Sometimes (not that often) we run across a decision that so blatantly misses controlling precedent that we have to wonder who was asleep at the switch, the court or counsel.  The recent decision, Dorsett v. Sandoz, Inc., 2009 WL 3633874 (C.D.Cal. Oct 28, 2009), is one of those.

We first read Dorsett because it involves one of our bêtes noires, Conte v. Wyeth, Inc.,  85 Cal.Rptr.3d 299 (Cal. App. 2008), which, although the court tried to deny it (“[w]e are not marking out new territory,” id. at 311), invented a hitherto unknown “misrepresentation” theory of liability that allowed a non-manufacturer brand-name drug manufacturer to be liable to a plaintiff that never took its product, but only the product of a known generic manufacturer.  Anyway, enough ranting about Conte.  We’ve done plenty of that before, here, here, here, and here.

No “new territory”?  Hogwash.  Nobody believes that.  Least of all the court in Dorsett.  In Dorset, the plaintiff sought to bring a Conte-style claim despite more than four years having passed since a known injury (a suicide), and more than two years after having first filed suit.

Without dispute, the relevant California statute of limitations was two years.  The court let the plaintiff get away with it anyway, ruling that the Conte decision was so novel, that nobody could have been expected to anticipate it:

Plaintiff was unaware that the law permitted her a cause of action against [the brand-name defendant] until the California Court of Appeal’s decision in Conte. . . .  Prior to Conte, every single court to address the issue of brand-name-manufacturer liability for conduct leading to or arising out of the generic version of a drug had concluded that the brand-name manufacturer was not liable. The Conte court was the first to allow brand-name manufacturer liability for a generic drug. Because Plaintiff was unaware prior to Conte that a cause of action existed against [the brand-name defendant], the substitution of [it] relates back to the filing of the original complaint.

Dorsett, 2009 WL 3633874, at *2.  In other words, everybody in the world, no matter how badly they’ve blown the statute of limitations, can bring a Conte action (if they’ve got a generic-caused injury) as long as they file within two years of the Conte because Conte created an entirely novel theory of liability.

That can’t be right, and it isn’t.  Something went haywire.  The Dorsett court states:  “Defendant cites to no authority compelling the conclusion that the change-in-law analysis. . .requires an existing, contrary California precedent.”   Dorsett, 2009 WL 3633874, at *3.

We have a great deal of trouble believing that, because California is the leading jurisdiction rejecting the contention that a new, weird theory of liability resets the statute of limitations.  That’s because the California courts have a history of creating new, weird theories of liability.

Like market share liability.  See Sindell v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980).

Years ago, plaintiffs tried the identical argument in Dorsett with respect to market share liability.  It went to the California Supreme Court, and that court flatly rejected the idea that knowledge of a novel legal theory, as opposed to knowledge based upon the facts of the plaintiff’s case, had any bearing on the statute of limitations.  The Supreme Court of California held:

Plaintiff’s contention that our decision in Sindell redefined “causation” and “wrongful,” providing the crucial “fact” necessary for her to suspect wrongdoing, is without merit. . . . At this point it is necessary only to point out the oft-stated rule that it is the discovery of facts, not their legal significance, that starts the statute. All of the facts set out in Sindell that are relevant to plaintiff’s case were either already known by her. . .or could have been discovered through a reasonable investigation. . . .

Plaintiff’s major argument. . .is that our landmark decision in Sindell, constituted the “fact” that activated the statute. . . . The response to plaintiff’s contention is that a change in the law, either by statute or by case law, does not revive claims otherwise barred by the statute of limitations. . . . First, the rule encourages people to bring suit to change a rule of law with which they disagree, fostering growth and preventing legal stagnation. Second, the statute of limitations is not solely a punishment for slow plaintiffs. It serves the important function of repose by allowing defendants to be free from stale litigation, especially in cases where evidence might be hard to gather due to the passage of time. Third, to hold otherwise would allow virtually unlimited litigation every time precedent changed.

Jolly v. Eli Lilly & Co., 751 P.2d 923, 929-32 (Cal. 1988) (all sorts of stuff omitted to make the block quote even this short).

Jolly seems directly on point, and it flatly rejects that theory that the plaintiff advanced in Dorsett – that a judicial decision’s (Conte) change in the law restarts the statute of limitations.  A contrary rule of law would invite jurisprudential chaos:

Courts simply are not equipped to handle cases dating back many years, eventually brought because the law has changed. This prohibition against revival of claims can obviously create a hardship on such unfortunate plaintiffs (and a windfall to fortunate defendants). However, the hardship is no greater than that incurred by plaintiffs who received an adverse final judgment based on the “old” law and are barred from relitigating their case by res judicata.

Jolly, 751 P.2d at 1117.

And yet Jolly is not even mentioned in Dorsett.  This seems like so blatant an omission that we’re left scratching our heads wondering if we’ve missed something.  Jolly‘s certainly good law – we shepardized the case.  The relevant Jolly headnotes are 6 (“It is discovery of facts, not their legal significance, that starts statute of limitations”) and 10 (“Change in law, either by statute or case law, does not revive claims otherwise barred by statute of limitations”).  Neither of these headnotes have been so much as “distinguished” since Jolly was decided.

The only conceivable distinction is the Dorsett plaintiff’s resort to “John Doe” pleading.  But the statute that permits this, Cal.C.C.P. §474, doesn’t extend the statute or itself provide for relation back.  That all seems like common law that would feed back into the analysis by the court in  Jolly.  Nothing jumps out at us why Jolly would not be equally applicable to a “change of law” argument asserted in the context of “John Doe” pleading.

Thus it looks to us that Dorsett is wrongly decided under controlling California law.

POST-SCRIPT – 12/16/09.  Nope, apparently we were wrong.  California “John Doe” pleading (which we don’t claim to understand) makes all the difference.  For a detailed description of why a “John Doe” pleading can accomplish precisely the same result (even using the same legal arguments) that the California Supreme Court forbade in Jolly, see the excellent responding post at CalBizLit.