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A complaint is a plaintiff’s opening argument.  It has to contain enough substance to get plaintiff out of the gate.  Plaintiff doesn’t have to necessarily prove anything in his complaint, but he has to have factual support to back up what he hopes to prove.  Logically, any fact added to a complaint is intended to make plaintiff’s case stronger.  The goal in adding any particular fact is to raise the credibility of the target conclusion – such as plaintiff was injured and that injury was caused by something defendant did wrong.  But sometimes facts backfire.  That’s what happened in In re Smith & Nephew Birmingham Hip Resurfacing (BHR) Hip Implant Products Liability Litigation, 2019 U.S. Dist. LEXIS 179691 (D. Md. Oct. 16, 2019).

Defendant had moved to dismiss several plaintiffs’ claims as barred by the statute of limitations arguing that their causes of action accrued no later than the date of their revision surgeries which took place more than two years before they filed their lawsuits.  For California plaintiffs, the court determined that the discovery rule might save their claims and afforded them an opportunity to amend their complaints to plead facts regarding the discovery of their injuries.  Id. at *64.  In their amended complaints, the California plaintiffs argued that they did not have notice that the defendant’s device caused their injuries until the product was recalled.  Plaintiffs also pleaded that they each contacted an attorney about potential legal claims around the time of their revision surgeries – before the recall – but those attorneys advised that they were not investigating BHR devices.  Id. at *64-65.  Plaintiffs’ intent in including this second fact was to support an argument that the attorneys’ “not interested” responses tolled the statute of limitations.  What they really did was plead themselves directly into a statute of limitations defense.

Under California law, the discovery rule provides that the statute begins to run when “the plaintiff learns, or should have learned, the facts essential to his claim.”  Id. at *67.  That happens when a plaintiff has suffered “appreciable harm” and knows or suspects defendant may be responsible.  Id. at *67-68.  There was no question that plaintiffs knew they had “appreciable harm” by the time of their revision surgeries.  Moreover, at that time they at least suspected that defendant may bear some responsibility because they consulted attorneys.  The response of those attorneys is of no consequence.  It certainly doesn’t toll the statute.  “Even discouraging advice from an attorney does not extend the limitations period.”  Id. at *69.  To the contrary if each plaintiff was sufficiently suspicious to have contacted an attorney, that in itself was sufficient to commence the running of the statute.  It also didn’t hurt that defendant was already defending lawsuits related to this device at the time plaintiffs consulted attorneys.  Id.

So, at least in California, contacting an attorney about potential claims demonstrates sufficient knowledge, or suspicion, of a potential cause of action to trigger the limitations period.  Plaintiffs had two years from those consults to continue investigating their claims and bring suit.  Because they didn’t, the court dismissed their suits with prejudice.