Most of the time we do not linger on cases that turn on the statute of limitations.  They are often fact-specific to the point of dreariness.  In addition, from a doctrinal perspective, there isn’t much new under the Sun when it comes to a SOL analysis.  But the SOL discussion in Hendrix v. Novartis Pharmaceutical Corp., 2013 U.S. Dist. LEXIS 14936 (C.D. Cal. Oct. 2, 2013), is so comprehensive and cogent that it merits a look, a post, and a new entry on our cross-jurisdictional tolling scorecard.

Hendrix is yet another Aredia-Zometa case.  As we said last week, we are becoming a scrivener for the ongoing A-Z saga.  As with all A-Z cases, the plaintiff ingested Aredia or Zometa as part of cancer treatment and claimed to have suffered osteonecrosis of the jaw (ONJ) as a result.  Also, because there is an A-Z MDL, the filing/forum  history of the case is something of an adventure.  The plaintiff filed his Complaint in the Eastern District of New York on January 17, 2006.  The case was consolidated in 2007 into the MDL in the Middle District of Tennessee.  The defendant filed its SOL motion, but before it could be heard by the MDL court, the case was remanded back to EDNY.  Then the parties moved to transfer the case to C.D. Cal.  If the case could acquire frequent flyer miles, it would have earned enough to … ah, who are we kidding?  With all the restrictions on frequent flyer awards, the case wouldn’t be able to get a free flight anywhere.  It wouldn’t even get free WiFi or a do-it-yourself Bloody Mary.

It makes sense for Hendrix to end up in C.D. Cal., because the treatment and alleged injury took place in California and California law applies.  Under California law, personal injury actions are subject to a two year limitation.  Thus, the issue is whether the cause of action accrued before January 17, 2004.  If it did, the SOL means that the plaintiff is SOL.  To avoid that result, the plaintiff assembled the usual suspects when it comes to SOL:  (1) the defendant waited too long to raise the issue (almost as if there is an SOL to SOL defenses); (2) the “discovery” rules saves the day for the plaintiff; (3) cross-jurisdictional tolling saves the day, because somebody somewhere filed a baseless class action that somehow made everybody else freeze up; and (4) equitable tolling is necessary, because … because it would be “equitable.” Let’s face it, the word “equitable” too often is the last refuge for litigants with shoddy arguments.  We are happy to report that none of those arguments worked.

The plaintiff argued that the defendant waived its statute of limitations defense by failing to raise the defense in its original motion for summary judgment.  But under the Federal Rules of Civil Procedure, an affirmative defense properly pleaded in the answer is not waived despite the defendant’s failure to raise the defense in a later motion. The SOL defense was included in the defendant’s answer to the complaint. (So, despite our yammering at unfortunate young associates, there really is a reason to include every conceivable defense including the kitchen sink in the answer).  The court concluded that the defendant did not unduly delay in raising the SOL defense and that the plaintiff suffered no unfair prejudice. Hendrix, 2013 U.S. Dist. LEXIS 143936 at *11-12.  It is not as if the SOL defense was a bolt from the blue.

The discovery rule means that a cause of action does not accrue until the plaintiff discovers, or has reason to discover, that he has been wrongfully injured.  The parties agreed that the alleged injury, the ONJ, occurred no later than 2002.  The action is barred by the statute of limitations unless the plaintiff carries his burden of showing that he had no actual or inquiry notice of the nature of his cause of action (that Zometa caused the ONJ) prior to January 17, 2004.  To lean on that hideously overused phrase, what did the plaintiff know and when did he know it?  The plaintiff recalled having a conversation with one of his doctors where it was stated that Zometa was the likely cause of his broken jawbone.  The plaintiff did not remember the date, but the doctor’s notes indicate that the visit happened on September 18, 2003.  Moreover, there were medical records where other treating doctors indicated “with varying degrees of certainty, that the ONJ was linked to Zometa.”  Hendrix, 2013 U.S. Dist. LEXIS 143936 at *17.  The plaintiff argued that these mere suspicions by the doctors did not start the clock running, but “California law does not require a plaintiff to be certain of the cause of his injury before his cause of action accrues; it merely requires facts sufficient to put a reasonable plaintiff in suspicion that he has been wronged.”  Id. at *19.  The plaintiff also argued that a reasonable investigation could not have uncovered a causal connection between Zometa and ONJ in 2003 because at that time, the defendant denied such a connection.  Hmmm.  If that argument worked, plaintiffs would be able to dodge the SOL almost every time.  But the court held that the “discovery rule does not delay the accrual of a cause of action until the defendant admits to the alleged wrongdoing.”  Id. at *21.  Whew!

Now we get to the issue of cross-jurisdictional tolling.  On September 15, 2005, a Zometa class action was filed in the Middle District of Tennessee.  Predictably, the plaintiff in Hendrix contended that the rule of American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974),  should apply to toll the statute of limitations on his claim during the pendency of a class action suit in which he was a member of the putative class.  Such tolling might possibly save the Hendrix complaint.  The September date was important, because much of the evidence showing that the plaintiff and his treating physicians began to suspect that the Zometa treatments were linked to his ONJ was tethered to the time period around September of 2003.

At this point we are permitted to do one of our favorite things – explode stereotypes.  Just as we love pointing out instances where supposedly pro-plaintiff Philly juries see through bogus plaintiff claims, we enjoy marinating in those moments when the California Supreme Court – the same one that was portrayed by our law school professors way back when as always inventing new forms of cost-sharing, social insurance, and various Trotskyite/Sandinista economic recalibrations – actually issues good law.  In Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103 (1988), the court declined to apply the American Pipe rule to a personal-injury mass-tort action case arising from alleged product defects and negligence relating to a prescription drug.  The California Supreme Court reasoned that “the lack of commonality that typifies personal-jury mass-tort class action cases presumptively precludes application of the American Pipe tolling rule because the class action suit rarely will serve to sufficiently notify the defendants of each class member’s claim.”  Hendrix, 2013 U.S. Dist. LEXIS 143936 at *26.  If there is one court even more caricatured as a plaintiff-hugger than the California Supremes, it is the Ninth Circuit.  (Mind you, the author of this post clerked on that court, once working on an opinion that was reversed 9-0 by the U.S. Supreme Court – even Marshall and Brennan had to agree with Rehnquist et al. that the evidence against the hopeless criminal defendant should not be suppressed.)  And yet, mirabile dictum, the Ninth Circuit in Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1025 (9th Cir. 2008), acknowledged that California, like most states, had not adopted “cross-jurisdictional” tolling.  The Ninth Circuit went on to voice a reluctance to import a doctrine not embraced by the state’s highest court.  Who says the Ninth Circuit is a stranger to judicial restraint?

When even the California Supreme Court and Ninth Circuit cannot bolster a plaintiff’s theory, it’s time to move on.  Perhaps that is why, in the same breath as it argued for the doomed cross-jurisdictional tolling, the Hendrix plaintiff argued in the alternative for equitable tolling.  That concept is just about as malleable and messy as it sounds.   Basically, the plaintiff sought a Mulligan on the grounds that he is a resident of California who acted in good faith and, after all, the defendant was not prejudiced by having to defend against this separate action.  Truly, to be a California resident does seem to be an adequate basis for demanding a little more of life’s blessings.  The Ninth Circuit’s ‘black-letter’ test for equitable tolling was announced in Hatfield v. Halifax PLC, 564 F.3d. 1177 (9th Cir. 2009):  “(1) timely notice to the defendant in the filing of the first claim; (2) lack of prejudice to the defendant in gathering evidence to defend against the second claim; and (3) good faith and reasonable conduct by the plaintiff in filing the second claim.”  That ‘black-letter’ test is like the ‘balancing’ tests that Justice Hugo Black used to decry as so much pseudointellectual window dressing that permits courts to do whatever they want.

Here the Hendrix court did a remarkable, honest, disciplined thing.  It resisted the bait of equitable tolling for the simple reason that the facts in its case were “simply too close to the facts of Jolly.”  Hendrix, 2013 U.S. Dist. LEXIS 143936 at *35.  Read with the sort of open-hearted, empty-headed approach advocated by the plaintiff, equitable tolling  would render Jolly a dead letter.  Further, there would not really be anything equitable about letting the plaintiff elide past the SOL. The plaintiff “did not delay filing this action because of the pendency of the Tennessee Class Action.  It is not plausible that Plaintiff relied on an out-of-state class action suit as part of the diligent pursuit of his rights, and thus equitable tolling does not apply.”  Id. at *37-38. The reasoning in Hendrix is compelling.  It is timely.  It is clear.  It is as comprehensible and inevitable as a calendar.

We tip the cyber-cap in the direction of Phil Busman at Hollingsworth for calling this case to our attention.