We start with a disclaimer:  The following metaphorical exercise is somewhat forced, but we are doing it anyway.  If you are like us, then you are a few months in on a pattern of only buying groceries every week or so, perhaps supplemented by bulk deliveries of meat or seafood that you may need to fit into the rotation of meals prepared at home.  Whether you plan out your meals before you make your main weekly purchase, you wing it, or fit in somewhere in between, you try to minimize waste.  You look at “sell by” dates, “best before” dates, and “eat before this date or you will be violently ill” in making preliminary judgments, but the eyes and nose—the old smell test—play an even bigger role.  You may be able to pick out some rusty lettuce from a bag of salad and use the rest, but gray, funky ground beef is going straight into the garbage no matter what date is on the package.  (Why both of these items seem to stay fresh for less time than they did five months ago is a whole different kettle of fish.)  Depending on your time and tolerance, there may be some other food items you can salvage rather than toss based on how you trim and/or prepare them.

Late-filed lawsuits can get tossed based on either a statute of limitations or a statute of repose, but they operate differently.  Statutes of limitations run from date of accrual, are shorter, and have a bunch of potential exceptions that can be used to a save a case that was filed after the apparent date of accrual plus the limitations period.  Statutes of repose run from the date of the act or omission (e.g., sale), are longer, and have few, if any, recognized exceptions to keep a case from getting tossed.  When a state legislature has declined to include any exceptions with a statute of repose, a conscious decision has been made that the application of the statute may result in some seemingly harsh outcomes, a fact that courts sometimes note in throwing out a case while redirecting any indignation toward the legislature.  (Our old case discussed here comes to mind.)

Statutes of repose, with their later “file by dates” and less wiggle room, can be powerful tools.  We have posted on them more than a few times, including a relatively recent survey of the law across the country.  Today’s case comes from the heart of it all, Ohio, and involves the statute of repose for medical malpractice actions.  While the four-year statute of repose for such cases is much shorter than the ten year statute in Ohio for product liability actions, many of the same principles apply.  That is why we thought Jonas v. Durrani, Nos. C-180457-58, 2020 Ohio App.  LEXIS 21715 (Ohio Ct. App. July 22, 2020), was worth discussing.  We do not often post on decisions from intermediate state appellate courts, but Jonas appears to be one of at least four decisions from the same court relating to cases against the same physician, at least one of which going up to the Ohio Supreme Court.  In addition, we know that lots of smoke does not always mean there is fire, but the physician fled the country and lost his medical license, making us think that cases against him would have been pretty juicy if they survived repose.

Jonas actually had two cases consolidated on appeal with somewhat different facts, which are pared down a bit here.  The Jonas plaintiff had 2008 back surgery and sued the surgeon, his practice, and hospital #1 in 2014.  She then dismissed and refiled in 2015, adding a second hospital and a range of claims.  The Carr plaintiff had surgeries in 2005, 2007, and 2010 performed by the same surgeon, sued him, his practice, and hospital #2 in 2013, dismissed in 2015, and refiled in 2015 against the same defendants.  Both cases were dismissed on statute of repose and had motions for leave denied.  Most of the meat of the decision related to the wide-ranging arguments raised by the Jonas plaintiff.

The Ohio statute of repose runs from “the occurrence of the act or omission constituting the alleged basis of the medical . . . claim.”  For the Jonas plaintiff, it was clear that the 2008 surgery was the act at issue and her suit was brought more than four years later.  The first attempt was to cast her claims for fraud and negligent credentialing as nonmedical.  Other appeals with this same surgeon as a defendant had already largely addressed this argument.  For instance, “simply placing a ‘fraud’ label on a claim cannot side-step the statute of repose.”  Id. at *7.  Next up was the argument that the court should create an equitable estoppel or fraud exception not included in the actual statute or supported by the legislative record.

Where the General Assembly could have included an equitable estoppel or fraud exception (as some other states have done), but declined to do so, our job is not to supplant that authority, but rather to apply the statute as written.

Id. at *9.  Then plaintiff tried to say that the savings clause—remember, her case was re-filed after voluntary dismissal—saves a case that was originally filed late.  Nah.

Plaintiff also went backwards and argued that the act starting the statute was really something other than the surgery, but “we see no allegations of a later separate act or omission that would enable us to stretch the starting line for the statute of repose period.”  Id. at *11.  The faucet from the proverbial kitchen sink came next with claims that some sort of tolling should apply because of the surgeon’s 2013 flight and 2014 loss of licensure, but her claim was barred in 2012 so the court did not need to decide whether to make new law.

The stopper from that sink came in the way of the old “foreign object” exception, which Ohio has added to both its statute of limitations and statute of repose for medical malpractice actions.  The argument was that the device implanted in connection with the 2008 surgery triggered the exception.  The exception is really intended to cover someone unintentionally left in the body during a surgery—like a sponge—not something intentionally left in—like the device the operative note talked about implanting.  If this analysis sounds familiar, then you might be thinking of this post from March that discussed a Utah decision that Jonas relied on in reaching the same conclusion.

To adopt [plaintiff’s] position would be to expand the ‘foreign objects’ exception and render every medical device case a potential candidate for a longer repose period.  A plaintiff could, by challenging the medical reasoning of the doctor or the effectiveness of the consent, circumvent the repose period.  That would frustrate, rather than further, the intent of the General Assembly.

Id. at *18.  The only thing left for the Jonas plaintiff—the pipe below the stopper in the sink, we guess—was to say she should have been allowed to flesh out her allegations, but this was pointless because all her additional allegations related to the surgery that triggered the repose period.  Id. at *20.

The Carr plaintiff’s arguments were much more direct.  He sued within four years of his third surgery, so his claims based on that third surgery against the defendants involved in it could proceed.  Id. at *22.  The rest were barred (and not resurrected based on a later surgery).  He also did not get to amend his complaint because he wanted to add a claim under the state RICO statute and that required allegations about a criminal enterprise that he did not make.  Id. at **22-24.

While the surgeon, and perhaps other defendants, may have had liability, all the medical malpractice claims from these plaintiffs had they been brought in the timely fashion, we do appreciate the enforcement of the legislature’s intent to bar claims brought outside of the statute of repose.  That does not always happen, but letting older and older claims proceed can end up creating a number of problems that are hard to swallow.

 

We just saw a commercial with the tag line, “Life is messy. Clean it up.”  It’s true – life is messy, sometimes gloriously so.   Rules get broken, scripts get torn up, best-laid plans are tossed aside by the winds of fortune. That’s why we like statutes of repose. They are bulwarks in a system in which statutes of limitations too often fall prey to “spun” facts and passive judges. Today’s tidy decision, Brown v. Exactech, Inc., 2019 WL 1369438 (E.D. Tenn. Mar. 26, 2019), underscores this distinction.

As the Brown court explained, the difference between a statute of limitations and a statute of repose is that “a statute of limitations applies when a cause of action has accrued, while a statute of repose applies to an[y] action which may accrue, should an injury occur in the future. Brown, 2019 WL 1369438 at *2.   A statute of repose sets a cutoff date, typically running from the date of sale of a product, by which suit must be filed or be barred forever. The timing of a claimed injury and the construction of a discovery rule have no relevance in the statute of repose context. In other words, “while statutes of limitations operate procedurally to bar the enforcement of a right, a statute of repose takes away the right altogether, creating a substantive right to be free of liability after a specified time.” Id. (citations omitted).  You can read our 50-state overview of statutes of repose here.  Texas, the law of which applied to Brown, applies a fifteen-year statute of repose in product liability cases.

The plaintiff in Brown underwent hip replacement with the defendant’s prosthetic femoral stem. After nearly (but not quite) fifteen problem-free years, the femoral stem broke. By the time the plaintiff filed his complaint, fifteen months later, more than fifteen years had elapsed since the implant surgery. The defendant moved for summary judgment on the ground that the suit was time-barred under Texas’s statute of repose. In response, the plaintiff argued that the case fell within one of two exceptions Texas recognizes to the absolute bar erected by the statute of repose.

Express Warranty

As the Brown court explained, “[f]irst, the statute of repose will not apply when the manufacturer or seller has expressly warranted, in writing, that the product has a useful safe life of longer than fifteen years.” As the plaintiff conceded that implanting doctor could not remember an express warranty from the defendant. But the doctor executed an affidavit in which he stated that he “would have advised the patient of an expected 15-20 year life span of the implant” and would have provided the advice “orally and/or in writing.” Id. at *3. The plaintiff argued that this amounted to an express warranty that the femoral head had a useful, safe life of longer than fifteen years.

The court disagreed. First, as the court explained, a doctor is not a “manufacturer” or “seller” under Texas law. So, “even if [the doctor] had expressly warranted the product in writing, his warranty would be legally ineffective.” Id. Moreover, literature produced by the defendant suggesting that the product would last fifteen to twenty years and “indirectly” informing doctors that the product has this “life expectancy” is, at best, an “indirect” warranty and not the express warranty the statue requires.

Latent Disease

The second exception, the “latent disease exception,” injects a whiff of discovery rule into the otherwise airtight repose framework. It applies when the plaintiff was exposed to the product that is the subject of the action within 15 years after the date the product was first sold, but the symptoms of the plaintiff’s injury did not, before the end of fifteen years after the date of sale of the product, “manifest themselves to a degree and for a duration that would put a reasonable person on notice that the person suffered some injury.” Id. at *4 (citation to statute omitted). The plaintiff argued that he fit within this exception because he received his femoral stem implant within fifteen years after the product was sold and it caused his injury at a later date. (If this doesn’t make any sense to you, you are not alone. We still are not sure what the plaintiff meant.) The defendant argued that the exception did not contemplate an acute, traumatic injury like the plaintiff’s; rather, “it should only apply when there is a slow, insidious progression of a latent disease.” Id.

The court agreed with the defendant, explaining, “Medical device failures are not the prototypical latent injury situation.” To adopt the plaintiff’s interpretation “would create an exception that swallows the rule.” The court continued, “This is likely not the first case where a medical device manufacturer has sold a product to a doctor who immediately uses it for a joint replacement, and the product (unfortunately) fails many years down the line. Indeed, one could assume that in most cases, there is a temporal separation between exposure to a defective medical device and its failure. If the Court were to rule that Plaintiff could claim the benefit of [the latent disease exception], it would effectively create a “medical device exception” for an otherwise strict statute of repose. There is no evidence the Texas legislature intended this outcome.”  Id. at *6. Moreover (and this seems to us to be the only necessary part of the analysis), the plaintiff admitted that his symptoms were apparent as soon as the femoral stem broke, which was less than fifteen years after implant, yet he did not file until more than a year later. By definition, as the court acknowledged, the latent disease exception did not apply to these facts.

Finally, the court rejected the plaintiff’s arguments that the statute of repose: 1) was invalid under the Texas Constitution’s “open courts” provision; 2) violated the concept of “fundamental fairness” protected by the Texas and U.S. constitutions; and 3) violated public policy by allowing “intentional” wrongdoers to take advantage of the statute. Holding that the statute of repose barred the plaintiff’s claims, the court dismissed the suit with prejudice.

The last time we blogged about a statute of repose decision, we got an angry letter (from guess which side of the bar) stomping and screaming about fairness. Just as life is messy, it’s not always fair. And we don’t think subjecting our manufacturer clients to perpetual liability is fair, either. We like statutes of repose. We like this case. And we’ll keep you posted on similar decisions.

 

We just returned from a four-night cruise that included a stop in Havana, Cuba.  We won’t bore you with too many details about the dinner tablemate who proclaimed, “Let’s kill all the lawyers,” when we told her what we do for a living.  And who commented, when we talked about an onboard trivia contest, “Well, cheating is in your DNA, since you are a lawyer.”  But we will tell you that there was something magical about Havana.  We toured the city in a cherry-red and white 1956 Chevy Bel Air.   We walked, on a gorgeous sunny day, through cobblestone streets framed by buildings unchanged for hundreds of years.  Change is now afoot, but its imprint is spreading slowly.  For now, large portions of the city appear frozen in time.

But time does not stand still in litigation.  Back in the summer, we published a guest post that included a 50-state survey of statutes of repose, those statutes that cut off the right to file suit a prescribed number of years after a product was manufactured or sold, regardless of whether a plaintiff’s cause of action has accrued when the repose period expires.  Today’s case, Nunn v. Biomet, Inc., 2018 U.S. Dist. LEXIS 215395 (N.D. Ind. Dec. 21, 2018), involves Indiana’s statute of repose.

In Nunn, the plaintiff filed suit in the Biomet hip implant MDL pending in the Northern District of Indiana.  The plaintiff’s claims accrued in Nebraska, so Nebraska law applied.  Nebraska product liability law borrows the statute of repose of the state in which the product was manufactured – in this case, Indiana.  Indiana’s statute requires suits to be filed within ten years after the product is delivered to the ultimate user.   The plaintiff’s artificial hip joint was implanted on March 8, 2004.  The plaintiff did not file her complaint until April 15, 2014, just over a month after the repose period expired.  The defendant moved for summary judgment, arguing that the statute of repose barred the plaintiff’s claims.  The plaintiff responded that her claims were tolled by the defendant’s fraudulent concealment of facts related to the prosthetic hip.

The court explained that, to survive summary judgment, the plaintiff was required to point to evidence supporting her fraudulent concealment claim.  The only exhibit attached to the plaintiff’s brief was a 2006 communication in which the defendant informed surgeons about the possibility of unknown side effects caused by metal-on-metal articulating surfaces of the defendant’s artificial hip devices.  But, the court held, “[N]either this statement, or [sic] any other statement that Ms. Nunn refers to, is accompanied by anything that would allow a reasonable trier of fact to find that it (or any other statement) caused her to delay filing suit.”  Nunn, 2018 U.S. Dist. LEXIS 215395 at *6-7.   Duh.  And because the record did not allow a finding that any concealment by the defendant induced any delay in the plaintiff’s filing of her complaint, there was no tolling, and the defendant’s motion was granted.

Short and sweet (like our cruise) and unassailable (unlike our tablemate).  We like this tidy little decision, and will keep you posted on others like it.

What follows is a rather involved guest post by Reed Smith‘s Kevin Hara.  Actually, Kevin has contributed enough to the Blog over the last couple of years that he’s more of a crypto-blogger than a guest.  Instead of the more common case-specific post, Kevin has put together his own 50-state survey on state statutes of repose.  A lot of states have a variety of different statutes of repose.  Some of these statutes (such as those based on useful life) can be useful in prescription medical product liability litigation, others (like those involving fixtures to real property) – not so much.  Anyway, in this guest post Kevin endeavors to sort things out on a nationwide basis.  As always our guest bloggers deserve 100% of the credit, and any blame, for their work.

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Although this relatively recent Law360 article discussed statutes of repose, this powerful affirmative defense remains underutilized, so this post revisits it and digs a little deeper.  This defense, where applicable, provides a potentially swift conclusion to an action with accompanying cost savings for the client.  Further, defense counsel may move to dismiss at the pleading stage, where the applicability of the defense is apparent from the complaint.  Many courts view statutes of repose as substantive, rather than procedural, unlike statutes of limitation – so the plaintiff cannot escape by becoming a litigation tourist.

The state of Tennessee’s statute of repose serves as a perfect example of a bright line application in a prescription product liability action, regardless of a plaintiff’s knowledge wherein “a delay, even without knowledge of the hazard involved in the delay, may preclude the bringing of an otherwise meritorious claim.”  Montgomery v. Wyeth, 580 F.3d 455, 463, 466 (6th Cir. 2009) (applying Tennessee law).  Tennessee courts have explained this rule succinctly:

A statute of limitations governs the time within which suit may be brought once a cause of action accrued. A statute of repose limits the time within which an action may be brought, but it is entirely unrelated to the accrual of a cause of action and can, in fact, bar a cause of action before it has accrued.

Jones v. Methodist Healthcare, 83 S.W. 3d 739, 744 (Tenn. App. 2001) (emphasis added).

The Texas Supreme Court provided a thoughtful analysis of that state’s clear-cut statute of repose:

Indeed, the key purpose of a repose statute is to eliminate uncertainties under the related statute of limitations and to create a final deadline for filing suit that is not subject to any exceptions, except perhaps those clear exceptions in the statute itself.  In recognizing the absolute nature of a statute of repose, we have explained that while statutes of limitations operate procedurally to bar the enforcement of a right, a statute of repose takes away the right altogether, creating a substantive right to be free of liability after a specified time.  The whole point of layering a statute of repose over the statute of limitations is to fix an outer limit beyond which no action can be maintained.  One practical upside of curbing open-ended exposure is to prevent defendants from answering claims where evidence may prove elusive due to unavailable witnesses (perhaps deceased), faded memories, lost or destroyed records, and institutions that no longer exist.

Methodist Healthcare Sys. of San Antonio v. Rankin, 307 S.W.3d 283, 286-87  (Tex. 2010 ) (internal citations and marks omitted) (emphasis added)

The Tennessee and Texas statutes of repose are elegant in their simplicity:  you are either in, or you’re out.  Period.  No ifs, ands, or buts.  Iowa, Connecticut, and North Carolina are a few of the states with similarly straightforward statutes of repose.  However, perhaps because they are so unyielding – and unlike statutes of limitation, the vast majority of which are subject to the discovery rule – statutes of repose are often more limited in scope, and therefore not uniformly applicable to manufacturers of prescription medical products.

That said, statutes of repose add a significant item to any defense practitioner’s toolbox because they can take a case, and simply “nip it in the bud,” a common expression that is illustrative here.  Indeed, it is a phrase that sometimes gets mixed up, such as with the malapropism “nip it in the butt,” which got us to thinking about something else that often leads to confusion: music.  All too often, people misapprehend the words to a song, and there are a multitude of websites with compilations of some of the more notable – and incidentally, most humorous – misheard song lyrics, including Mentalfloss , Huffington Post, and New Musical Express, but here are some of the best.  Perhaps the most famous example is the Jimi Hendrix classic “Purple Haze,” with famous phrase “Excuse me while I kiss the sky,” interpreted erroneously as: “Excuse me while I kiss this guy.”

Who can forget the San Francisco Bay Area’s own all-time great rock band Creedence Clearwater Revival’s song “Bad Moon Rising,” with part of the chorus, “There’s a bad moon on the rise,” replaced with “There’s a bathroom on the right.”  (In fact, this error became prominent that front man John Fogerty was known to purposefully sing that rendition and gesture to the proverbial restroom.)  Another prime example is the upbeat Johnny Nash song “I Can See Clearly Now,” with the line from the refrain “I can see clearly now, the rain is gone,” somehow thought to be: “I can see clearly now, Lorraine is gone.”  It would be remiss not to mention The Monkees, and their hit “I’m A Believer,” with the eternally ecstatic line, “Then I saw her face, now I’m a believer!” instead substituted with the diametrically opposed – and frankly cruel, but evocative – “Then I saw her face, now I’m gonna leave her!”

Bexis pointed out that one could interpret the chorus of British band ELO’s chart topper “Evil Woman,” “Evil woman,” as “You need a woman.”  He also misunderstood for years (until the advent of lyrics services on the Internet) the line in Steppenwolf’sFrom Here To There Eventually” as “cause benign, rather than “caused by man.”

These faux pas are fitting metaphors for failing to comprehend the importance of statutes of repose.  While it is easy enough to have a chuckle when a friend butchers a line in a favorite song, failing to seize an opportunity to secure a dismissal with prejudice is no laughing matter.  Defense counsel should thoroughly consider and explore all possible options for resolving a case quickly in the name of expediency and client satisfaction.

To assist with those aims, here is a rundown of the applicable statutes of repose for all 50 jurisdictions, including discussions of which states apply the discovery rule, which utilize presumptions rather than complete defenses, and other subtle variations, beginning with those states whose statutes are most likely to apply to prescription product claims.

States With Statutes That Are Applicable To Prescription Product Liability Claims

 Alabama – Alabama applies a unique, common law, 20 year rule of repose which “arose within the context of property disputes,” but according to the Alabama Supreme Court “the rationale underlying the rule is not so limited and, accordingly, the rule has been applied in other contexts, including those alleging tort claims.”  Ex parte Liberty National Life Insurance Co., 825 So. 2d 758, 763-64 (Ala. 2002); see also Owens-Illinois, Inc. v. Wells, 50 So.3d 413, 420 (Ala. 2010) (ruling that “Alabama’s 20-year common-law rule of repose does not begin to run on a claim until all the essential elements of that claim, including an injury, coexist so that the plaintiff could validly file an action”).

Colorado – Col. Rev. Stat. § 13-21-403(3).  Applies a presumption of non-defectiveness more than “[t]en years after a product is first sold.”  See Mile Hi Concrete, Inc. v. Matz, 842 P.2d 198, 205 (Colo. 1992).

Connecticut – Conn. Gen. Stat. § 52-577a.  An action is foreclosed “more than 10 years after the manufacturer relinquished “possession or control of the product,” absent fraud or express warranty.

Florida – Fla. Stat. § 95.031(b).  A products liability action is barred “more than 12 years after delivery of the product,” with exceptions for latent disease or injury, and fraudulent concealment.

Georgia – O.C.G.A. § 51-1-11(b)(2).  Precludes any action “after ten years from the date of the first sale for use or consumption” of a product that causes injury.

Idaho – Idaho Code § 6-1403(b).  Rebuttable presumption that injury “caused more than ten (10) years after time of delivery” occurred after product’s safe life, rebuttable “by clear and convincing evidence.”

Illinois – 735 ILCS 5/13-213(b).  Forbids any “product liability action” on any theory after 12 years from the first sale or 10 years after the purchase by an initial consumer, unless brought within two years of discovery of alleged injuries.   Davis v. Toshiba Mach. Co., 710 N.E. 2d 399, 401 (Ill. 1999) (weakening statute of repose by allowing discovery rule in cases not involving latent injuries).

Indiana – Ind. Code § 34-20-3-1(b).  Action must commence within “10 years after delivery of the product to initial user,” but may be brought within two years after accrual. See, e.g., Land v. Yamaha Motor Corp., 272 F.3d 514, 515-516 (7th Cir.2001) (ruling that where it was “undisputed” that injury and filing suit occurred more than 10 years after product purchase by initial user, statute of repose barred product liability action.) (emphasis added).

Iowa – Iowa Code § 614.1(b). Bars product liability action on any theory 15 years after purchase of a product absent express warranty or concealment. See Albrecht v. GMC, 648 N.W.2d 87, 95 (Iowa 2002) (the “allegations of the petition establish[ed] that the present suit falls with the scope of section 614.1(2A)(a) and was brought more than fifteen years after the product in question was first purchased,” precluding plaintiff’s action); Cf. Merner v. Deere & Co., 176 F. Supp.2d 882, (E.D. Wis. December 18, 2001) (under Wisconsin’s borrowing statute that 15 year Iowa statute of repose barred plaintiff’s claims).

Kansas – Kan. Stat. Ann. § 60-3303(a)(b)(1).  A presumption arises that a product’s “useful safe life,” expires 10 years after delivery, rebuttable by “clear and convincing” evidence; see also Kan. Stat. Ann. § 60-513(b), barring claims more than 10 years old.  The useful safe life statute of repose applies to prescription drugs.  Baughn v. Eli Lilly & Co., 356 F. Supp. 2d 1166, 1172 (D. Kan. 2005).  In Ehrenfelt v. Janssen Pharms., ___ F. Appx. ___, 2018 WL 2945911 (6th Cir. June 11, 2018), a prescription drug product liability case, the Court of Appeals for the Sixth Circuit held “that the exceptions in Kan. Stat. Ann. § 60-3303(b)(2)(D) [for latent injuries] appl[ied] even when the harm was caused less than ten years after delivery.”   Id. at *2.  Therefore, the plaintiff’s claims for alleged injuries from use of a drug was not barred under the general 10 year statute of repose, § 60-513(b).

Kentucky –  K.R.S § 411.310(1).  Presumption that a product was not defective for injury “more than five (5) years after the date of sale . . . or more than eight” years after manufacture, rebuttable by a preponderance of evidence.

Michigan – Mich. Comp. Laws § 600.5805(13).  Technically not a statute of repose, but after a product has “been in use for not less than 10 years,” the plaintiff is not entitled to any presumption improving his case.  But see Hall v. GMC, 582 N.W.2d 866, 867 (Mich. App. 1998) (“claim could be pursued under Michigan law, which has no statute of repose,” and where statute of limitations did not prevent claim).

Minnesota – Minn. Stat. § 604.03.  Provides an affirmative defense for injuries occurring after “the expiration of the ordinary useful life of the product,” which is a jury issue.   Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826, 830 (Minn. 1988) (“We hold, therefore, that … [product’s useful life] is a factor to be weighed by the jury in determining the fault of the manufacturer and the fault of the user.”).

Nebraska – Neb. Rev. Stat. § 25-225.  Bars claims filed more than 10 years after product manufactured in Nebraska, otherwise the statute of repose of the state of manufacture applies, not to exceed 10 years, or 4 years from date of injury if no statute exists, applicable to prescription products.  King v. Pfizer, Inc., 2016 U.S. Dist. Lexis 111456, 17-18 (D. Neb. Aug. 19, 2016) (fraud based claims for injuries allegedly resulting from prescription drug are “grounded in product liability,” such that the substantive right of the statute of repose cannot be removed “by court action,” whereby passage of the 10-year period, following  plaintiff’s first prescription “vested the Defendants with a substantive right under § 25-224(2),” barring the action).

North Carolina – N.C. Gen. Stat. § 1-46.1.  Prohibits product liability claims “more than 12 years after . . . initial purchase for use or consumption.”  See Willoughby v. Johnston Memorial Hosp. Authority, 2016 WL 4091370, at * 13-14, 791 S.E.2d 283 (table) (N.C. App. Aug. 2, 2016) (affirming summary judgment for manufacturer of surgical table, including indemnity claim, notwithstanding that alleged injuries occurred in 2009, and actual loss in 2015); In re Mentor Corp. Obtape Transobturator Sling Prods. Liab. Litig., 2016 WL 4385846, at *3 (M.D. Ga. Aug. 15, 2016) (applying North Carolina law) (plaintiff suffered alleged injuries when she experienced mesh erosion, which foreclosed claims per statute of repose).

Ohio – Ohio Rev. Code § 2305.10(C)(1).  Precludes claims more than 10 years after product delivery to first consumer, but applies discovery rule to prescription drugs, which reduces the provision’s utility.

Oregon – Or. Rev. Stat. § 30.905(2).  An action “must be commenced before the later of 10 years after” product’s purchase, or the expiration of the statute of repose in state of manufacture.  Wrongful death actions must be brought within 3 years after death or 10 years after product purchased, whichever occurs sooner.  O.R.S. § 30.905(3)-(4).  Dortch v. A. H. Robins Co., 650 P.2d 1046, 1052-53 (Or. App. 1982), overruled on other grounds, (IUD manufacturer properly dismissed; statute of repose limited “manufacturer’s liability to ten years and [gave] each plaintiff a full two years to commence an action after the cause of action accrue[d],” and finding that the claim was barred.); Philpott v. A.H. Robins Co., 710 F.2d 1422, 1425 (9th Cir. 1983) (plaintiff’s claims “barred by ORS 30.905,” where “she did not learn of a causal connection between her pelvic disorders and the Dalkon Shield until . . . nine years and eight months after she purchased and began using” the product).

Tennessee – Tenn. Code Ann. § 29-28-103(a).  An action must be brought “within ten (10) years” from purchase, or “one (1) year after the expiration” of product life. See, e.g., Jenkins v. Novartis Pharmaceutical Corp., 2013 WL 1760762, at *3 (E.D. Tenn. Apr. 24, 2013) (implied warranty claim against prescription drug manufacturer was prohibited by statute of repose where motion to amend was filed more than 10 years post injury “by both the six-years-from-injury provision of § 29-28-103(a) and the ten-years-from-purchase provision of § 29-28-103(a)).” Tennessee case law bars any discovery rule or fraudulent concealment exception to the statute. Greene v. Brown & Williamson Tobacco Corp., 72 F. Supp.2d 882, 886 (W.D. Tenn. 1999) ( “[a]n equitable ‘discovery rule’ is not available to toll the statute of repose” and holding that “the Tennessee Supreme Court would decline to create an equitable exception for fraudulent concealment”).

Texas – Tex. Code Ann. § 16.102(b) cuts off actions 15 years “after the date of the sale of the product” with exceptions for latent disease and express warranty, but is not subject to tolling.  See Methodist Healthcare System v. Rankin, 307 S.W.3d 283, 290 (Tex. 2010) (“the essential function of all statutes of repose is to abrogate the discovery rule and similar exceptions to the statute of limitations” and a “statute of repose, by design, creates a right to repose where the applicable statute of limitations would be tolled or deferred”); Salgado v. Great Dane Trailers, 2012 WL 401484, at *2 (S.D. Tex. Feb. 6, 2012) (“[a] statute of repose … does not run from the time a cause of action arises, but from some other date or event selected by the Legislature,” and is “not subject to judicially crafted rules of tolling or deferral”) (internal citations and quotations omitted).

Washington – Wash. Rev. Code Ann. § 7.72.060(1)(b)(i-iii).  Rebuttable presumption that an injury “more than twelve years after . . . delivery,” occurred after expiration of a product’s useful life, with exceptions for express warranty, concealment, and latent injuries.

Wisconsin – Wis. Stat. § 895.047(5-6).  Precludes action for products manufactured “15 years . . . or more” before a claim with exceptions for negligence, latent disease, and express warranty, and asbestos actions).

States With Statutes That Are Not Applicable To Prescription Product Claims

By contrast, the following states have statutes of repose that are inapplicable to prescription product liability actions, generally because they have statutes that pertain only to real property improvements or the statutes contain exclusions for defective products.

Alaska – Alaska Stat. § 09.10.055(2).  Actions must be brought “within 10 years,” of the “last act alleged to have caused the personal injury,” property damage, or death, but expressly excludes defective products.

Arkansas – Ark. C. Ann. § 16-56-112.  Applicable to property actions only; Brown v. Overhead Door Corp., 843 F. Supp. 482, 490 (W.D. Ark. 1994) (ruling that statute of repose was limited to real property improvements, holding that “Arkansas courts when called upon to do so will hold that the manufacturers of mass produced fungible goods do not fall within the protection of the statute, particularly when the defendant manufacturer is not involved in the installation of the product and had nothing to do with the design of the improvement within which it is installed”).

California – Cal. Civ. Proc. Code § 337.15 (10 years for latent deficiencies).  See McCann v. Foster Wheeler LLC, 225 P.3d 516, 529 (Cal. 2010) (finding that California’s statute of repose was applicable to latent deficiencies in real property improvement, “not to personal injury actions.”).

Delaware – 10 Del. C. § 8127.  Applicable only to claims pertaining to real property improvements, within six years of substantial completion.

District of Columbia – D.C. Code § 12-310.  Real property claims only, within 10 years of substantial completion of project.

Hawaii – Haw. Rev. Stat. § 657-8.  Available only for claims within 10 years of substantial completion of improvement to real property, and two years after accrual.

Maine – 14 M.R.S.A. § 752-A.  Statute applicable only to real property, within 10 years of the project or services rendered, but no more than 4 years after discovery.

Maryland – Md. Code Ann. § 5-108.  Does not apply to product liability, but for property improvements within 20 years and 10 years against architect or engineer.

Massachusetts – Mass. Ann. Laws Ch. 260 § 2B.  Allows claims within 6 years of substantial completion of improvement, and owner taking possession.

Mississippi – M.C.A. § 15-1-41.  Claims must be brought within 6 years of acceptance or actual occupancy for real property improvement.

Missouri – Mo. Rev. Stat. § 516.097.  Applicable to real property improvement claims within 10 years of substantial completion.

Montana – Mont. Stat. § 27-2-208.  Statute allows claims within 10 years of improvement, including to damage caused by a defective product related to the improvement.

Nevada – N.R.S. § AB 125, § 2.  Applies to real property improvements, six-year statute of repose.

New Jersey – N.J.S.A. § 2A: 14-1.1.  Real property improvements only, within 10 years of substantial completion.

New Mexico – N.M.S.A. § 37-1-27.  Repose only for improvements to real property, 10 years of substantial completion.

New York – While New York has no true statute of repose, courts require notice of an action to any party responsible for professional performance, such as architects and engineers, after 10 years have elapsed.  Six year statute of limitations for construction defects, N.Y. C.P.L.R. § 214-d.

Oklahoma – 12 Okla. Stat. Ann. Tit. 12 § 109.  Claims for real property improvements must be brought within 10 years of substantial improvement.

Pennsylvania – Although the statute of repose, 42 Pa. C.S.A. § 5536(a), is generally applicable only to real property improvements, it may apply to product manufacturers in certain cases, such as to manufacturers of asbestos.  See, e.g., Graver v. Foster Wheeler Corp., 96 A.3d 383, 386-87 (Pa. Super. 2014) (granting j.n.o.v., applying the 12 year statute of repose relating to real property improvements to 13 story boiler in asbestos action because statutes of repose are substantive, and may bar actions before they accrue).

South Carolina – S.C. Code Ann. § 15-3-640.  Must be brought within 8 years of substantial completion of improvement to real property.

South Dakota – S.D.C.L. § 15-2A-3.  Applicable to real property improvements only, within 10 years of substantial completion.

Utah – U.C.A. § 78B-2-225.  Actions for real property improvements may not be brought later than nine years after completion.

Vermont – Vt. Stat. Ann. Tit. 27A, § 4-116(a).  Applicable only to Common Interest Ownership claims within six years after the cause of action arose.

Virginia – Va. St. § 8.01-250.  Claims must be brought within five years for injuries resulting from improvements to real property, but does not apply to manufacturers of equipment.

West Virginia – W. Va. Code § 55-2-6a.  Applies to claims related to real property, construction or design within 10 years of occupancy or acceptance, but excludes product manufacturers.

Wyoming – Wyo. Stat. § 1-3-111.  Applicable only to real property improvements, if a claim is brought within 10 years of substantial improvement.

States In Which Courts Ruled That Statutes Of Repose Were Unconstitutional

New HampshireHeath v. Sears, Roebuck & Co., 464 A.2d 288, 296 (N.H. 1983) (statute of repose unconstitutional where plaintiffs were “deprived arbitrarily of a right” to sue).

North DakotaDickie v. Farmers Union Oil Co., 611 N.W. 2d 168, 173 (N.D. 2000) (product liability statute of repose violated equal protection clause).

Rhode IslandKennedy v. Cumberland Eng’g Co., 471 A.2d 195, 201 (R.I. 1984) (holding that state “Constitution forbids absolute bars to recovery” prior to accrual).

ArizonaHazine v. Montgomery Elevator Co., 861 P. 2d 625, 630 (Ariz. 1993) (holding statute of repose unconstitutional, ruling “A.R.S. § 12-551 abrogated that constitutional right [to bring action] by barring the action even before the injury occurred,” and that “the attempted statutory abrogation of their claim fails.”).

 

Statutes of repose can be a defense counsel’s best friend by providing an inexpensive and decisive avenue for disposal of an action, even before the claims have accrued in certain jurisdictions. However, each state is different, and practitioners need to research potentially relevant provisions thoroughly.  After all, a missed opportunity to end the case before it begins is no song and dance.

 

In the annals of history, June 6 gets prime billing.  That’s understandable, because the successful Normandy landings on D-Day (June 6, 1944), probably saved Western Civilization.  (Or maybe that heroic endeavor simply preserved liberal democracy for another 75 years, now that we seem encircled by fanatics both home and abroad who view the Enlightenment with disdain.)  But June 7 is no slacker.  On June 7, 1776, Richard Henry Lee introduced the Lee Resolution, which later became the Declaration of Independence. 364 days before D-Day, the American Navy decisively won the Battle of Midway, which turned the tide of the Pacific War.  On June 7, 1892, Homer Ferguson refused to leave the whites-only part of a train.  He later lost his Supreme Court case, Plessy v. Ferguson.  That opinion upheld “separate but equal,” a nasty judicial stain that would not be scrubbed away until 1954.  (SCOTUS Lesson #1: Horrible Supreme Court precedents can be overturned, but it can take a terribly long time – almost as long as the interval between NBA Finals games.)  One year later, on June 7, 1893, an Indian barrister offered a very similar refusal in South Africa.  That refusal is usually counted as Gandhi’s first act of civil disobedience.  And on June 7, 1965, the Supreme Court issued its decision in Griswold v. Connecticut, holding that married couples have a constitutional right to contraception.  Maybe there are people in 2017 who regret that decision (see our overly political parenthetical above) but we’d be surprised to meet such people, just as we’d be surprised to meet people who regret Brown v. Board of Education.  Still, the High Court arrived at that sensible result via a fuzzy analysis (e.g., “penumbras” and “emanations”) that could justify just about anything.  (SCOTUS Lesson #2: Good results and good reasoning do not always operate in tandem.)

In the passage of time, whether viewed as a Hegelian movement of ideas or as merely One Damned Thing After Another, June 7 is a significant date.  Now here comes the inevitable strained segue: today’s case, In re Cook Medical, Inc. IVC Filters Marketing, Sales Practices and Product Litigation, 2017 U.S. Dist. LEXIS 82761 (S.D. Indiana May 31, 2017), is about the passage of time.  More specifically, it is about how statutes of repose apply in drug and device litigation.

We do not often get a chance to write about statutes of repose.  We get more opportunities to discuss statutes of limitations, though we infrequently seize those opportunities, because the issues are usually fact-specific and obvious.  By contrast, statutes of repose present interesting legal issues, and their force can be devastating to tardy claims.  In the In re Cook Medical case, the defendant made a motion on the pleadings to dismiss claims on the ground that they were precluded by statutes of repose.  The court wrestled with three different statutes of repose:  Georgia, Tennessee, and Texas.  The differences among those statutes resulted in different dispositions of the claims by the various IVC Filter plaintiffs’ claims.

Georgia

The Peach State bars claims for strict liability, negligence, or breach of warranty if the suit is not brought within ten years from the date of the first sale.  The Georgia plaintiffs’ claims in this case were filed more than ten years after the sale.  Buh-bye, right?  Not so fast.  Georgia’s statute of repose contains an exception if the defendant manufacturer engaged in conduct manifesting “willful, reckless, or wanton disregard for life or property.”  The plaintiffs argued that they had alleged such conduct.  How? it is not clear from the opinion.  Please excuse a slight rant.  It seems far too easy for drug and device plaintiffs to allege that any failure to warn equals reckless or wanton conduct.  Courts need to clamp down on this all-too-easy way to maintain settlement leverage or exploit jury anger.  Not adding a warning in the face of controversial or mixed studies should not be the stuff of punitive damages.  Maybe someday courts will wake up to this nonsensical hole in product liability law.  End of rant.  The In re Cook court was not such a court.  But it did limit the damage. It held that that the willful/reckless/wanton exception applied only to negligence claims, but not to strict liability and warranty claims.  Thus, the court dismissed the strict liability and warranty claims per the statute of repose.  The negligence claims remained.  So did the consumer fraud claim, which the court held was not subject to the statute of repose.

Tennessee

Tennessee also has a ten year statute of repose, though apparently not the willful/reckless/wanton exception.  At least no such exception was raised in this case.  The Tennessee plaintiffs conceded that the strict liability claims were doomed, but they tried to keep their negligence and warranty claims alive.  Nice try, said the court, but Tennessee’s Product Liability Act defines “product liability action” to include all of the plaintiffs’ claims.  That did not quite end the debate. The plaintiffs pointed out that Tennessee extended the statute of repose to 25 years for asbestos and silicone gel implant claims.  Why should those claims get such special treatment?  Never you mind, said the court, which applied the rational basis test and concluded that the Tennessee legislature was allowed to make such distinctions.  Sure, IVC Filters might pose risks of latency, but the constitution does not compel legislators to treat all latent defects the same.  Put another way, “[i]t is no requirement of equal protection that all evils of the same genus be eradicated or none at all.”  In re Cook Medical, IVC Filters Prods. Litig., 2017 U.S. Dist. LEXIS 82761 at *14, quoting other cases.  The court dismissed all of the Tennessee claims.

Texas

“T for Texas, T for Tennessee.”  Those two states go together musically (see Guy Clark, Willie & Waylon, Lynyrd Skynyrd, etc.).  Here, they also go together legally, as the defendant prevailed on the statutes of repose from both states.  The Texas statute of repose is for 15 years.  (Of course it is bigger.  This is Texas.)  But there is an exception if the manufacturer/seller explicitly warrants that the product has a useful life longer than 15 years. The Texas plaintiff attempted to save her claims by filing an affidavit, wherein she said she was told that the device was permanent, and the Patient Guide, which stated that the IVC Filter was “safe and effective as either a permanent or temporary device.”  But this was a motion on the pleadings.  Outside materials are not allowed.  Looking just at the complaint, there was no allegation that the IVC filters were marketed as permanent devices.  That is very, very bad for the plaintiff:  “As this is a motion for judgment on the pleadings, the omission of her specific warranty allegations is fatal.”  Id. at *18.  You might think that is an extraordinarily severe result.  No matter. The court observed that even if the allegations of permanence were included in the complaint, the claims would still not fly, because the plaintiff nowhere alleged any specific person who warranted permanence, and nowhere alleged any reliance on such warranty of permanence. As for the Patient Guide, the plaintiff did not allege in either her complaint or her affidavit that “she read the Guide before her surgery, much less that she relied on the Guide rather than her own doctor’s recommendation.”  Id. at *20.  Accordingly, the exception to Texas’s statute of repose did not apply, the statute of repose did apply, the claims were timed-out, and they had to be dismissed.

On Friday, Judge Posner issued an interesting opinion in Chang v. Baxter Healthcare Corp., No. 09-2280 (7th Cir. March 26, 2010). The opinion affirms the dismissal on statute of limitations and forum non conveniens grounds of claims brought against U.S. companies by plaintiffs from Taiwan. Along the way, Judge Posner has some interesting things to say about: (1) California conflicts of law rules, (2) California’s “borrowing” statute, (3) statutes of repose and limitations generally, (4) the discovery rule, (5) fraudulent concealment (“Denial of liability when negotiating a settlement agreement is the norm; it is not evidence of fraudulent concealment of anything”), (6) the difference between the terms “arose” and “accrued,” (7) the difficulties in obtaining evidence in Taiwan for a case pending in the U.S., and (8) the relevance of differences in the foreign forum’s substantive law and statute of limitations to the forum non conveniens analysis. It’s Posner, so you’ll probably find it interesting. We do, but we have to be “speak no evil” on this one, since we represent one of the winning parties. In any event, we wanted our readers to know about it.

This is a Bexis only post. Herrmann represents Wyeth and doesn’t want to go on record on this.

We mentioned the Montgomery v. Wyeth case before, here. Well we’re pleased to report that the Sixth Circuit today affirmed the defense summary judgment in Montgomery, slip op. here. The moral of Montgomery is – be on the lookout for statutes of repose, they can be your friends.

That goes double for you young associates out there, stuck with the boring task of answering all those complaints in MDLs. ALWAYS look for a statute of repose. They’re state-specific, idiosyncratic, and usually not designed for prescription medical products. But where they apply, they can be a magic bullet – like this one was in Montgomery.

Tennessee has a general product liability statute of repose, requiring that an action “be brought within one year after the expiration of the anticipated life of the product.” Slip op. at 2. Well, the defendant sold the drug with an expiration date (three years). The plaintiff blew the statute.

To be fair, the plaintiff didn’t get sick until eight years after taking the drug. But that’s how statutes of repose are intended to work. They cut off liability absolutely, based upon a date other than the accrual of a cause of action. They are intended to bar litigation over injuries with long latency periods.

Trapped, the plaintiff threw the kitchen sink during the appeal. They argued that the law of the state where they took the drug (Georgia) should apply rather than the state in which they were injured (Tennessee). The Sixth Circuit, in a lengthy discussion rejected that argument. Slip op. at 5-12.

If you’ve got a case that, for any reason, you want the law of the injury state rather than the prescription state to apply, Montgomery is a case you want to read.

The plaintiff claimed that the statute was tolled by a fen-phen class action settlement. Sorry, but that class action specifically excluded the particular medical condition from its scope. There’s no class action tolling for something the class action doesn’t cover. Slip op. at 12-16.

The plaintiff claimed that the product had been repackaged somewhere along the line and didn’t have an expiration date on it. Didn’t matter. The statute specified the “expiration date placed on the product by the manufacturer.” The defendant put a date on it’s product. That someone later on in the chain of sale removed and substituted new packaging didn’t deprive the manufacturer of its defense. The plaintiff need not know the expiration date. Slip op. at 16-18.

Finally, the plaintiff claimed waiver. Strike four. The defendant had pleaded the statute of repose and cited the statute in its answer. Slip op. at 18-19.

Again, a word to the wise. Check for statutes of repose when answering the complaint and filing dispositive motions.

For reasons too numerous to mention, neither of us can comment on the recent decision in Montgomery v. Wyeth, No. 1:05-CV-323, slip op. (E.D. Tenn. Mar. 19, 2008) (copy here) (now published at 540 F. Supp.2d 933).

But you should know about that decision, so we’re describing it (very briefly) here, stripped of any commentary.

Plaintiff Angela Montgomery pleaded that she ingested the diet drug Pondimin in 1996 and 1997 in the state of Tennessee. Allegedly as a result of ingesting Pondimin, she developed Primary Pulmonary Hypertension in 2005. Later in 2005, she filed a product liability action against Pondimin’s manufacturer.

Tennessee’s product liability statute includes a statute of repose that provides, among other things, that a complaint must be filed “within one (1) year after the expiration of the anticipated life of the product.” Tenn. Code Ann. Sec. 29-28-103. The “anticipated life of the product” is the “expiration date placed on the product by the manufacturer when required by law but shall not commence until the date the product was first purchased for use or consumption.” Id. at Sec. 29-28-102.

Defendant stopped manufacturing Pondimin in September 1997. The expiration dates on the packaging (which were required by law) were three years from the date of manufacture, or no later than September 2000. Montgomery, slip op. at 4. The statute of repose therefore expired no later than September 2001, several years before Montgomery was allegedly diagnosed with PPH.

Statutes of repose are designed to set an absolute time bar on lawsuits. The Tennessee Supreme Court has held that when an “injury occurs outside the [repose] period, no substantive action ever accrues, and a claimant’s actions are . . . barred.” Penley v. Honda Motor Co., 31 S.W.3d 181, 184 (Tenn. 2000). The “anticipated life” provision operated the same way: “[W]hen a plaintiff does not discover (and could not have reasonably discovered) her injury until after the statute of repose period, the cause of action never accrues.” Montgomery, slip op. at 7. Montgomery’s claims were therefore barred by the statute of repose.

The court considered, and rejected, three arguments proffered by Montgomery to avoid this result. First, the earlier class action settlement in the Diet Drug litigation did not include PPH claims and so could not have affected Montgomery’s claims. Id. at 8-12. Second, the defendant had pleaded the statute of repose in its Answer and so preserved the defense. Moreover, a statute of repose, unlike a statute of limitations, is substantive and probably cannot be waived. Id. at 12-13. Finally, the court held that Tennessee law applied to plaintiff’s claims; she could not avoid summary judgment by invoking Georgia law.

We know that we promised at the top that we’d provide no commentary on this case.

But we can’t resist (you’ll be startled to hear).

So far as we’re aware, and as the Montgomery decision says, the “anticipated life” provision in the Tennessee statute of repose is unique. If anyone ever says that it’s okay to paint with broad strokes in litigation, and that only crazy compulsives fret the details, the Montgomery decision should be “Exhibit A” in your response to that person. It’s extraordinarily unlikely that anyone — even a product liability lawyer practicing regularly in Tennessee — would have been aware, off the top of his head, of the “anticipated life” provision. This case shows the need to pay close attention to, and do meticulous research into, local state law. Complete defenses sometimes appear in the most unlikely places.

Over the past seven weeks we have been sports-starved. Back episodes of The Great British Baking Show do not quite make up for missing the start of baseball season and the NBA and NHL playoffs. But two things have ridden in to the rescue: (1) The Last Dance, the ESPN ten-part documentary about the 1997-98 championship run of Michael Jordan and the Chicago Bulls, and (2) the NFL draft. Maybe in the future we will have the time to talk more about the former. (Who are we kidding? We undoubtedly will have the time.)

Today, feeling inspired by the NFL draft, we will conduct a mock draft of our favorite Drug and Device Law topics. Like the NFL draft, a round in our draft consists of 32 selections. Like the NFL draft broadcast, we will occasionally offer highlights of the selection in the form of links to prior blogposts. Unlike the NFL draft, we will not be making our picks from a yacht (a la Cowboys owner Jerry Jones) or from a luxurious home that resembles the residence of the rich family in Parasite (a la Cardinals coach Kliff Kingsbury). Also, our draft lasts only one round. All other topics will be undrafted free agents. And there will be no tears.

Okay. We’re on the clock.

1. Personal jurisdiction. The first pick in this year’s NFL draft was LSU quarterback Joe Burrow. He had perhaps the greatest year a college quarterback ever had. But before that,he was not really on any team’s radar screen. Accordingly, with the first pick in this year’s DDL draft, we name personal jurisdiction, which lately has been a very powerful defense, after years of virtual irrelevance. Since the SCOTUS opinions in Bauman and BMS, personal jurisdiction has had a very good run. Now, you might challenge this pick, because getting out on lack of personal jurisdiction might not end the case. The plaintiff can sue you someplace else. But that often does not happen. That is because the plaintiff is hellbent on being in a hellhole jurisdiction. In any event, we should all think about personal jurisdiction first, because otherwise it might get waived. Here is one of our most recent posts on personal jurisdiction.

2. TwIqbal. Most football mavens said that Chase Young was the best player in the draft. The Washington football franchise picked him, which, for that team, was an uncharacteristically intelligent move. Young, an Ohio State defensive standout, is a generational talent. TwIqbal is also a game-changer. Let’s face it: plaintiffs often file complaints against our clients without any real factual basis. The complaints try to obscure that fact, but the SCOTUS Twombly and Iqbal decisions tell courts to test those complaints. It is amazing how often those complaints fail those tests. Check out this post for a recent example of TwIqbal flexing its muscles.

3. The Detroit Lions had the third pick in this year’s draft, and they chose shutdown cornerback Jeff Okudah. In this spot, we are choosing the ultimate shutdown defense, preemption. Hardly a week goes by when we don’t author a post or two on preemption. Here’s a recent example. We love preemption. We love preemption almost as much as we love football. If only there were more courts that shared our love.

4. Alternate medical causation. The Giants held the fourth pick. Unlike the last two drafts, the Giants reverted to form with an unglamorous, solid pick of an offensive lineman. We will do likewise, picking the ultra-solid, but sort of boring defense of alternate medical causation. You probably won’t get summary judgment by arguing alternate medical causation, but you might win the trial that way.

5. No safer alternative. The Miami Dolphins threw a long bomb in choosing Tua Tagovailoa. Sure, he suffered a horrifying injury last Fall, but the Dolphins simply did not see any other quarterback as a viable alternative. So, admittedly pushing the analogy past the breaking point, we here alight upon the defense that the plaintiff’s design defect claim is wrecked (maybe – it depends upon the applicable state law) for lack of a safer alternative. Here is one of our discussions of this defense.

6. Snap removal. No one picks a long snapper in the first round. But you have to move fast to pull off a snap removal. You must remove the case to federal court before the plaintiff serves the complaint on the in-state defendant. Plaintiffs really hate this maneuver, but the plain words of section 1441(b)(2) support it. The law on snap removal seems to be moving in favor of it, and in favor of defendants. Follow that nice trend here.

7. Comment k. The defense for unavoidably unsafe products reaches back to the classic era of tort law. It protects prescription drug products from design defect claims. Shouldn’t it also protect prescription medical devices? We think so, and we said so here.

8. Daubert. We thought the Arizona Cardinals got the best value of any NFL first round pick this year when they grabbed Isaiah Simmons, a do-everything defensive stopper from Clemson. Daubert can also be a defensive stopper. Yes, the process of scrutinizing expert methodologies demands a lot of work from lawyers and judges, but if it keeps junk science out of the courtroom isn’t it worthwhile? We write about Daubert constantly – here, for example. You might even call us experts on the subject.

9. Bankruptcy. Always check to see if your plaintiff declared bankruptcy. If so, then check to see if that plaintiff listed your tort lawsuit as an asset. Usually the answer is no, and you might be able to interpose a defense of bankruptcy fraud. That might make he the case go away, or at least make it slower and less appetizing. See here, for example.

10. Learned Intermediary. This might be an example of a gem slipping down surprisingly far. We knock out lots of failure to warn cases on the ground that the prescribing physician never testified that a different warning would have made any difference. If you randomly picked one of our posts, odds are decent that you’d find a discussion of the learned intermediary doctrine. Or you could just look here.

11. MDL case management – proof of use/injury. The Jets have had a history of making laughably bad draft picks. But no one is laughing this year. The Jets chose offensive tackle Mekhi Becton out of Louisville. Becton is a massive man with massive talent. Mass torts are massive because plaintiff lawyers assemble case inventories bloated with garbage. We don’t blame plaintiff lawyers for doing what is economically rational, but we do blame courts that refuse to permit any means of separating the wheat from the chaff. Still, there are some courts that permit a vetting process in the form of early requirements of proof of use and proof of injury. Those courts are getting it right. Look, if even the Jets can get a draft pick right, shouldn’t we expect judges to get things right more often than not?

12. Rule 9(b) specificity. Fraud claims are sexy and are the stuff of punitive damages. But in their desperation to cobble together a deceit cause of action, plaintiffs often leave out crucial details, such as who, what, where, when, etc. Rule 9(b) says that plaintiffs must write more specific complaints. Sometimes they can. Sometimes they can’t. Our posts on this topic are usually on the can’t cases, like this one.

13. Fraudulent joinder. We defense hacks prefer federal court. Plaintiff lawyers seem to see things differently. One way to fend off removal to federal court is to sue a nondiverse party, such as a doctor, retailer, pharmacy, etc. But if that claim is utter bunk, you can persuade a court to drop the fraudulently joined party and place the matter in the loving hands of an Article III federal judge. It is not easy, but it works often enough to generate a number of posts, such as this one.

14. Federal question. This is another potential basis for removal, and we discussed an interesting route to federal question here.

15. Statute of limitations/repose. We often steer clear of statute of limitations cases because they are so fact-specific. But there is no denying that this defense is a possibility in many cases and poses an existential threat to the case. It’s nice to have this defense in the toolbox for mediations or settlement negotiations.

16. Primary jurisdiction. At pick 16 in the NFL draft, the Falcons came up with the first serious head-scratcher, cornerback AJ Terrell from Clemson. Great player, but not ranked by many to go this soon. So it is with primary jurisdiction. Consider it a less impactful teammate of preemption. But if the theory of the case really depends on an impending agency determination, primary jurisdiction can be a valid derailment. Here is an example.

17. Random bellwethers. We love a random bellwether selection process. Some judges don’t like the loss of control. Okay, random does not guarantee representativeness, but party selection guarantees nonrepresentativeness. And here’s the dirty secret (admitted to us by a plaintiff lawyer during heated discussions): plaintiff lawyers do not want bellwether trials of representative cases. Now why do you suppose that is?

18. Manufacturing defect – no deviation from specs. Almost every drug or device product liability complaint alleges a manufacturing defect, and almost no case ever proves it. It is too often a make-weight claim. Or a manufacturing defect claim can be a plaintiff’s effort to manufacture a detour around preemption. Usually, there is no hint of a deviation from a specification. Usually, the manufacturing defect claim is just a design defect claim in disguise. Bexis wrote a post about how to spot the difference here.

19. Choice of law (Erie). The genius of federalism is the notion of states as laboratories. But some of those laboratories cook up poisonous judicial systems. Then again, some states have pretty good laws on the impact of compliance with federal law (hello, Michigan and New Jersey) and some are good on punitive damages (who dat? Louisiana). Under Erie, federal courts aren’t supposed to invent move causes of action. Occasionally, courts actually abide by this rule.

20. Discovery/social media. We once had a case where a woman claimed catastrophic, disabling injuries. Then she posted on Facebook how she had just won a rodeo event. We liked that post.

21. Pari delicto. The Philadelphia Eagles picked in the 21st spot. Most experts, and most residents of the City of Brotherly Love (all of whom consider themselves experts) panned the first two Eagles’ selections as dumb or even bizarre. So, in honor of the Eagles, we now pick pari delicto, which is something of a squirrelly concept, and not often available. It doesn’t feel great to say, ‘You say we’re bad, but so are you.’ Still, as set forth in this oldie-but-goodie post from 2009, it can be a winning defense.

22. Forum non conveniens. Sometimes cases get filed in a place that is convenient for no one but the plaintiff lawyers, or their wallets. FNC is a legitimate basis for moving a case from crazytown to a place that actually is connected to the case. But good luck trying it in our hometown. Apparently, Philly judges think that the intersection of Broad and Market is always convenient.

23. Chart comparison of experts. In most cases the treaters are on the defense side. (When they are not, we know we are running uphill.) by contrast, the plaintiff experts are out on BS Island. We love drawing up charts for closing argument showing alignment of our experts with the treaters, while the plaintiff experts are offering litigation-driven opinions that agree with nobody else. We might even use different colors to highlight he difference. Low-tech, but effective.

24. Medical Association opinions. This topic is related to the prior one. Here, instead of saying our experts agree with the treaters, we’re saying that our experts agree with the relevant medical associations. Or, put another way, we’re saying that the plaintiff experts are at odds with the relevant medical associations. And then, inevitably, the plaintiff lawyers will suggest that the medical associations are bought and paid for. Sigh.

25. Regulatory clearance/approval. Sometimes the NFL draft will go on positional runs, where it is as if teams en masse suddenly wake up to the appeal of selecting, say, wide receivers. Take the 49ers for example, who traded into this slot (25) and took Arizona State route runner Brandon Auyuk; or the Las Vegas Raiders (that’s right, Las Vegas!), who used three of their first four picks on wide receivers. Right now, we seem to be on a run of finding other sources to bless our experts’ opinions. Preemption is not necessarily the end of the relevance of regulatory story. (Although we have yet to see what the ultimate effect of the Albrecht decision will be.) Sometimes we can use the regulators as bodyguards. They approved our product. They approved our label. They have a public interest. The hind-sighting plaintiff expert has an interest in a red Maserati.

26. First Amendment. Who doesn’t enjoy wrapping themselves in the flag? The First Amendment becomes relevant in various contexts, including product promotion (including off-label) and other public communications. Here is one of many discussions of the intersection between constitutional and tort law.

27. Other similar acts. This topic brings us back to our prosecutorial days, when we almost always had the option of dangling the defendant’s prior criminal acts in front of the jury. The issue is governed by Fed. R. Evid. 404(b). In civil cases, the existence of other similar acts can conceivably crop up on either side of the v. There is ample case law. Some of it is discussed here.

28. Comparative/contributory negligence. We recently had the good fortune to litigate in one of those old fashioned jurisdictions where the plaintiff’s contributory negligence is a complete defense. The availability of that defense supplied a huge incentive for the plaintiff to enter into a reasonable settlement. But comparative negligence is the much more common rule, and sometimes defendants are reluctant to mount that defense at trial, because the jury might use it as an excuse for finding fault on the part of the defendant when they wouldn’t if faced with an all or nothing choice.

29. Medical monitoring. This is not exactly a favorite topic, except to the extent a smart court gives it the back of the judicial hand. Here is one example.

30. Lone Pine orders. By this point in the draft, the can’t-misses are gone. Now we start looking for potential big upsides. A Lone Pine order forces plaintiffs to supply an expert affidavit laying out a coherent medical causation theory. It is a relatively efficient way to compel plaintiff lawyers to offload meritless cases. But courts seem reluctant to employ this technique. Too often, courts will not issue Lone Pine-type orders until a mass tort is well past the mature stage in an effort to cut off the tail. If it works then, why wouldn’t it work sooner? Here’s one tip that might slightly improve your odds of getting a Lone Pine-type order: call it something else.

31. Settlement. We used to look at settlement teams with skepticism, wondering whether they are real lawyers. Then we got involved with some of them. We found out that settlement is at least as complicated and heady as arguing motions. In fact, we now have to admit that some of the smartest lawyers we’ve met are in the settlement game. We’ve heard some clients say that a great settlement lawyer is more valuable than a great trial lawyer. Best to have both.

32. Idiopathic causation. When you sit at the end of the draft the pickings are slim. In the NFL draft, the last player drafted is called “Mr. Irrelevant.” That’s where we are now. Idiopathic essential means … dunno. It’s a real medical causation theory. It probably is much more true than the plaintiff’s who dunnit story. But it seems like an unsatisfying meal. Except … we once convinced a jury that an injury was, indeed, idiopathic. Just like in the NFL, every once in a while Mr. Irrelevant turns out to be a winner. (This year’s Mr. Irrelevant is linebacker Tae Crowder, drafted by the Giants. Crowder was the leader of a very tough Georgia defense. We wish him good luck.)

Last week we discussed the Jacob v. Mentor Worldwide, LLC case, in which a pro se plaintiff alleged injuries from breast implants and complained that the manufacturer had inadequately warned of the risks. The claim boiled down to an attack on the FDA-approved labeling of a class III medical device, and that meant it was preempted. The court dismissed the case in its entirety, but gave leave to amend. We said we awaited the outcome of further proceedings.

Well, that was dim-witted of us. The opinion we blogged about was from last July. Any decent associate would have Shepardized the case and learned that the plaintiff had, in fact, amended the complaint, and the court did, in fact, dismiss it yet again. (That happened on December 10, 2019.) But in our self-quarantined, self-pitying, terrified news-watching, ice cream-eating state, we dropped the ball. Luckily, the attentive, diligent, victorious, omnicompetent defense counsel folks at Tucker Ellis filled us in on what the medical experts would call the sequelae.

The plaintiff, still acting pro se (you can see where this is going, right?), amended the complaint to allege claims of violation of premarket approval, breach of implied warranty, and lack of informed consent (failure to warn) against the manufacturer. But the pro se doctor plaintiff did not stop there. She also alleged a medical malpractice claim against her doctor, as well as claims against the American Society of Plastic and Reconstructive Surgeons (ASPRS) and the FDA.

Let’s start with the new defendants. The medical malpractice claim was barred by Florida’s medical-negligence four year statute of repose. That four year period precludes lawsuits against medical providers no matter when the plaintiff discovered the alleged negligence. Moreover, the plaintiff had not complied with the pre-lawsuit screening process that Florida requires (as do many other jurisdictions) plaintiffs to go through prior to filing a lawsuit. All of that is just another example of doctors getting much more favorable legal treatment than the smart and kind people who invent the products that allow doctors to do what they do. One would have thought that the pro se plaintiff, who was a doctor herself, might have been aware of these procedural hurdles. But we digress. The cause of action against the ASPRS failed because there was no privity between the plaintiff and that organization, nor was there any causal nexus in sight between the ASPRS and the plaintiff’s injuries. As for the claim against the FDA, there are two words that slam the door shut: sovereign immunity.

The amended claims against the manufacturer weren’t really so amended. The court held that the amendments did “not satisfy the Court’s July 17, 2019 order,” “failed to cure the deficiencies,” and were merely an attempt “to repackage the previously preempted claims.” The ‘new’ claims, at bottom, were still gripes about a failure to warn. That sorry sameness again banged against Riegel and Buckman preemption. This time the court dismissed the case with prejudice.

So at least when we likened the plaintiff to Sisyphus, we weren’t wrong. She pushed the rock, the amended complaint, up a hill, and it rolled right back down. Now we have learned that the plaintiff has filed an appeal with the Eleventh Circuit. It looks to us like yet another push of the rock up the hill.