As people we strive to be honest and fair.  As lawyers we strive to be honest, fair and zealous.  We strive to do what is right for our clients and sometimes that can push us to take risks that lead to the development of new legal precedent.  Sometimes it can push us to make arguments that are cutting-edge and innovative.  It is one of the reasons we blog – to share those victories with a broader audience. 
Sometimes, however, our zealous advocacy can get the best of us and cause us to make arguments that in hindsight were ill-conceived.  Typically on this blog we are pointing out the not-so-sound tactics of plaintiffs’ counsel.  But, it is important to self-reflect as well.  To be aware of our own missteps.  Plaintiffs’ attorneys surely pick apart our errors looking to gain any advantage they can, so we can’t just sweep them under the rug.  Not every case is a winner. But, if there is a lesson to be learned, we should learn it so we don’t repeat it.  
Today’s lesson – don’t make arguments that make you appear “disingenuous.”  Unfortunately, that is the word the court used in Cates v. Stryker Corp., 2012 U.S. Dist. Lexis 9825 (E.D. Ten. Jan. 27, 2012).  
            The case involved a pain pump implanted in plaintiff’s shoulder following arthroscopic surgery.  The pump delivers an anesthetic to control post-surgical pain.  Plaintiff alleged that the pain medication was actually toxic to the shoulder cartilage leading to a condition known as glenohumeral chondrolysis, which causes constant pain, loss of full use of the shoulder/arm and can require a shoulder replacement.  Id. at *3-4.  The surgery took place in 2005 and plaintiff filed suit in 2010, so the defendant moved to dismiss the plaintiff’s negligence and strict liability claims as barred by Tennessee’s one year statute of limitations.  Id. at *6. 
            Because Tennessee applies the discovery rule to determine when the statute of limitations begins to run – the issue in this case is when plaintiff could have reasonably discovered that his injuries were related to defendant’s pain pump.  And here’s the rub.  In its pleadings – presumably in response to allegations about failure to warn – the defendant stated that “the [medical] literature notes that the cause of chondrolysis is multifactorial and the role of pain pumps in the development of chondrolysis has not been established.”  Id.  at *8.  And there was apparent support for this assertion:

Moreover, as recently as November 2009, the FDA issued a statement to the effect that the cause of chondrolysis in the shoulder, even when infusion pumps are prescribed, is unknown.

Id.  (citation omitted).
            With these statements on the record, the court was unpersuaded by defendant’s argument that plaintiff’s claims were time barred because the plaintiff “should have discovered his injury based on the wealth of scientific information available.”  Id.  The court went on to say: 

It is disingenuous for [defendant] to argue that the role of pain pumps in causing chondrolysis is not clear to trained medical people, yet argue that [plaintiff], a layperson with no medical training, should have discovered that the use of a pain pump may have caused his continuing shoulder problems. 

Id. at *8-9.  
Either the state of medical knowledge is in flux and therefore, defendant could not reasonably warn of an unknown risk or there was sufficient information available for plaintiff to have discovered the alleged causal link between the device and his injuries.  But, you can’t have it both ways.  So, our word of caution – if one of your defenses is that causation was scientifically unknowable, it’s not a good idea to turn around and make the opposite argument regarding the discovery rule and the statute of limitations.  Not only are you likely to lose your statute argument, you may also lose credibility with the court.