This weekend, we are traveling to Nashville, where, decades ago, we lived for a couple of years during a period of wanderlust. Nashville was to be a brief stop-off on a cross-country driving odyssey. But we never got any farther down the road, leaving Nashville only to reverse course and return to college (to our parents’ great relief). All these years later, a huge part of our heart still lives at the intersection of Interstates 40 and 65, and we journey back as often as we can to visit friends we’ve treasured for as long as we can remember. The town has changed, to be sure. The tiny radio station on the hill, where we sat with a dear and now-departed friend during his late-night country music show, no longer broadcasts. There is a pro football team now. Buildings and highways and traffic have multiplied exponentially. And the old Ryman Auditorium, the “mother church of country music” and original home of the Grand Old Opry, has been reborn as a concert venue. (From the balcony of the current Opry House, looking down on the stage, patrons can see a large circle of wood that doesn’t match the rest of the floor. This was taken from the Ryman when the new Opry House was built, to harness some of the sacred energy of that hallowed old place.)
But with all that has changed, going back still feels like going home, and the city still feels sweet and familiar, but with a twist. As does today’s case, a familiar-feeling statute of limitations decision except for the twist created by the very modern context of prescription drug addiction. In Allen v. Indivior, Inc., 2018 U.S. Dist. LEXIS 134279 (N.D.N.Y. Aug. 9, 2018), the plaintiff, a college student and aspiring investment banker, became dependent on a narcotic pain-killing drug after a car accident. In an attempt to wean him off of the painkiller, his doctor prescribed a drug used as replacement therapy to treat painkiller dependency. He took the replacement drug daily for twenty months, until, his Complaint alleged, he became “completely addicted” to it. He tried to stop using the drug and enrolled in an in-patient program to help him deal with his withdrawal symptoms. After twenty-one days, he went home to his family, where, a short time later, he overdosed on heroin and died. His parents sued the replacement drug’s manufacturer, asserting the usual product liability causes of action and alleging that, because of his addiction, “the only way” the plaintiff could treat his withdrawal “was with heroin.” The defendant moved to dismiss, asserting improper venue/lack of personal jurisdiction and statute of limitations arguments.
First, the court held that venue was not proper in the Northern District of New York; instead, the case should have been filed in the District of Connecticut. The court cited 28 U.S.C. § 1406(a) for the proposition that it could, in its discretion, either dismiss the case or transfer it to the correct district. While transfer is generally favored, the court quoted the great Judge Posner for the proposition that, if “a case [will be] a sure loser in [the correct court], then the court in which it is initially filed . . . should dismiss the case rather than waste the time of another court.” Allen, 2018 U.S. Dist. LEXIS 134279 at *8-9 (citation omitted). And so the court proceeded to determine whether the case was a “sure loser” on statute of limitations grounds.
The court explained that, under Connecticut’s three-year statute of limitations, the plaintiff was required to serve the Complaint – not just file it – within three years after he could first attribute his injuries to the defendant’s conduct. The defendants argued that the plaintiff’s claims were time-barred because the injury at issue was the plaintiff’s addiction to the replacement drug, and that the plaintiff was aware that he was “completely addicted” to the drug – and entered the in-patient program as a result – more than three years before the complaint was even filed.
The plaintiffs argued that that the triggering event was the plaintiff’s death, not his addiction, and, adding facts they had not pled, they argued further that the cause of death was not determined until the autopsy report was issued and the toxicology results were returned, all within the three-year limitations period. The court disagreed, holding that the gravamen of the complaint was the claim that the defendants’ alleged negligence in designing and labeling the drug caused the plaintiff’s “crippling addiction,” and that the plaintiff knew he was addicted — and sought treatment for his addiction – well over three years before the Complaint was filed or served. Even if the plaintiff’s claims did not accrue until the date of his death, the court pointed out that the defendants had not been served with the complaint three years after that date. The court rejected the plaintiffs’ argument that an e-mail purportedly sent to one of the defendants on the three-year anniversary of the plaintiff’s death placed the defendant on “constructive notice” of the impending service of the Complaint.
And so, this “sure loser” of a case was dismissed, not transferred. We expect to see more cases arising in the context of prescription drug addiction and more “grey areas” related to when claims accrue in that context. We will keep you posted on this new “twist” in statute of limitations law. And we’ll have a drink for you this weekend in Tootsie’s Orchid Lounge, across the alley from the old Ryman, fifty-eight years old and going strong.