This guest post was written by Sean P. Costello. Mr. Costello is an associate resident in the Atlanta office of Jones Day. This post is entirely his work. It, of course, represents only his views, and not the views of his clients or firm:
At 10:00 a.m. (Central Standard Time) today, the Minnesota Supreme Court handed down its highly anticipated decision in Fleeger v. Wyeth. Here’s the decision, hot off the presses. The decision is good news for some in the Minnesota plaintiffs’ bar, but it is a disappointment for non-Minnesota companies who find themselves the target of products liability suits and the lawyers who represent those companies.
Herrmann and Beck gave this blog’s readers a head’s up about the Fleeger decision a couple of days ago and summarized the history and posture of the case in that post. And I have guest-posted about positive signs that Minnesota’s courts might soon abandon their practice of applying Minnesota’a ultra-liberal statute of limitations to products liability claims having nothing to do with the state or its residents.
In Fleeger the Minnesota Supreme Court was asked to answer the following certified question from a federal district court overseeing an MDL proceeding involving products liability claims against a variety of drug manufacturers: “In a case commenced in Minnesota, does the Minnesota statute of limitations apply to the personal injury claims of a non-Minnesota resident against a defendant not a resident of Minnesota, where the events giving rise to the claims did not occur in Minnesota and took place before August 1, 2004?”
As framed, the question looked to be both loaded and leading. Indeed, it was almost rhetorical. No way the Minnesota statute of limitations would apply to personal injury claims brought by a Pennsylvania resident (Fleeger), who used the product in Pennsylvania (also Fleeger), and claims to have been injured in Pennsylvania (this, too, describes Fleeger), against non-Minnesota defendants. That “no way” earned an exclamation mark when you added in the fact the statute of limitations had run on the claim in the state where the plaintiff lives and where everything that matters in the case actually happened. Filing in Minnesota was obviously a transparent means of avoiding a claim-dispositive defense, because Minnesota has a generous statute of limitations for personal injury claims. That’s forum shopping, and most folks think that is a bad thing. Thus, a rule that encourages forum shopping would be, well, a bad rule. (In fact, in Fleeger, the plaintiff conceded that her claim would be barred by her home state’s statute of limitations, so even she made no effort to hide her motives.) “No way,” after all, is how the courts in virtually every other state in the country would come down on the question.
But not the Minnesota Supreme Court. It answered “yes” to the certified question. And it did so without breaking a sweat. According to the court, the rule of stare decisis made the question an easy one to answer: “The common law is clear. When directly faced with the issue, we have considered statutes of limitations to be procedural without exception.” Slip op. at 8. Consequently, the court wrote, “we have applied the Minnesota statute of limitations to cases properly commenced here [in Minnesota] regardless of whether those cases have any connection to this state.” Id. at 9 (emphasis added).
As shockingly candid as that assertion is, it is the law in Minnesota for pre-August 1, 2004 claims. (In Fleeger, the parties agreed that the Minnesota Supreme Court could assume that the plaintiff’s claims arose in 2002.) The tyranny of lex fori continues. Despite the fact that other state courts have abandoned lex fori – which the court acknowledged – and the fact that “a great deal of legal commentary” (id. at 9) supports departing from that rule, the court would not budge.
So, it seems that Minnesota will remain the Ellis Island for tired, old personal injury lawsuits that have no other place to go. But only to a point and not for long. Thanks to Minnesota’s Conflict of Laws-Limitations Act, Minn. Stat. Sec. 541.31 (2008), Minnesota will not long remain a beacon for “huddled masses” of plaintiffs’ lawyers with time-barred claims. That statute replaces lex fori with the more modern choice-of-law analysis when it comes to the statute of limitations for “claims arising from incidents occurring on or after August 1, 2004.” (Hence the date in the certified question.) As we head into 2010 and beyond, fewer and fewer claims will escape the statute’s reach. This, perhaps ironically, was part of the reason the Minnesota Supreme Court was unwilling to abandon lex fori (slip op. at 10):
A prospective change . . . would apply only to cases commenced between the date of this decision and August 1, 2010. And a retroactive change would only affect cases that arose before August 1, 2004, which have not yet been finally resolved. Such a limited effect does not present the compelling reason necessary to overrule our precedent.
In other words, “why bother?” I don’t quite see it that way. For defendants currently in such lawsuits and with the threat of such lawsuits looming for nearly another year, the effect is far from limited. That a statute will eventually eliminate the problem is no reason to forgo the opportunity to fix the problem now.