Photo of Stephen McConnell

It’s about time we got a Summer movie worthy of adult eyes.  Roger Ebert called the cinema a “machine for generating empathy.”  (The Life Itself biopic of Ebert is out now in theaters and available at home on demand.)  Not much empathy washes over us as we turn our eyes to Transformers or superheroes. All those explosions and flattened cities leave us feeling tired and hopeless, or feeling nothing at all.  Those films are about nothing.  The celluloid – or, more likely, the digital 0’s and 1’s – are full of sound and fury, signifying … well, you know.  It is life itself that offers thrills, mystery, and passion.  Where is that in the midst of the inevitable June-July CGI orgy?

It’s about time we got something to look at that said something about life itself.  And with Richard Linklater’s Boyhood, we’ve got it.  It’s about time.  Literally.  Linklater filmed a kid and his family over a 12 year period.  We see the actors age, which might sound like grim stuff, like watching our friends and, therefore, ourselves, slouch toward mortality.  But there is nothing grim about seeing a six year old emerge into adulthood.  That is life.  Dreams, experience, and memories collide and conspire to produce some luminescent thing that seems simultaneously transient and immortal.  It is more arresting and miraculous than cosmic warfare among the exoskeletons.  It stays with us long after the hobbits and avatars exit stage right.  As with Michael Apted’s Up series, or Linklater’s own Before series, Boyhood reminds us what life is about and what movies can do.  The film theorist Siegfried Kracauer said that the function of film is to do what no other art form can do – show light and movement.  We can see the leaves blowing in the wind, flaunting different shades of green as they flutter in sunlight.  We see things live and change in time.  Perhaps everything takes place under the eyes of eternity, but those are not our eyes.  Ours blink.  Ours close.

Time is the big subject today.   It always is.  The most important philosophical work of the 20th Century is not A Theory of Justice by that very nice Rawls fellow, but Being and Time by that not very nice Heidegger fellow.  Our favorite poem of the 20th Century, Auden’s “As I Walked Out One Evening,” is about time.  “Oh let not time deceive you/you cannot conquer time.”  Our favorite beach-reading book that we could not finish was A Brief History of Time.  Our favorite rock song is “A Day in the Life.”  Our favorite baseball team stinks because the star players all got old at once.  Father Time is undefeated.  Time marks victories and defeats.  Time marks births and deaths.  Time marks us.  Time also marks lawsuits.

We do not too often write about statute of limitations decisions.  They are fact-bound.  The people behind Seinfeld (which premiered 25(!)  years ago) vowed that their show would have no learning and no hugging.  Maybe we here at DDL won’t force a hug on you, but we do hope for some learning.  With statute of limitation decisions, we are usually unsure as to what we can learn from any particular case.   Not so with today’s case, Truitt v. Bayer, No. 13-CV-7811, (SDNY July 2, 2014).  A copy of the opinion can be found here.

Truitt comes out of the Mirena IUD Multi-District Litigation.  The plaintiff in that particular case is a citizen of Indiana.  She claimed that the Mirena IUD, which is used to prevent pregnancy, had perforated her uterus and migrated into her abdomen.  The plaintiff asserted several claims, including defective manufacturing, design defect, failure to warn, breach of implied and express warranties, negligent and fraudulent misrepresentation, and fraud by concealment. The defendants filed a motion to dismiss.  The statute of limitations was the primary ground urged for dismissal.  Because the plaintiff filed the case in the Northern District of Texas, Texas’s choice-of-law rules applied.  Under that choice of law, the plaintiff’s claim must be timely under both the two-year Texas statute of limitations for personal injury actions, as well as the laws of the state “in which the wrongful act, neglect, or default took place.”

The statute of limitations starts running from accrual, which is the date “the plaintiff first becomes entitled to sue the defendant based upon a legal wrong attributed to the latter,’ even if the plaintiff is unaware of the injury.”  The limitations period is tolled until the plaintiff discovers, or through the exercise of reasonable diligence should have discovered, the nature of her injury.  The discovery rule applies only where the nature of the injury is inherently undiscoverable.  Here is what is important about Truitt: the court avoids the epistemological quagmire into which too many courts sink, and makes clear that accrual does not await the plaintiff’s discovery of “the legal theory for holding a defendant liable for the action to accrue.”  Awareness of injury is enough and starts the clock.

In Truitt, the plaintiff had been aware for some time that the product had perforated her uterus and caused her pain.  The plaintiff also had believed that the device caused her cervix to thin and ovarian cysts to form.  But the plaintiff argued that her claims did not accrue – and thus the statute of limitations did not begin to run – until May 2013 when she saw a commercial that linked the injuries she suffered to Mirena.  Not surprisingly, the court disagreed with that argument.  Rather, the court applied the law of both Indiana and Texas, under which the statute of limitations for a products liability claim is triggered when a plaintiff knows, or should know through the exercise of ordinary diligence, that a product harmed her and she should inquire into her legal rights.  According to the court, “[t]hat day, at the latest, occurred when Plaintiff learned that the Mirena perforated her uterus and would have to be removed.”  The fact of injury, not the seduction of a lawyer-ad, is what counts.

Too often, we have seen courts dodge the statute of limitations in a motion to dismiss.  Too often, courts seem to think that plaintiffs are entitled to a little rope in the form of discovery before the trap door on the case is released.  But discovery is always expensive and not always necessary.  The plaintiff in Truitt made the all too typical argument that the court should not resolve the matter on a motion to dismiss because determining when the statute of limitations begins to run is a ‘”fact-specific inquiry.”’  The court rejected that argument, too, because the date on which the statute of limitations began to run was clear from the facts pleaded in the complaint.  The plaintiff’s own pleadings made clear that she had been provided enough information by her doctor “to suggest a reasonable possibility that a product caused a plaintiff’s harm.”  That information, by itself, was sufficient to trigger the statute of limitations.

The plaintiff continued to make arguments with different degrees of cleverness, but not differing degrees of futility.  The plaintiff argued that the statute of limitations was not triggered because: 1) the complaint did not state that she did not know the Mirena had harmed her;  2) she had no reason to suspect the Mirena had harmed her because she received no warnings regarding post-insertion events and thus suspected the Mirena had merely been inserted improperly; and 3) no doctor specifically informed her that the Mirena had malfunctioned and/or the products’ design or defect was the reason the Mirena perforated her uterus.  The court rejected all of those arguments.  The first said too little to matter: subjective belief is irrelevant.  The second said too much: “Plaintiff’s argument that she could not have known that the Mirena caused the perforation because the warning indicated migration would not occur after the first few days following insertion is simply misguided.  Under Plaintiff’s proposed interpretation of Indiana and Texas law, the statute of limitations for products liability claims related to medical devices would in effect be rendered a nullity if the warnings associated with the product do not warn – or minimize the risk – of the specific harm a plaintiff experienced.”  The third argument asks for too much.  It’s like an upside down Lone Pine – unless a doctor says the product caused the injury, the statute does not start.  Such a rule would be new, nutty, and unfair.  Instead, the court plumped for a simpler and saner formulation:  “Once Plaintiff learned that the Mirena had perforated her uterus and needed to be removed, she had enough information to inquire into causation and, therefore, the statute of limitations began to run.”  The court’s rejection of the plaintiff’s rather desperate arguments verged on the elegant:  “Under Plaintiff’s theory, as explained at oral argument, the statute of limitations would not begin to run until there was government action involving Mirena, such as a label change, or publicity about other lawsuits came to Plaintiff’s attention.  Unsurprisingly, no authority for such a rule has been presented.”  Indeed.  Happily, Truitt continues that absence of authority.

So much for the product liability claims.  The statute of limitations for the plaintiff’s breach of express warranty claim would begin to run from the date the Mirena was inserted – unless there was an express warranty that explicitly extended to future performance.  There wasn’t.  The negligent misrepresentation claims were also time-barred. The fraud claims were not necessarily time-barred, but they clearly did not meet the standard for pleading a fraud set forth in Fed.R.Civ.P. 9(b). The court gave the plaintiff two weeks to present a fraud pleading that would comport with Rule 9(b).  We have a feeling that plaintiff will have trouble satisfying that standard, even if she had all the time in the world.

We offer a tip of the cyber cap to our friends at the Goldman Ismail firm who brought this excellent result to our attention. The decision is useful.  And timely.