It’s cold here in Philadelphia and in much of the country. Really cold, your-car-makes-weird-noises-you-start-it cold. When it’s this cold up here, people start fantasizing about moving to Florida and leaving their snow shovels, rock salt, hats, coats, gloves, and all that behind.
Is there a point to this about drug and device law, you may wonder? Yes, there is. Like those constricting coats and scarves that keep us warm but limit our freedom of movement, many states in the Northeast and middle Atlantic states have two-year statutes of limitations for tort claims. But Florida, a sunnier land for tort plaintiffs, has a four-year statute. And snowbirds with potential causes of action might think that they left their home state’s restrictive statute of limitations behind with their snowblowers when they moved to Florida. Chapman v. Depuy Orthopedics, 2011 WL 149329 (M.D. Fla. Jan. 18, 2011), shows that ain’t necessarily so.
The plaintiff in Chapman had her hip replaced in 1995, when she lived in Virginia. She moved to Florida in 2000 and was treated by a Florida doctor, although he sent her x-rays back to her doctor in Virginia. In late 2006, a fatigue fracture was detected, and the injury manifested itself and was discovered in Florida. She returned to Virginia for treatment and had another hip replacement there in 2007. She sued Depuy in Florida in June 2009, more than two years, but less than four years, after detection of the problem with her replacement hip. Depuy moved for summary judgment, arguing that her claim was untimely under Virginia law. Plaintiff argued that she left Virginia’s statute of limitations behind and that Florida’s statute of limitations applied.
The court applied Florida’s choice of law rules to decide which state’s law to apply. Florida follows the “most significant relationship” test, which considers a bunch of factors. The bad news for Depuy is that the place of injury is usually considered the key factor in tort cases, and some judges stop their analysis right there.
But usually does not mean always. The Chapman court found “that the place where the injury occurred is little more than happenstance under the circumstances presented here.” Id. at *2. The court relied on the facts that plaintiff received her replacement hip in Virginia, had follow up care there from 1995 to 2000, had her x-rays sent there after she moved to Florida, and returned to Virginia for treatment when the hip failed in 2006. Id. The only factor favoring Florida was that the injury manifested itself and was discovered there, but that did not override the other factors. As a result, the court held that “Virginia, the state where the product was delivered and where all the significant medical services were rendered, has a greater interest in applying its law to determine the duties and liabilities arising from those activities than Florida.” Id. at *3.
That was the ballgame for plaintiff. The clock on her claim unquestionably started to run in December 2006, when the fatigue fracture was found, and her June 2009 lawsuit was therefore too late under the Virginia statute of limitations. Id.