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Sometimes bench-bar conferences are actually useful.  Last week we wrote a post about a district court’s application of the New York statute of limitations to shut down a product liability lawsuit.  The key holding was that the statute of limitations began to run as soon as the plaintiff experienced relevant symptoms.  There was no need to wait for a medical diagnosis or, even worse, a plaintiff lawyer ‘diagnosis.’  Shortly after our post was unleashed upon the general populace, a fellow defense hack bumped into one of our fellow bloggers at a conference and mentioned that they had recently won on a similar issue – except their victory was before the Second Circuit.  How’s that for one-upmanship? The case is Rouviere v. Howmedica Osteonics Corp., et al., 2024 U.S. App. LEXIS 8201, 2024 WL 1478577 (2d Cir. April 5, 2024).  It is a summary order, meaning it has no precedential effect.  But it can still be cited and discussed, and that’s what we are doing today. (Rouviere has been a long and storied litigation. We have recited parts of that story here (Zoom depositions during Covid), here (turncoat experts), and here (reflections on Rambo litigation).

The plaintiff, proceeding pro se on appeal, had filed a lawsuit against two medical device companies in 2018. She claimed that she suffered complications from her hip replacement in 2012 after parts made by the defendants allegedly impinged upon one another and eventually caused a wide variety of issues, including metallosis.  The court helpfully explained what metallosis is, but we won’t.  From the name alone, you can assume that metallosis is not something you’d want. 

The causes of action sounded in product liability and breach of warranty.  The defendants prevailed on their motion for summary judgment on various grounds, including statutes of limitations.  The Second Circuit reviewed the decision granting summary judgment de novo. The Second Circuit also observed that pro se pleadings are “liberally construed” to raise the strongest arguments they suggest.  That observation might signal a bad result for the defense, but it doesn’t here. It turns out that the strongest arguments even possibly raised by the plaintiff were not strong enough. 

The appellate court affirmed the district court’s summary judgement in favor of the defense on statute of limitations grounds. The record revealed no genuine issue of material fact that the relevant symptoms began before May 2015. That timing turned out to be fatal for the plaintiff’s claims.  

The parties agreed that a four-year statute of limitations applied to the warranty claims, pursuant to N.Y. U.C.C section 2-725. A breach of warranty claim accrues “when tender of delivery is made” — regardless of “the aggrieved party’s lack of knowledge of the breach.”  There is no provision in the UCC for an extension of the limitations period based on tardy discovery of the alleged breach.  Accordingly, the plaintiff’s claims for breach of warranty were time-barred because they accrued, at the latest, on the date of her surgery (that is the latest date when the medical device could have been “tendered”) in 2012. Now for a little pseudo math: (2018-2012 > 4) = dismissal. 

The analysis for the product liability claim was slightly different, but equally dispositive. First, the limitations period for product liability is only three years, as opposed to the four years for warranty claims. Second, for purposes of the appeal, the Second Circuit assumed, without deciding, that the product liability claim was governed by the New York statute applying to toxic torts.  If you read our post last week, you know that such an assumption does the plaintiff a big favor because the statute of limitations for toxic torts postpones accrual until the plaintiff “discovers the primary condition on which the claim is based”. In last week’s case, the court held that the toxic tort did not apply because there was no latency issue, so the plaintiff was stuck with a statute of limitations that cut no slack for late discovery. 

By contrast, the Second Circuit in Rouviere  did cut such slack for the plaintiff, or at least concluded that such slack would do the plaintiff no good.  Why?  There is a huge difference between  the plaintiff’s recognition that she is suffering from a certain condition (which is what triggers accrual) vs. when “the connection between the symptoms and the injured’s exposure to a toxic substance is recognized” (which is the position every enterprising plaintiff lawyer will urge). Importantly, the Second Circuit rejected the plaintiff position and held that accrual does not depend “on the medical sophistication of the individual plaintiff [or] the diagnostic acuity of his or her chosen physician.”  Good reasoning and good turn of phrase.  

Third, even assuming application of the more plaintiff-friendly statute of limitations provision that bends time to await discovery of the injury, the plaintiff’s product liability claim in Rouviere was time-barred because there was no genuine dispute of material fact that she discovered the “manifestations or symptoms” of her injury from the hip replacement procedure more than three years before she filed suit in 2018. The plaintiff did not dispute that she experienced the relevant symptoms from 2012 to 2014. (The court does not tell us directly, but we are pretty sure that the defense lawyers did a nice job in discovery to nail this fact down.) The plaintiff connected those symptoms to her hip replacement in her amended complaint. Oops.  (We teach a litigation strategy class at the University of Pennsylvania Law School. In the second session of the class, we spend some time discussing the tension between telling a really good story in your complaint and pleading yourself into dismissal.) Even if, as the plaintiff argued on appeal, she did not subjectively identify the impingement of the hip replacement products as the cause of her symptoms before her revision surgery in 2016, that medical ignorance would not prevent her claim from accruing. 

Usually the last resort of a tort plaintiff trying to stave off the statute of limitations is a demand for equitable estoppel or tolling based on some alleged misconduct by the plaintiff. Rouviere follows this pattern. The plaintiff pointed to the defendants’ alleged concealment of the defectiveness of their products (that would be an exception swallowing up the statute of limitations entirely) and their alleged misrepresentations to the FDA about the safety of their products (you probably thought of Buckman before you read these words, right?). 

The Second Circuit rejected these bases for equitable estoppel/tolling.  First, the plaintiff was simply replaying her product liability failure to warn claims (which, again, is why we suggested that it would be an exception that would make the statute of limitations disappear in virtually every product liability case). Second, the plaintiff failed to explain what “subsequent and specific action” the defendants took, beyond their initial alleged omissions and representations about the safety of their products, to prevent the plaintiff from timely suing. None of the allegedly fraudulent actions involved the plaintiff. She did not show that either plaintiff misrepresented the appropriate statute of limitations or sought to prevent her lawsuit after she began to experience symptoms from her hip replacement procedure.  Further, the plaintiff did not show that she did not file her case within the statute of limitations because she reasonably relied on the defendants’ alleged misrepresentations to the FDA. 

We are grateful to Paul Asfendis (Gibbons P.C.) for alerting us to the Rouviere decision, and we congratulate Paul and his partner, Kim Catullo, for attaining such a fine result.  As always, we welcome news and suggestions from our readers.