One side effect of the Judicial Panel on Multidistrict Litigation’s refusal to make the pain pump cases an MDL is that many different courts are ruling on the inadequacy of the pain pump complaints. The Western District of Pennsylvania took its turn last week in Kester v. Zimmer Holdings, Inc., 2010 U.S. Dist. LEXIS 59869 (W.D. Pa. June 16, 2010). The opinion contains a few useful rulings.
1. It is a commonplace that a defendant cannot move to dismiss based on the statute of limitations. The Kester court rightly observed that such a motion is permissible if the complaint’s untimeliness is apparent from the facts alleged in the complaint. Id. at *43 n.11. Plaintiff’s complaint was facially time barred because she filed the complaint more than two years after the date alleged in the complaint that she received the pain pump. Id. at *44. Plaintiff argued that the discovery rule saved her from dismissal and that it was “nonsensical” to think she would have known immediately upon receiving the pain pump what caused her injuries. But she had the burden under Pennsylvania law to prove the diligence required by the discovery rule, the court said, and therefore her complaint had to allege facts showing such diligence. Id. at *45-47. Without those allegations, her complaint was time barred on its face and would be dismissed. Id.
2. The court joined many other pain pump decisions and held that the complaint had to identify which of the many named defendants actually made the product that allegedly caused plaintiff’s injury. Id. at *17-24. The court rejected her argument that Rule 8(d), which allows pleading in the alternative, authorizes her to sue several potentially responsible defendants until she figured out which one made the product. Id. at *19-221. The court also rejected the plea we have heard time and again from plaintiffs – “Your Honor, even if my complaint is inadequate, just let me take some discovery and I will find facts to support my claim.” The court said she had to plead a valid claim before taking discovery. Id. at *22-23. And because she could not identify who actually made the products given to her, plaintiff also could not say who made which misrepresentations to whom. and her fraud-based claims were dismissed for failure to satisfy Rule 9(b). Id. at *40-41.
3. Plaintiff’s breach of implied warranty and strict liability claims were dismissed because Pennsylvania law does not recognize those claims for prescription drugs and medical devices. Id. at *25-27, 32-33.
4. The learned intermediary doctrine barred plaintiff’s claim under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law. “[A] private right of action under the UTPCPL requires proof of justifiable reliance and causation, and such requirements cannot be present when the defendant is a pharmaceutical company that did not sell its product directly to the patient.” Id. at *42-43 (citation omitted).
The court gave plaintiff leave to amend, and we’ll see if she can fix these deficiencies. No matter what happens, the decision has given defendants a few more arrows in our quivers.