Routine dismissals of pharma cases based on the statute of limitations don’t get on our radar screen. They’re too state and fact specific. But the statute-based dismissal in Lewandowski v. Bayer, 2010 U.S. Dist. Lexis 128951 (S.D. Fla. Nov. 15, 2010), a case arising in the Trasylol MDL, has several features that take it out of the realm of “routine.”
First, there’s conflict of law. The plaintiffs tried to argue that a case where the plaintiff – a Virginia resident, who took the drug in Virginia upon the prescription of a Virginia plaintiff – should be governed by Pennsylvania law, because that is where the lead defendant was headquartered. The court, applying Florida choice of law rules, thought that argument was silly and quite correctly applied the law of the state where everything peculiar to the case occurred. 2010 U.S. Dist. Lexis 128951, at *11-14. We like choice of law decisions that apply the law of the plaintiff’s home state, largely because they help defeat class actions (multiple states’ applicable law generates scads of non-common issues and management problems), but we’ll take them in any context we can find them.
Second, there’s the sleaze factor. In Lewandowski, the plaintiff was deposed and gave away the store. Obviously she missed the memo to lie through her teeth. Why do we say that? Because after her deposition the plaintiff submitted a ten-page “errata sheet” purporting to “correct” her testimony in ways uniformly helpful to her case. We’ve had that happen to us occasionally, and we hate it when it does. The court in Lewandowski hated it too. There’s an excellent discussion – with lots of citations – explaining that because “Plaintiffs’ errata sheets do not reflect errors in transcription” but instead “directly contradict the substance of Plaintiffs’ initial testimony” the court can reject them in toto. 2010 U.S. Dist. Lexis 128951, at *21-25. Our readers will want to remember Lewandowski the next time a sleazeball plaintiff tries to erase his/her testimony after the fact.
Third, there’s nostalgia. Lewandowski got bounced because Virginia doesn’t recognize a discovery rule on its statute of limitations (why plaintiff tried so hard for Pennsylvania). 2010 U.S. Dist. Lexis 128951, at *17-18. For that proposition, the court cited (along with a couple of other things): Wade v. Danek Medical, Inc., 182 F.3d 281, 285 (4th Cir. 1999), and Smith v. Danek Medical, Inc., 47 F. Supp. 2d 698, 701 (W.D. Va. 1998). 2010 U.S. Dist. Lexis 128951, at *17. Those are Bone Screw cases, and Bexis in particular is gratified to see that, more than a decade later, they’re still the gift that keeps on giving – heartburn to plaintiffs from coast to coast.