also dismissed claims for Larceny and violations of California’s Unfair Competition Law (“UCL”).  The plaintiffs based their larceny claim on a theory of false pretense, i.e., that the defendants made false representations to induce them to transfer their “property” to the defendant.  They did not allege, however, what representations the defendants made nor how they relied on them.  Id at *18-*20.  On the UCL claim, the court ruled that the plaintiffs failed to allege an actual loss of money or property, which doomed their claim.  The plaintiffs argued that personal information, in some instances, has monetary value.  The court, and others, disagreed:

[N]umerous courts in this circuit have held that the disclosure of a plaintiff’s personal information, absent allegations that the plaintiff intended to participate in the market to sell such information, does not constitute a monetary or property loss for purposes of UCL standing.  The Court agrees with the weight of [this] authority . . . .

Id. at *22 (internal citations omitted).  In other words, no harm, no foul. 

The plaintiffs are left with claims for common law invasion of privacy, which apparently will depend on whether they accepted or declined the defendants’ cookie banner.  The court also granted leave to amend on a few, but not all, of the other claims.  But this was already the plaintiffs’ Second Amended Complaint, so we’re not sure what else these plaintiffs can do.  In the end, this defendant was providing its medicine at a discount to patients who needed it.  The thanks they got was a lawsuit from people who suffered no harm—and in fact were better off healthwise and dollarwise for their enrollment in the defendant’s program.  Go figure. 

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This post is from the non-Reed Smith, non-Dechert, and non-Holland & Knight side of the blog. 

We have covered the ranitidine litigation before. As we explained in prior posts (including here and here), plaintiffs allege that ranitidine, the active ingredient in Zantac, breaks down into N-Nitrosodimethylamine (“NDMA”), particularly at higher temperatures.  NDMA is a known carcinogen and a ubiquitous substance present in the environment and in all manner of foods including bacon, beer, and cheese.  Readers will remember that in a sweeping, 341-page opinion, the MDL court cut the head off the federal Zantac litigation by excluding plaintiffs’ experts.  But other parts of the snake keep slithering. 

Continue Reading Delaware Zantac Court Fails to Keep the Gate
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Sometimes bench-bar conferences are actually useful.  Last week we wrote a post about a district court’s application of the New York statute of limitations to shut down a product liability lawsuit.  The key holding was that the statute of limitations began to run as soon as the plaintiff experienced relevant symptoms.  There was no need to wait for a medical diagnosis or, even worse, a plaintiff lawyer ‘diagnosis.’  Shortly after our post was unleashed upon the general populace, a fellow defense hack bumped into one of our fellow bloggers at a conference and mentioned that they had recently won on a similar issue – except their victory was before the Second Circuit.  How’s that for one-upmanship? The case is Rouviere v. Howmedica Osteonics Corp., et al., 2024 U.S. App. LEXIS 8201, 2024 WL 1478577 (2d Cir. April 5, 2024).  It is a summary order, meaning it has no precedential effect.  But it can still be cited and discussed, and that’s what we are doing today. (Rouviere has been a long and storied litigation. We have recited parts of that story here (Zoom depositions during Covid), here (turncoat experts), and here (reflections on Rambo litigation).

The plaintiff, proceeding pro se on appeal, had filed a lawsuit against two medical device companies in 2018. She claimed that she suffered complications from her hip replacement in 2012 after parts made by the defendants allegedly impinged upon one another and eventually caused a wide variety of issues, including metallosis.  The court helpfully explained what metallosis is, but we won’t.  From the name alone, you can assume that metallosis is not something you’d want. 

The causes of action sounded in product liability and breach of warranty.  The defendants prevailed on their motion for summary judgment on various grounds, including statutes of limitations.  The Second Circuit reviewed the decision granting summary judgment de novo. The Second Circuit also observed that pro se pleadings are “liberally construed” to raise the strongest arguments they suggest.  That observation might signal a bad result for the defense, but it doesn’t here. It turns out that the strongest arguments even possibly raised by the plaintiff were not strong enough. 

The appellate court affirmed the district court’s summary judgement in favor of the defense on statute of limitations grounds. The record revealed no genuine issue of material fact that the relevant symptoms began before May 2015. That timing turned out to be fatal for the plaintiff’s claims.  

The parties agreed that a four-year statute of limitations applied to the warranty claims, pursuant to N.Y. U.C.C section 2-725. A breach of warranty claim accrues “when tender of delivery is made” — regardless of “the aggrieved party’s lack of knowledge of the breach.”  There is no provision in the UCC for an extension of the limitations period based on tardy discovery of the alleged breach.  Accordingly, the plaintiff’s claims for breach of warranty were time-barred because they accrued, at the latest, on the date of her surgery (that is the latest date when the medical device could have been “tendered”) in 2012. Now for a little pseudo math: (2018-2012 > 4) = dismissal. 

The analysis for the product liability claim was slightly different, but equally dispositive. First, the limitations period for product liability is only three years, as opposed to the four years for warranty claims. Second, for purposes of the appeal, the Second Circuit assumed, without deciding, that the product liability claim was governed by the New York statute applying to toxic torts.  If you read our post last week, you know that such an assumption does the plaintiff a big favor because the statute of limitations for toxic torts postpones accrual until the plaintiff “discovers the primary condition on which the claim is based”. In last week’s case, the court held that the toxic tort did not apply because there was no latency issue, so the plaintiff was stuck with a statute of limitations that cut no slack for late discovery. 

By contrast, the Second Circuit in Rouviere  did cut such slack for the plaintiff, or at least concluded that such slack would do the plaintiff no good.  Why?  There is a huge difference between  the plaintiff’s recognition that she is suffering from a certain condition (which is what triggers accrual) vs. when “the connection between the symptoms and the injured’s exposure to a toxic substance is recognized” (which is the position every enterprising plaintiff lawyer will urge). Importantly, the Second Circuit rejected the plaintiff position and held that accrual does not depend “on the medical sophistication of the individual plaintiff [or] the diagnostic acuity of his or her chosen physician.”  Good reasoning and good turn of phrase.  

Third, even assuming application of the more plaintiff-friendly statute of limitations provision that bends time to await discovery of the injury, the plaintiff’s product liability claim in Rouviere was time-barred because there was no genuine dispute of material fact that she discovered the “manifestations or symptoms” of her injury from the hip replacement procedure more than three years before she filed suit in 2018. The plaintiff did not dispute that she experienced the relevant symptoms from 2012 to 2014. (The court does not tell us directly, but we are pretty sure that the defense lawyers did a nice job in discovery to nail this fact down.) The plaintiff connected those symptoms to her hip replacement in her amended complaint. Oops.  (We teach a litigation strategy class at the University of Pennsylvania Law School. In the second session of the class, we spend some time discussing the tension between telling a really good story in your complaint and pleading yourself into dismissal.) Even if, as the plaintiff argued on appeal, she did not subjectively identify the impingement of the hip replacement products as the cause of her symptoms before her revision surgery in 2016, that medical ignorance would not prevent her claim from accruing. 

Usually the last resort of a tort plaintiff trying to stave off the statute of limitations is a demand for equitable estoppel or tolling based on some alleged misconduct by the plaintiff. Rouviere follows this pattern. The plaintiff pointed to the defendants’ alleged concealment of the defectiveness of their products (that would be an exception swallowing up the statute of limitations entirely) and their alleged misrepresentations to the FDA about the safety of their products (you probably thought of Buckman before you read these words, right?). 

The Second Circuit rejected these bases for equitable estoppel/tolling.  First, the plaintiff was simply replaying her product liability failure to warn claims (which, again, is why we suggested that it would be an exception that would make the statute of limitations disappear in virtually every product liability case). Second, the plaintiff failed to explain what “subsequent and specific action” the defendants took, beyond their initial alleged omissions and representations about the safety of their products, to prevent the plaintiff from timely suing. None of the allegedly fraudulent actions involved the plaintiff. She did not show that either plaintiff misrepresented the appropriate statute of limitations or sought to prevent her lawsuit after she began to experience symptoms from her hip replacement procedure.  Further, the plaintiff did not show that she did not file her case within the statute of limitations because she reasonably relied on the defendants’ alleged misrepresentations to the FDA. 

We are grateful to Paul Asfendis (Gibbons P.C.) for alerting us to the Rouviere decision, and we congratulate Paul and his partner, Kim Catullo, for attaining such a fine result.  As always, we welcome news and suggestions from our readers. 

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No one can argue with that title because Bruno v. Bluetriton Brands, Inc., was most definitely dismissed completely on preemption grounds.  2024 U.S.Dist. LEXIS 98451 (C.D. Cal. May 6, 2024).  In so ruling, the court handed class action plaintiffs a significant defeat on of their latest litigation endeavors:  “microplastics” in water.  It’s not a drug or device case, but it is squarely an FDA preemption case, and that’s good enough to warrant a mention here.

Plaintiffs brought the putative class action alleging that defendant’s label– “100% Mountain Spring Water”—was misleading because during the manufacturing process and/or from the degradation of the plastic bottle, the product also contains microplastics.  Plaintiffs allege ingesting microplastics can cause various health issues.  Id. at *2.    

The FDA has specific regulations governing what products can be sold as “spring water.”  And they focus on where the water comes from and how it is collected.  Plaintiffs were not challenging that defendant’s product was in fact “spring water.”  Their dispute, according to plaintiffs, was with calling it 100% water because the presence of microplastics makes that an untrue statement.  Plaintiffs thought this distinction would put them outside of FDA regulations.  The court disagreed.

First, this is not a case where plaintiffs are alleging that defendant has failed to comply with the FDCA.  Not only are plaintiffs not challenging that defendant’s product is indeed spring water, there is no regulation prohibiting microplastics in spring water.  Plaintiffs cannot, therefore, assert they are pursuing a parallel claim.  Id. at *7. 

Second, challenging the “100%” on defendant’s label is essentially a request that either it be removed or that defendant be required to “more accurately disclose the composition” of its product.  Id.  Either would impose obligations on defendant beyond those imposed by the FDA.  Plaintiffs’ claims would therefore run afoul of the FDCA’s provision that “no state may directly or indirectly establish . . . any requirement for a food which is the subject of a standard of identity established” by the FDCA.  Id. at *5 (quoting 21 U.S.C. §343-1(a)(5)).        

Explicitly expressing skepticism that plaintiffs can replead their case to avoid preemption, the court is giving plaintiffs one more chance to amend.  The court also advised plaintiffs to look at the alternative grounds for dismissal raised by defendants in their motion.  Although not ruled on, the court suggested plaintiff consider any other deficiencies because plaintiffs’ Second Amended Complaint will be 100% their last.  Id. at *9.

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We recently discussed how “failure-to-recall” claims essentially don’t exist – outside of a couple of limited fact patterns that plaintiffs asserting such claims in litigation involving FDA-regulated products can almost never allege.  Today’s post adds the constitutional defense of preemption to good, old-fashioned state-law failure to state a claim.

Continue Reading Bartlett Pairs – “Failure To Recall” As a “Stop-Selling” Variant
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We like decisions applying Fed. R. Evid. 702 that recognize the recent amendment’s impact on judicial gatekeeping. A status update on post-amendment decisions is here, and there’s a lot to like.  We don’t like post-amendment decisions that barely recognize the amendments to Rule 702 and instead parrot pre-amendment case law. As key proponents of the recent rule amendments continue to emphasize, “Don’t Say Daubert.”  Hunt v. Covidien, 2024 WL 2724144 (D. Mass. May 28, 2024) says a lot about Daubert and pre-amendment case law, but very little about the recent rule amendments. Nonetheless, the decision excludes entirely the opinions of an expert regularly disclosed by plaintiffs on FDA regulatory issues—Dr. Laura Plunkett. 

Continue Reading Mixed Bag Rule 702 Ruling from D. Mass.
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The title is ridiculous, but unfortunately true.

Muldoon v. DePuy Orthopaedics, Inc., is a suit over “hip-replacement surgery conducted in 2007.”  2024 WL 1892907, at *1 (N.D. Cal. April 30, 2024) (“Muldoon II”).  Suit was not filed, however, until 2015 – undoubtedly Muldoon is another example of the flotsam and jetsam dredged up by MDL lawyer solicitation.

Continue Reading 15 Years After the Fact, This MDL Remand Case Is Still at the Pleading Stage
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(The Butler Snow members of the DDL blog had nothing to do with today’s post.)

Intricate issues of New York law have been in the news lately — but that has been about criminal law.  By contrast, New York’s application of the statute of limitations in civil tort cases did not surface on CNN, Fox, or MSNBC last week.  For that matter, this blog would not ordinarily discuss a court’s interpretation of the statute of limitations.  Such interpretations are usually pedestrian and fact-driven.  

But today’s decision, In re Ethicon Physiomesh Flexible Composite Hernia Mesh Products Liability Litigation, 2924 U.S. Dist. LEXIS 93722 (N.D. Ga. April 9, 2024), in which the court granted summary judgment on statute of limitations grounds, hits some important, generally applicable issues. 

The plaintiff claimed that she had been injured by hernia mesh that had been implanted in her. New York law applied because she was a citizen of New York, was implanted with the mesh in New York, sustained her alleged injuries in New York, and underwent a revision surgery in New York.  Her complaint included causes of action for negligence, breach of express and implied warranties, and strict products liability. 

Under New York law, the statute of limitations for personal injury torts is three years from the date of injury. Thus, the “statute of limitations issue turns upon when determination of Plaintiff’s injury occurred such that claim accrual began. Plaintiff argues that the ‘when’ is a matter to be decided by a jury.”  Wrong. The court decided the issue, and decided it against the plaintiff. 

First, the court held that New York law starts the statute of limitations running from the date symptoms first occur. There is no need to wait for any definitive medical diagnosis: the “three year limitations period runs from the date when plaintiffs first noticed symptoms, rather than when a physician first diagnosed those symptoms.” Symptoms = injury.  

Second, there is no discovery rule in New York, except for toxic tort cases. As is typical, the plaintiff argued for a discovery exception.  Often, plaintiffs end up arguing that such discovery does not happen until a helpful plaintiff lawyer tells plaintiffs they have a case.  Maybe an action does not accrue until a plaintiff’s lawyer hits the send button for electronic filing of the complaint.  Yes, plaintiff arguments are often that ridiculous.  But the court in this case was not having any of that.  

Still, there was that pesky New York statutory discovery exception  for actions “to recover damages for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances.”  But medical device cases are not toxic torts, and medical device injuries are not latent.  In this case, the plaintiff felt pain from the mesh way, way back.  She was on inquiry notice.  

The plaintiff “erroneously” focused on “discovery of the hernia defect that resulted in the revision surgery” as the necessary trigger.  Wrong, again. “Simply put, under New York law, the diagnosis of Plaintiff’s hernia recurrence is not the trigger for commencing the three year statute of limitations. As harsh as it may seem, this rule is unaltered even when there are multiple potential causes for symptoms and even in the case of misdiagnosis.”

Third, the plaintiff’s warranty claims were also barred, since the four year New York warranty statute of limitations runs from the delivery of the product.  The plaintiff endeavored to toll or enlarge this statute of limitations by extending the warranties to future performance. But the future performance exception is narrow.  There must be evidence of an explicit extension of warranty of future performance.  Mere promotion of a medical device does not expressly warrant its future performance.  In any event, the plaintiff “failed to produce evidence of her reliance.”

Finally, there can be no express warranty of future performance in an implied warranty case.  An “implied warranty, by definition, cannot contain an explicit guarantee.”