We did a search of the DDL Blog for “continuing violation” and found only one other reference and that was simply to note that the court rejected the theory without explanation. So, it’s not the first time a plaintiff has tried to argue the continuing violation theory to avoid the statute of limitations in a pharmaceutical case, but this time the Eighth Circuit gave it just a little more attention and fortunately found it equally unpersuasive.
The continuing violations doctrine is an exception to the statute of limitations that allows a plaintiff to recover for acts which if treated individually would be time-barred by treating them as either a pattern of violations or a single violation. At its core, the doctrine is fairly simple, where a defendant’s conduct is deemed to be continuing in nature, the court can toll the statute of limitations. For instance, in the case of an environmental tort, the continuing violations doctrine considers each day an illegal dump site remains a new and separate act. And as long as one of those related acts falls within the limitations period, plaintiff’s claim is not time barred. The doctrine is also often used in employment discrimination cases where the discriminatory or harassing conduct occurs over a significant period of time.
But in a pharmaceutical products liability case? That is what plaintiff argued in a case dismissed as barred by the statute of limitations in In re Mirapex Products Liability Litigation, 2019 U.S. App. LEXIS 849 (8th Cir. Jan. 10, 2019). Mirapex is a drug used to treat Parkinson’s disease. Plaintiff alleged that he suffered gambling and other financial losses as a result of developing obsessive compulsive disorder from taking the drug. Id. at *1. Plaintiff started taking Mirapex in January 2006 and started reporting compulsive behaviors to his prescriber in January and April 2008. At which time, his prescriber discussed the association between Mirapex and such behaviors and recommended cutting back on plaintiff’s dosage, which plaintiff resisted. Plaintiff continued taking the drug until July 2010. Plaintiff filed suit in December 2010. Id. at *2-3.
Plaintiff’s claims were governed by California’s two-year statute of limitations. It was undisputed that plaintiff’s claims initially accrued no later than April 2008. Id. at *4. So, without a tolling or other exception, the claims would be time barred. Plaintiff made two arguments to overcome the limitations period. His first argument was that the limitations period was tolled due to insanity. The argument is very fact sensitive and tied to the allegations that the drug caused behavior that caused plaintiff to be financially irresponsible and unable to understand the nature of his actions. We aren’t going to go through the details of this argument, but suffice it to say that since at the time his claims accrued plaintiff was a full-time college professor and chair of his department who earned extra income from numerous speaking engagements, owned and operated two rental properties, and who had never been treated for mental illness or any psychological disorder – the court found he was not insane under California law. Id. at *7-10.
That brings us to plaintiff’s continuing violation theory. Plaintiff alleged that each ingestion of the drug was a separate and distinct claim. In fact, 5,000 separate and distinct claims from January 2006 to July 2010. Id. at *10. Under plaintiff’s theory, he would be able to sue for damages caused by each ingestion within 2 years of December 2010 regardless of when his claim first accrued. The court noted that under federal law, the “critical question” in determining whether there has been a continuing violation “is whether a present violation exists.” Id. at *11 (citation omitted). And there’s the rub. Plaintiff’s claims are based on an alleged failure to adequately warn him of the side effects of Mirapex. That failure to warn is a “single wrongdoing” that accrued when his prescriber advised him of the relationship between compulsive behavior and the medication. Id. at *11-12. A new failure to warn cause of action did not arise with every pill plaintiff took. As the court noted, because the drug was FDA-approved for the treatment of Parkinson’s disease and prescribed for that purpose, “the wrongdoing isn’t taking the pill.” Id. at *12. While his alleged injuries continued as a result of his voluntarily continuing to take the drug, his earlier gambling losses were “appreciable and actual harm” that triggered the running of the statute of limitations.
If each ingestion was considered a separate act triggering a new limitations period, the continuing violations doctrine could essentially swallow the statute of limitations in prescription drug litigation. And since we can’t conceive of any other outcome for this argument, we hope this is the second and last time we need to address this issue.