Statute Of Limitations

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.

Geographical pride.  A feeling of community.  Belonging.  Being one of the locals.  We all experience it to some degree.  Sometimes you take it with you.  Like wearing your favorite Roll Tide t-shirt while listening to jazz in New Orleans.  While Pennsylvanians may not take kindly to out-of-state sports jerseys, they welcome Maine lobster and Delaware Dogfish Head 90-Minute IPA.  And if you’re driving a Little Red Corvette on the Jersey Turnpike, you better be prepared to move over for Pink Cadillacs.  That’s just how it is.  We defend our homes, our traditions, our customs.  We’re all different.  And, the differences hardly stop with food, music, and sports.  Sometimes, it’s those little differences that make all the difference in the world.

Like, whether a state recognizes the discovery rule for triggering the running of a statute of limitations.  For instance, both Alabama and Oregon have two-year statutes of limitations for products liability actions, but the statute starts to run in Alabama once a plaintiff is injured.  Ala. Code §6-2-38.  Whereas, in Oregon, the clock doesn’t start ticking until “the plaintiff first discovers or, in the exercise of reasonable care, should have discovered that the injury or other damage complained of exists and was the result of a product defect.”  Or. Rev. Stat. Ann. §30.905 (emphasis added).  The difference can be considerable.  Pulling an example completely at random, take a hip implant.  It’s implanted; plaintiff suffers a side effect; the implant is removed.  In Alabama, the explant surgery was the trigger for the statute of limitations.  In Oregon, we need to know a whole lot more before we can decide whether plaintiff has made it to the starting line yet.  That’s pretty much how the court decided the issue in In re Smith & Nephew Birmingham Hip Resurfacing (BHR) Hip Implant Products Liability Litigation, 2018 WL 606705 (D. MD. November 19, 2018).  So, maybe our example wasn’t completely randomly selected.

It’s an MDL, so it involves plaintiffs from all over the country.  Lebron jerseys mixing with Curry jerseys.  Bourbon mixing with Sam Adams Lager.  Cats and Dogs living together.  You get the point.  Defendant filed a motion to dismiss 50-plus cases on statute of limitations grounds, primarily arguing that regardless of the whether a state has a discovery rule, the statute started running at the time of the revision surgery.  Plaintiff countered similarly to the contrary – that the revision surgery never started the statute running.

The court drew a fairly bright line distinction down the middle – and right along the discovery rule.  The reason the discovery rule was so important to the court was that applying the discovery rule requires a factual inquiry beyond the face of the complaint and therefore beyond the confines of a motion to dismiss.

For states that recognize discovery rule tolling, the question of when the statute starts to run depends on “when the plaintiff knew or, with due diligence, reasonably should have known of the wrong.”  Id. at *3 (citation omitted).  In the case of a hip implant, the revision surgery identifies that there has been a complication, “but is silent as to the cause of that complication” – malpractice, a unique medical condition, or perhaps a product defect.  Id.  What the plaintiff did and whether he/she acted reasonably in learning the cause is the subject of a factual investigation that prevents a dismissal on the pleadings.   The court went on to examine and explain that concept in 12 states that recognize the discovery rule (Alaska, Arizona, Arkansas, California, Indiana, Massachusetts, New Jersey, Ohio, Oregon, Pennsylvania, Utah, and Wisconsin).  Id. at *3-10.

Only four claims in discovery rule states were exempt from the above ruling.  In each of those cases, the court used the latest possible date for plaintiffs to have discovered their cause of action – the date of the product recall – and found that even using that date, plaintiffs had filed outside the applicable statute of limitations period.  Those cases were dismissed.  Id. at *3.

That left cases in four states that do not recognize the discovery rule, at least in this context.   Alabama, Idaho, and Michigan have not adopted the rule and the cause of action accrues at the time of injury.  Id. at *10.  And New York’s discovery rule provides that the statute starts running “when a plaintiff first noticed symptoms, rather than when a physician first diagnosed those symptoms.”  Id. (citation omitted).  In each of these cases, the revision surgery would be the latest date that triggered the statute, time-barring the claims unless plaintiff sufficiently pleads fraudulent concealment or equitable tolling — which they didn’t.  Id. at *11.  While there are variations among the states, the basic concept is that if the defendant fraudulently conceals the existence of a cause of action, the limitations period is tolled.

Here plaintiffs argued that defendant failed to disclose that it had lost its PMA status and failed to warn that the device was defective and unsafe.  Id. But those allegations were either untrue or preempted:

But the plaintiffs’ arguments cannot support a claim of fraudulent concealment [because defendant] was not federally required to disclose adverse incidents concerning the [] device to any person or entity other than the FDA, and [defendant] never lost its PMA. And the decision as to whether [defendant] should have lost its PMA is left solely to the FDA. Thus, the plaintiffs’ arguments either misstate the facts or are expressly preempted because they would impose requirements different from, or in addition to, those imposed by the FDA.

Id.  Good old preemption.  It doesn’t matter if you bleed Michigan blue, if you Remember the Alamo, or if you live where a grizzly bear is your only neighbor, preemption unites us all.

Today’s guest post was is a group effort of Betsy Chance, Diana Comes, and Mac Plosser, all at the Butler Snow firm.  A little while ago they circulated (we don’t remember exactly how) an earlier version of a 50-state survey they had put together on state tolling statutes that preserve lawsuits that have been dismissed for non-merits reasons.  We had encountered this type of tolling before, in mass tort litigation – to see more, particularly involving personal jurisdiction dismissals – so it was of interest to us.  After reading it, we asked our colleagues if we could post the survey as a guest blogpost.  They agreed, and here is the result.  As always, our guest bloggers are 100% responsible for the content of their posts, and deserve all the credit (and any blame) for what follows.


Many jurisdictions have “savings statutes” that are designed to provide a window of opportunity for a plaintiff to re-file a claim that was dismissed for non-merits reasons even if the statute of limitations has run.  Such savings provisions vary widely:  from no provision at all to saving claims where process has never been served to saving claims that were voluntarily dismissed.  The time limits to “save” a claim are also disparate and range from 30 days to three years. Following is a summary of all 50 states’ approaches to savings statutes, providing the statutory basis for such savings statutes along with other helpful information.

No savings statutes:  Alabama, Florida, Hawaii, North Dakota, South Carolina, and South Dakota

Six states have no mechanism for preserving claims following a dismissal without prejudice.  See Burt v. State, 149 So.3d 1110, 1113 n. 5 (Ala. Crim. App. 2013) (“Alabama does not have a general savings statute or a constitutional savings clause.”); HCA Health Serv. v. Hillman, 906 So.2d 1094, 1098 (Fla. App. 2004) (“Florida has chosen not to adopt a ‘savings statute’ that allows a plaintiff whose case has been dismissed otherwise than on the merits to pursue the action even though the statute of limitations has run.”); Eto v. Muranaka, 57 P.3d 413, 427 (Haw. 2002) (“There is no savings statute in Hawai’i.”); Reid v. Cuprum SA, de C.U., 611 N.W.2d 187, 190 (N.D. 2000); Rink v. Richland Mem. Hosp., 422 S.E.2d 747, 749 (S.C. 1992); Peterson v. Hohm, 607 N.W, 2d 8, 13 (S.D. 2000).

Very limited-scope savings statutes: Michigan, Vermont, and Wisconsin

Michigan does not have a general savings statute, and has a limited savings statute of two years only for wrongful death claims where the claimant dies before the limitations period expired or within 30 days of the expiration.  Mich. Comp. Laws § 600.5852. Vermont’s only savings statute applies to claims or criminal prosecutions based on repealed statutory provisions.  See 1 Vt. Stat. Ann. §214(b).   Wisconsin’s only savings statute concerns the viability of pending actions after repeal of a statute. Wis. Stat. § 990.04.

Less than 6 months: Colorado, Kentucky, Nevada, Oregon, and Texas

Five states have more general savings statutes, but significantly limit the window within which to re-file an action per statute.  Colo. Rev. Stat. § 13-80-111 (90 days to re-file an action that was dismissed for lack of jurisdiction or venue, including actions first filed in federal court and recommenced in state court); Ky. Rev. Stat. Ann. § 413.270 (a dismissed action may be re-filed within 90 days of dismissal based on jurisdiction or venue); Nev. Rev. Stat. Ann. § 11.500 (a dismissed claim may be re-filed within the original limitations period or 90 days, whichever is later, only if it is dismissed for lack of subject matter jurisdiction); Or. Rev. Stat. § 12.220 (60 day period for re-filing an action that “is involuntarily dismissed without prejudice on any ground not adjudicating the merits of the action” or dismissed for failure to properly effect service and the limitations period has expired); Tex. Civ. Prac. & Rem. Code § 16.064 (plaintiff may re-file a dismissed action within 60 days of dismissal if the action is dismissed for lack of jurisdiction).

Six months:  Arizona, Georgia, Iowa, Kansas, Maine, New Mexico, and New York

These seven states have six month general savings statutes with varying conditions.  Ariz. Rev. Stat. Ann. § 12-504(A) (six months to re-file a dismissed claim, but the savings statute is discretionary, and plaintiff must establish entitlement to the statutory provision if the claim is terminated by abatement, voluntary dismissal by order of the court or dismissal for lack of prosecution (see Jepson v. New, 792 P.2d 728, 734 (Ariz. 1990)); Ga. Code Ann. § 9-2-61 (six month savings period to re-file a claim that “the plaintiff discontinues or dismisses”); Iowa Code § 614.10 (six months to re-file a non-merits dismissal, provided the case is not voluntarily dismissed by plaintiff or dismissed for lack of prosecution); Kan. Stat. Ann. § 60-518 (action may be re-filed within 6 months if there is a non-merits dismissal of the claim after the statute of limitations has otherwise expired); 14 Me. Rev. Stat. § 855 (savings clause for cases “defeated for any matter of form” or the death of a party, which can be re-filed within six months); N.M. Stat. Ann. § 37-1-14 (a claim may be re-filed in six months if it was dismissed for any non-merits reason other than failure to prosecute); N.Y.C.P.L.R. § 205 (a claim may be re-filed within six months, unless it is voluntarily dismissed by the plaintiff, for failure to prosecute, for lack of personal jurisdiction over the defendant, or is a claim that is dismissed on the merits).

One year – significant preconditions:  Arkansas, California, Connecticut, Delaware, Idaho, Massachusetts, Minnesota, Montana, New Jersey, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, and West Virginia

Many states have one year savings statutes containing various legislatively and/or judicially imposed limitations or conditions.  See Ark. Code Ann. § 16-56-126(a) (before a plaintiff can take advantage of the one year savings provision, he or she must serve process of the first action, and may only re-file where the limitations period expires between the initial filing and the non-merits dismissal); Del. Code Ann. tit. 10 § 8118 (six circumstances where claims are saved and can be re-filed within one year of a non-merits dismissal, none of which include voluntary withdrawal); Idaho Code § 5-233 (re-filing within one year only when a judgment for plaintiff is reversed on appeal); Mass. Gen. Laws ch. 260, § 32 (one year time period to re-file actions dismissed only for “a matter of form”); Minn. Stat. § 541.18 (one year to re-file a claim that is dismissed for non-merits reasons, including jurisdictional issues, but the plaintiff must establish that the defendant received timely notice of the claim); Mont. Code Ann. § 27-2-407 (one year window to re-file a claim dismissed for non-merits reasons and other than a plaintiff’s voluntary dismissal or failure to prosecute); N.J. Stat. Ann. § 2A:14-28 (one year to re-file a claim where a judgment that was rendered for plaintiff is reversed on appeal or dismissed on post-judgment motion by the court); N.C. Gen. Stat. § 1A-1 (Rule 41A voluntarily dismissed claim may be re-filed within one year of dismissal; no revival of merits-based dismissals, failure to prosecute, or failure to comply with orders of the court; court may specify a shorter period for re-filing); Ohio Rev. Code Ann. § 2305.1 (one year time period to re-file a claim that “fails otherwise than upon the merits” when the limitations period expires during the pendency of the first suit); 12 Okla. Stat. § 100 (plaintiff may re-file a claim dismissed for non-merits reasons within one year of the dismissal, so long as the action is commenced within Oklahoma); 42 Pa. Cons. Stat. § 5535 (terminated actions may be re-filed within a year; excluding personal injury or wrongful death claims, claims that are voluntarily dismissed by plaintiff, dismissed for failure to prosecute or dismissed on the merits); R.I. Gen. Laws § 9-1-22 (action may be re-filed within one year of a non-merits dismissal, provided the dismissal is not voluntary by the plaintiff or for failure to prosecute); W. Va. Code R.§ 55-2-18 (plaintiff may re-file a dismissed action within one year of dismissal if the action was involuntarily dismissed for a non-merits reason but does not apply to voluntary dismissals by the plaintiff or to dismissals based on plaintiff’s negligence).

California’s one-year savings provision is unique in that it provides a one year window to re-file if a judgment for plaintiff is “reversed on appeal other than on the merits.”  Cal. Code Civ. Proc. § 355.  It was extended by case law to a claim that is voluntarily dismissed, but only if three factors are met: “(1) the trial court erroneously granted the initial nonsuit; (2) dilatory tactics on the part of the defendant ‘prevented disposition of the first action in time to permit a second filing within the [limitations period]’; and (3) the plaintiff had at all times proceeded in a diligent manner.”  Dimcheff v. Bay Valley Pizza Inc., 84 F. App’x 981, 982-83 (9th Cir. 2004) (quoting Wood v. Elling Corp., 572 P.2d 755, 760 (Cal. 1977)).

Connecticut has two separate savings statutes. One allows the re-filing of claims dismissed for a non-merits failure of the suit within one year, Conn. Gen. Stat. § 52-592 (six months if claim is against executor); the second allows a one year period to re-file if the original suit named the wrong defendant.  Conn. Gen. Stat. § 52-593.  An original action is deemed “commenced” for purposes of the savings statute when the defendant has effective notice of the action within the one year savings time.  Rocco v. Garrison, 848 A.2d 352, 359 (Conn. 2004).

One year – few preconditions:  Alaska, Illinois, Mississippi, Missouri, New Hampshire, Tennessee, Utah, and Wyoming

Another eight states allow one year for a plaintiff to refile an action, although the claims covered vary, for a one year time frame without condition.  See Alaska Stat. § 09.10.240 (a plaintiff “may commence a new action upon the cause of action within one year of the dismissal or reversal on appeal”); Miss. Code Ann. § 15-1-69 (re-filing within a year if a case is dismissed for a “matter of form,” which has been held to include voluntary dismissal in federal court); Mo. Rev. Stat. § 516.230 (an action dismissed without prejudice may be re-filed “from time to time” within one year); N.H. Rev. Stat. Ann. § 508:10 (an action may be re-filed within one year of any dismissal that does not bar the right of action); Tenn. Code Ann. § 28-1-105 (one year to re-file an action that is dismissed for reasons “not concluding the plaintiff’s right of action”); Utah Code Ann. § 78B-2-111 (plaintiff may re-file a claim once within one year of dismissal other than on the merits); Wyo. Stat. Ann. § 1-3-118 (new action allowed for one year after reversal of judgment or non-merits dismissal).

Illinois has a peculiar situation.  A 1995 amendment to 735 Ill. Comp. Stat. 5/13-217 that would have added significant preconditions was a non-severable part of a legislative package struck down as unconstitutional for other reasons in Best v. Taylor Machine Works, 689 N.E.2d 1057 (Ill. 1997).  Thus, the pre-1995 version of § 5/13-217, controls, which allows for voluntary dismissals and dismissals for want of prosecution or other procedural reasons to be re-filed within one year or within the original limitation period, whichever is greater without the other conditions added in 1995.  See Hudson v. City of Chicago, 889 N.E.2d 210, 214 n.1 (Ill. 2008).

Three years:  Indiana

By far the most generous savings statute is Indiana’s, which allows three years to re-file an action.  Ind. Code § 34-11-8-1.  The only consolation is that the statute does not apply if the action is dismissed for want of prosecution or voluntarily dismissed by plaintiff.  Ind. Code § 34-11-8-1(a)(1); Kohlman v. Finkelstein, 509 N.E.2d 228 (Ind. App. 1987).

Miscellaneous:  Louisiana, Maryland, Nebraska, Virginia, and Washington

The remaining states have unique savings provisions that resist categorization. While not a savings statute per se, Louisiana provides that the statute of limitations is tolled (“interruption of prescription”) when a suit is filed, and that tolling continues during the pendency of the case.  La. Civ. Code Ann. art. 3463.  However, such “interruption” is deemed not to have occurred if the plaintiff abandons, voluntarily dismisses or fails to prosecute her claim.  “The effect of interruption of prescription, as contrasted with suspension of prescription, is that the time that has run prior to the interruption is not counted; prescription commences to run anew from the last day of the interruption.”  Cichirillo v. Avondale Indus., 917 So. 2d 424, 430 (La. 2005).

Maryland does not have a general savings statute, but has two separate savings provisions operating in specific types of actions.  Md. Code Ann. Cts. & Jud. Proc. § 5-119 (60 days to re-file a medical malpractice claim when it was dismissed for “failure to file a report in accordance with § 3-2A-04(b)(3) of this article” (i.e., a certificate of a qualified expert) and does not apply to voluntary dismissals by the plaintiff); Md. Rule 2-101 (30 days to re-file in state court if action was dismissed in federal court for want of jurisdiction or under a limitations period under federal law).  In Virginia, a plaintiff may re-file an action within one year of a reversal of a judgment for plaintiff that does not preclude a new cause of action.  Va. Code Ann. § 8.01-229(E).  If a plaintiff voluntarily dismisses her claim, a new action may be brought within 6 months of the dismissal, or within the original statute of limitation, whichever is longer. Id. The savings statute applies whether the original action was filed first in federal court and then in state court or vice versa.  Blakely v. Austin-Weston, 348 F. Supp.2d 673, fn 4 (E.D. Va. 2004).

Nebraska and Washington provide a limited mechanism by which a plaintiff’s claim can survive in the event the statutory basis underlying those claims is amended or repealed.  See Neb. Rev. Stat. § 49-301 (addressing the viability of claims that are pending at the time the statutory basis for the claims is repealed); Wash. Rev. Code § 10.02.040 (providing that a savings period applies to preserve claims arising under a statutory framework even if the statute is subsequently amended or repealed). These states have no general tolling.

Because of the wide range of rules and limitations among the states, it is crucial that the relevant statutory and common law provisions applicable to voluntary or non-merits-based dismissals be examined in order to assess the propriety of any re-filed claim or the finality of any dismissal without prejudice.


We have always had a soft spot for zebras.   They are the equine world’s version of some of our favorite acquaintances — the ones who always dress a little outlandishly and always stand out from the crowd. (Fun facts:   1. Although most zebras have black stripes on a white background, a white-on-black specimen shows up every now and again.   2. All zebras have dark-pigmented skin under their coats, and the stripes are only hair-deep. Compare Dalmatians, whose spots are visible on their skin from the birth, though the spotted fur comes later.)   Zebra fondness aside, we often find ourselves, in our ongoing occupation of the mass tort space, arguing that plaintiffs hearing hoof-beats should have thought “horses,” not “zebras.” Less obtusely, we mean that judges should apply the discovery rule correctly and should hold that suits are time-barred when plaintiffs with adequate information fail to make obvious causal connections within the correct limitations period.

That is why we were so happy to read today’s case. We rarely report on statute-of-limitations decisions, but Adams v. Zimmer, 2018 U.S. Dist. LEXIS 136707 (E.D. Pa. Aug. 14, 2018), is a worthy exception.   In Adams, the plaintiff underwent surgery to replace her right hip joint, and was implanted with the defendant’s prosthetic hip, in January 2011. Eight months after surgery, in September 2012, she began experiencing pain in the region of the artificial hip. When the pain didn’t abate, the plaintiff’s doctor performed blood tests to test her metal ion levels because there had been reports of adverse local tissue reaction to the metals used in the artificial hip. There was no definitive diagnosis at that time, but the plaintiff’s doctor testified that, by February 2013, he informed the plaintiff that the prosthetic hip might be causing her symptoms.

The plaintiff dislocated her right hip in November 2014.   She testified in deposition that she knew that the prosthetic hip had dislocated and that this was “abnormal.” On January 7, 2015, her doctor noted in his records that he recommended “further investigation of the right hip,” and that the plaintiff might require surgery to replace the femoral head. 2018 U.S. Dist. LEXIS 136707 at *9. In deposition, the doctor testified repeatedly that he had informed the plaintiff of his recommendation and of the possible need for revision of the artificial hip. Testing performed on January 12, 2015 confirmed a tissue reaction to the artificial hip, and, by January 30, 2015, the plaintiff had decided to proceed with hip revision surgery. In her deposition, she testified that she understood that the surgery would involve replacing the defendant’s device with a new prosthesis. She underwent surgery on February 12, 2015 and filed her complaint on February 10, 2017. The defendant moved for summary judgment, arguing that Pennsylvania’s two-year statute of limitations barred the plaintiff’s claims.

The plaintiff argued that she “did not make the factual connection” between her injury and the defendant’s device until the date of surgery.  Id. at *20. If this were true, then she would have beaten the statute by two days. But the judge wasn’t buying it. Explaining that “as soon as, through the exercise of reasonable diligence, the injured party should be able to link her injury to the conduct of another, the clock begins to run,” id. at *23-24, the court held that the plaintiff “knew or should have known that the [defendant’s device] was a factual cause of her injury by the time she decided to proceed with hip revision surgery on January 30, 2015.” Id. at *26. In other words, “once [the plaintiff] knew for certain that [her doctor] needed to remove the [device], she had received enough facts to make the connection between her injury” and the device, and “no reasonable juror could conclude otherwise.” Id. at *27. Nor was the court swayed by the plaintiff’s argument that, even if she knew that the device was causing her symptoms, she did not know it was “defective” until it was removed. The court emphasized, “This misstates the legal standard,” which required only that the plaintiff connect her injuries to the device to start the clock running on her claims. Id. at 31. Finally, while the court acknowledged that the plaintiff hadn’t missed the running of the statute by much, and that granting summary judgment would deny the plaintiff recourse for serious injuries, it held that it could not “arbitrarily enforce the statute of limitations,” however sympathetic the plaintiff, and that it was “constrained to grant the motion for summary judgment.” Id. at *33-34.

We have been on the receiving end of all of the arguments the plaintiff made in Adams. And we have fought – not always successfully – for decisions that apply the law rigorously and aren’t swayed by sympathy. We are pleased that the Adams court did just that.

This weekend, we are traveling to Nashville, where, decades ago, we lived for a couple of years during a period of wanderlust. Nashville was to be a brief stop-off on a cross-country driving odyssey.  But we never got any farther down the road, leaving Nashville only to reverse course and return to college (to our parents’ great relief).  All these years later, a huge part of our heart still lives at the intersection of Interstates 40 and 65, and we journey back as often as we can to visit friends we’ve treasured for as long as we can remember.  The town has changed, to be sure.  The tiny radio station on the hill, where we sat with a dear and now-departed friend during his late-night country music show, no longer broadcasts.  There is a pro football team now.  Buildings and highways and traffic have multiplied exponentially.  And the old Ryman Auditorium, the “mother church of country music” and original home of the Grand Old Opry, has been reborn as a concert venue.  (From the balcony of the current Opry House, looking down on the stage, patrons can see a large circle of wood that doesn’t match the rest of the floor.  This was taken from the Ryman when the new Opry House was built, to harness some of the sacred energy of that hallowed old place.)

But with all that has changed, going back still feels like going home, and the city still feels sweet and familiar, but with a twist. As does today’s case, a familiar-feeling statute of limitations decision except for the twist created by the very modern context of prescription drug addiction.  In Allen v. Indivior, Inc., 2018 U.S. Dist. LEXIS 134279 (N.D.N.Y. Aug. 9, 2018), the plaintiff, a college student and aspiring investment banker, became dependent on a narcotic pain-killing drug after a car accident.  In an attempt to wean him off of the painkiller, his doctor prescribed a drug used as replacement therapy to treat painkiller dependency.  He took the replacement drug daily for twenty months, until, his Complaint alleged, he became “completely addicted” to it.  He tried to stop using the drug and enrolled in an in-patient program to help him deal with his withdrawal symptoms.  After twenty-one days, he went home to his family, where, a short time later, he overdosed on heroin and died.   His parents sued the replacement drug’s manufacturer, asserting the usual product liability causes of action and alleging that, because of his addiction, “the only way” the plaintiff could treat his withdrawal “was with heroin.”  The defendant moved to dismiss, asserting improper venue/lack of personal jurisdiction and statute of limitations arguments.

First, the court held that venue was not proper in the Northern District of New York; instead, the case should have been filed in the District of Connecticut. The court cited 28 U.S.C. § 1406(a) for the proposition that it could, in its discretion, either dismiss the case or transfer it to the correct district.  While transfer is generally favored, the court quoted the great Judge Posner for the proposition that, if “a case [will be] a sure loser in [the correct court], then the court in which it is initially filed . . . should dismiss the case rather than waste the time of another court.” Allen, 2018 U.S. Dist. LEXIS 134279 at *8-9 (citation omitted).   And so the court proceeded to determine whether the case was a “sure loser” on statute of limitations grounds.

The court explained that, under Connecticut’s three-year statute of limitations, the plaintiff was required to serve the Complaint – not just file it – within three years after he could first attribute his injuries to the defendant’s conduct. The defendants argued that the plaintiff’s claims were time-barred because the injury at issue was the plaintiff’s addiction to the replacement drug, and that the plaintiff was aware that he was “completely addicted” to the drug – and entered the in-patient program as a result – more than three years before the complaint was even filed.

The plaintiffs argued that that the triggering event was the plaintiff’s death, not his addiction, and, adding facts they had not pled, they argued further that the cause of death was not determined until the autopsy report was issued and the toxicology results were returned, all within the three-year limitations period. The court disagreed, holding that the gravamen of the complaint was the claim that the defendants’ alleged negligence in designing and labeling the drug caused the plaintiff’s “crippling addiction,” and that the plaintiff knew he was addicted — and sought treatment for his addiction – well over three years before the Complaint was filed or served.   Even if the plaintiff’s claims did not accrue until the date of his death, the court pointed out that the defendants had not been served with the complaint three years after that date.  The court rejected the plaintiffs’ argument that an e-mail purportedly sent to one of the defendants on the three-year anniversary of the plaintiff’s death placed the defendant on “constructive notice” of the impending service of the Complaint.

And so, this “sure loser” of a case was dismissed, not transferred. We expect to see more cases arising in the context of prescription drug addiction and more  “grey areas” related to when claims accrue in that context.   We will keep you posted on this new “twist” in statute of limitations law.  And we’ll have a drink for you this weekend in Tootsie’s Orchid Lounge, across the alley from the old Ryman, fifty-eight years old and going strong.

We have an adorable, pigtailed, toddler grand-niece. We play a game with her that involves placing one building block on the table and asking her how many blocks there are.  She answers, “One.”  We take that block away and replace it with another.  Again, the answer is “one.”  Then we place both blocks on the table and ask, “How much is one plus one?”  As brilliant as she is beautiful, she answers, “Two!”   Simple, right?  But those of us who practice in the mass tort space are far too accustomed to reading opinions laying out the building blocks of an obvious holding then failing to conclude that one plus one equals two.

Not so the lovely opinion on which we report today. In Young v. Mentor Worldwide LLC, 2018 WL 2054591, — F. Supp. 3d — (E.D. Ark. May 1, 2018), the plaintiff was implanted with the defendant’s sub-urethral sling in 2003 to address her stress urinary incontinence.  In two subsequent surgeries, in 2006 and 2008, portions of the sling were removed.   In 2013, more than five years after the last revision surgery, the plaintiff filed suit, asserting all of the usual claims and alleging permanent injury from the defendant’s product.

Because Arkansas law, which governs the plaintiff’s claims, imposes a three-year statute of limitations on product liability lawsuits, the defendant moved for summary judgment, alleging that the plaintiff’s claims were time-barred. The court denied the motion, finding a question of fact as to when the plaintiff’s cause of action accrued under the applicable discovery rule.

Motion to Bifurcate Trial

Flash forward to the eve of trial. Arguing that resolution of the statute of limitations defense would require only a few witnesses and would likely take only two days, the defendant asked the court to bifurcate the proceedings in a novel manner, holding a preliminary trial on the statute of limitations and moving on to a full trial on the merits of the plaintiff’s claims only if necessary.  The plaintiff opposed the motion, arguing that resolution of the statute of limitations issue would require admission of evidence of the defendant’s alleged fraudulent concealment and that a single jury should resolve all of the issues at the same time.

The court disagreed, holding,

Regardless of whether the [plaintiff is] entitled to pursue a fraudulent concealment claim, [the defendant’s] statute of limitations defense is potentially dispositive, and preliminary trial will not consume the time and expense necessary for a trial on the merits.  The Court finds that a separate, initial trial on the statute of limitations question is especially warranted in this case, as it will promote judicial economy, avoid confusion of the issues, and prevent possible undue prejudice.

Young, 2018 WL 2054591 at *2.

Motions to Exclude Expert Testimony

The defendant also moved to exclude the testimony of two of the plaintiff’s experts, a biomedical engineer and a pathologist.

Biomedical Engineer

The biomedical engineer sought to testify about the mechanical structure of the defendant’s product “and to offer his opinion that the design and testing of [the product] was inadequate, that the product was defective for its intended use, and that [the defendant] failed to warn about the significant risk of complications and adverse events from the use of the product.” Id. at *3.  The defendant moved to exclude the expert’s testimony about the adequacy of the warnings, arguing that the expert was not qualified to offer such opinions.  The court agreed, holding, “The record is void of information indicating that [the expert’s] expertise in the area of biomedical engineering and product design qualifies him to opine as to the adequacy of warnings at issue or that his opinion on this ultimate issue of fact would be helpful to the jury.” Id.

The expert’s report also included statements to the effect that the defendant was “fully aware” of a high rate of complications associated with the product. The defendant moved to exclude these statements on the ground that they were inadmissible expressions of “corporate intent and legal conclusions.”  Again, the court agreed, holding, “The Court finds that a jury is capable of making its own determinations as to [the defendant’s] intent, motive, or state of mind, and that [the expert’s] opinion on these subjects does not meet the helpfulness criteria of Rule 702.” Id. (citation omitted).


The pathologist’s report stated that his general causation opinions were “based on his review of over 300 explanted mesh samples, which include[d] hernia meshes, pelvic organ prolapse meshes, and slings used to treat urinary incontinence.” Id. at *4.  He acknowledged that only ten of the 300 samples he examined were manufactured by the defendant, and those were samples he received from plaintiffs’ attorneys.

The defendant argued that the expert’s opinions about other types of mesh and other manufacturers’ products were irrelevant and unreliable. In deposition, the expert testified that “all of this background” was necessary to “interpret accurately case-specific material.”  The court disagreed, holding, “The Court finds that neither [the expert’s ] explanation nor [the plaintiff’s] arguments demonstrate that information about various types of polypropylene mesh products . . . is relevant in this case, which deals with a specific mesh product, used for a specific purpose.” Id. Further, the expert “admit[ted] that he [had] no knowledge as to how the mesh implants he has examined were selected, thus there is no assurance that they were randomly selected and no way of projecting the potential rate of error.” Id. The court concluded, “After careful review, the Court cannot find that [the expert’s] proposed opinion testimony is the product of reliable principles and methods, and [the defendant’s] motion to exclude will be granted.

We love this opinion – logical, correct, and elegant in its simplicity. We hope that others follow suit, and we will keep you posted.

We don’t often get to discuss decisions from Maine. In fact, a quick spin through the blog and you’ll see Maine really only comes up in various canvases or surveys of state law. We don’t dislike the state. We love the lobster — that they take very seriously. We can’t say we love the winters there (at least this blogger doesn’t), but the coastline is beautiful in summer. And perhaps our vision of Maine is just ever so slightly skewed by Stephen King having set so many of his horror novels there. While King’s frightening tales are set in fictional towns, avid readers and explorers have suggested that you can visit several real places in Maine that seem to have inspired King’s work. For instance, if you’re looking for Derry, you want to stop in Dexter, Maine (mind the sewers). If you are more of a Cujo or Needful Things fan, Castle Rock is supposedly based on Woodstock, ME. You won’t find a giant dome in Rumford, but you’ll probably notice its otherwise close resemblance to Chester’s Mill (Under the Dome). And finally, there is King’s hometown of Bangor which is rumored to be the inspiration for the town of Haven from The Tommyknockers.

So, we were quite pleased when Dustin Rawlin and Bill Berglund of Tucker Ellis sent us their recent, far from creepy, win from the 23rd state. The case is Novak v. Mentor Worldwide LLC, 2018 WL 893914 (D. Maine Feb. 14, 2018) and the primary issue is statute of limitations. Statute of limitations cases are also not something we spend too much time on here, but this one has a notable ruling specific to prescription medical products liability cases – the discovery rule does not apply.

In 2004, plaintiff underwent surgery during which defendant’s product, a vaginal sling, was implanted to treat stress urinary incontinence. Id. at *1. Around 8 months to 1 year after the surgery, plaintiff started to experience pain during intercourse and by the end of 2006 was experiencing vaginal leaking and bleeding. Id. at *2. Before the end of 2006, plaintiff informed her surgeon of her problems. He ordered tests, the first round of which were inconclusive and plaintiff failed to undergo furthering testing. Id. In 2013, plaintiff attributed her problems to defendant’s product which was partially removed in another surgery in 2014. Id. Plaintiff filed suit in 2016. Id. at *1.

Maine’s statute of limitations for all civil actions is 6 years from when the cause of action accrues. Id. at *3. Further, Maine follows the date-of-injury rule when it comes to accrual. “[M]ere ignorance of a cause of action does not prevent the statute of limitations from running.” Id. In other words, generally Maine does not apply the “discovery rule” to determine when the statute starts to run (in states that do, a claim does not accrue until the plaintiff discovers or should have discovered the wrongdoing or misconduct). There are, however, exceptions where Maine has expressly applied the discovery rule: legal malpractice, foreign object and negligent diagnosis medical malpractice; and asbestosis. Id. General products liability claims not included.

Maine has also acknowledged the continuing tort doctrine where the alleged tort occurs over a series or chain of incidents. In such cases, the claim would not accrue until the last act in the chain – such as cases of pollution or contamination. Id. at *4. The continuing tort doctrine does not apply in cases where plaintiff’s alleged injuries, while occurring or perhaps worsening over time, are allegedly caused by a single act of negligence. Id.

Because plaintiff filed suit in 2016, her claims are time-barred if they accrued before 2010. As we noted above, her surgery was in 2004 and her complications appear to have started within the first year thereafter. So, unless the court applied the discovery rule, her claims would be barred.

Plaintiff’s first argument was that the presence of the defendant’s medical device in her body constituted a continuing tort that didn’t end until the product was removed in 2014. Id. at *5. But the continuing tort doctrine isn’t about continuing harm. What plaintiff here, or in almost any drug or device products liability case is alleging is a “finite act or set of acts (manufacture, design, inadequate warning, or misrepresentation) that led to her injuries.” Id. Once the device was implanted, the alleged wrongful act was over.

[Plaintiff] underwent only one, readily-identifiable exposure to the [device] (her surgery), and all of [defendant’s] allegedly tortious conduct took place before that point. . . . [defendant’s] wrongful conduct may have caused the [device] to deteriorate, which in turn may have caused injuries over time. However, once those injuries had manifested, the fact that their full scope remained unknown did not stop the statute of limitations from running.

Id. at *9, n.6.

Plaintiff’s second argument was that there was a genuine dispute regarding whether her earlier symptoms, pre-2006, were caused by the defendant’s medical device. Perhaps plaintiff should have thought of that argument before submitting an expert report tying those early symptoms to the medical device. Id. at *6. Nor could plaintiff rely on her surgeon not identifying a connection between the device and her symptoms when his tests were only inconclusive and plaintiff opted not to do further testing. Id. For a jury to conclude that plaintiff’s early injuries were not caused by defendant’s product would require “complete speculation.” Id. The statute started to run when plaintiff first experienced symptoms, regardless of how minor those symptoms were. Id. at *9, n.7.

While the statute of limitations did away with almost all of plaintiff’s claims, her fraud based claims remained. On those, as well as any other claim based on a failure to warn, defendant argued plaintiff failed to meet her burden to prove causation – plaintiff had no evidence that a different warning or information would have changed her surgeon’s decision to implant the device. Id. at *7. First, it is noteworthy that the court applied the learned intermediary doctrine. Id. at *8. Maine’s high court has never discussed the rule. The court relied on other federal courts interpreting Maine law on the issue.

So, applying the learned intermediary, the court’s focus correctly shifted to plaintiff’s surgeon. Plaintiff did not dispute that her doctor was aware of various risks, including those experienced by plaintiff. Id. Instead, plaintiff’s tried to meet their causation burden by arguing that the doctor “may very well have decided” not to implant the device if he had been provided different warnings. Id. But, that is either an unsupported fact or mere speculation and neither are evidence. Id. Plaintiff next showed the court some medical literature concerning the risks of the medical device and the doctor’s deposition transcript. But offered no connection between the two.

[The doctor’s] deposition transcript reflects that [plaintiff’s] counsel failed to ask him whether additional information would have altered his decision to go ahead with [plaintiff’s medical device] surgery.

Id. at *9. While not discussed directly in the opinion, requiring affirmative evidence that the doctor would have changed his use of the product for plaintiff to survive summary judgment is certainly an implicit rejection of the heeding presumption. Nor was it defendant’s obligation to ask these questions at the doctor’s deposition. Id. at *9, n.14.

So, while Maine may more quickly bring to mind images of butter poached crustaceans or mysterious floating red balloons, it’s not a bad place for prescription medical products cases either.

We thought we understood statutes of limitations and choice-of-law rules in New Jersey.  Until yesterday.  That was when we read the New Jersey Supreme Court’s opinion in McCarrell v. Hoffmann-La Roche, Inc., No. 076524, 2017 WL 344449 (N.J. Jan. 24, 2017), which unhinged that state’s statute of limitations and choice-of-law jurisprudence from its own precedent and placed statutes of limitations in a special class without much explanation.  And the court did all of this for the stated purpose of preserving plaintiffs’ claims and not “discriminating” against an out-of-state plaintiff’s ability to sue a New Jersey company in New Jersey, after the suit would be barred in the plaintiff’s home state.

How did we get here? Well, this is a New Jersey Accutane case, which tells you that it was contentious, as most things seem to be in that multi-county proceeding.  Other than that, the facts in McCarrell are fairly typical—an out-of-state plaintiff (in this case a fellow from Alabama) who was prescribed a drug in his home state, used the drug in his home state, experienced alleged complications in his home state, and received medical treatment in his home state sued the drug’s manufacturer where the company is incorporated—in this case, New Jersey. McCarrell, at *3.

The rub in McCarrell was that the plaintiff’s claim was time barred under Alabama’s statute of limitations, but not under New Jersey’s statute of limitations, which includes a discovery rule.  The choice of law therefore determined the outcome, which led the parties to contest the issue hotly in the trial court, the intermediate appellate court, and eventually the New Jersey Supreme Court.

Each court applied different rules, which is why this case is so interesting and why the Supreme Court’s opinion is so odd. We have long understood that the choice of forum does not determine the applicable substantive law.  Sure, the forum’s procedural law applies, but the substantive law is determined by applying the forum state’s choice-of-law rules.

Continue Reading New Jersey Supreme Court Turns Back The Clock on Statute of Limitations

As we head into December, there is quite a bit of attention being paid to when sales start, when shipping occurs, and when gifts are given.  Were one concerned with such an inquiry, one might imagine a few different points in time when gifting might commence.  For purposes of our space-filling exercise, assume the putative gift is tangible, labeled to identify the intended recipient, wrapped such that it must be opened to reveal its contents, and left in a place where the intended recipient is expected to retrieve it.  Has gifting commenced when the giftor leaves the gift in this place, even if it might be removed before the giftee assumes possession?  Need there be some last clear chance when the gift can no longer be removed or replaced with something else before the giftee claims it?  Must there be a direction like “open it” to signal an exchange?  What if the gift has labeling that states that it cannot be opened for another six weeks or so?  If the “gift” is merely a box containing a note that an actual gift will be forthcoming, then was there a gift at all?  What if we droned on and on?

Goldthrip v. DePuy Orthopaedics, Inc., __ Fed. Appx. __, 2016 WL 6933450 (11th Cir. Dec. 28, 2016), involves these exact same issues if one can consider a product liability lawsuit a gift and an Alabama courthouse a suitable place for receiving such a gift.  In Goldthrip, the plaintiff alleged that her implanted prosthetic hip manufactured by defendants injured her on December 25, 2013.  As this was a day when many Alabamians were exchanging gifts, we can guess that the timing of the injury was easy to identify.  The plaintiff filed her case on December 23, 2015, two days before the statute expired and another day of mass gifting.  Her complaint, however, came with a curious note, indicating that she was “‘withholding service of process’ in an effort to avoid expenses and facilitate settlement discussions.” Id. at *1.  The complaint was served on the defendant (without a summons) a week later, a summons was issued about six weeks after that, and the defendant was served with the summons sometime later.  (If you are wondering, Fed. R. Civ. P. 4(c) provides that “A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.”  Service of the summons and complaint together, absent waiver, is necessary to get things started in federal court.)

Continue Reading Dispensing With Commencing: A Statute of Limitations Gift

As we hurtle into the holiday season, we are reminded that good things often come in small packages. That certainly was the case in a one-and-a-half-page opinion that the Ninth Circuit filed last week in a prescription antidepressant case.  The case is Plumlee v. Pfizer, Inc., No. 14-16924, 2016 WL 6610223 (9th Cir. No. 9, 2016), and the lesson was that the statute of limitations can be a powerful thing.

The facts are pretty simple: The plaintiff alleged that she stopped taking Zoloft in June 2008 because she believed it was ineffective “contrary to [the manufacturer’s] representations.”  But she did not file her class action lawsuit until more than four years later. Id. at *1.  That sounds to us as though the plaintiff filed after the expiration of any applicable statute of limitations, and it sounded that way to the district court too, leading to an order dismissing the case.

The Ninth Circuit affirmed, holding that California’s discovery rule did not extend the plaintiff’s time to sue. The core holding is as follows:

Under the discovery rule, [Plaintiff’s] failure to allege any facts that she exercised reasonable diligence between June 2008 and May 2012, or that she was unable to discovery the factual basis for her claims between June 2008 and May 2012 despite exercising reasonable diligence, constitutes a sufficient basis for affirming the district court’s dismissal with prejudice . . . .”

Id.  This may seem like a routine result at first blush, but let’s unpack this a little bit.  First, we find it interesting that the district court dismissed the plaintiff’s complaint under Rule 12(b)(6).  We do not often see courts ruling on statutes of limitations on the pleadings, although there is no reason why discovery should be necessary when the defense is evident on the face of the complaint.  Here, the plaintiff alleged that she believed the product was ineffective in June 2008 despite “representations to the contrary.” Id.  In other words, she suspected wrongdoing, which caused her claim to accrue under any application of the discovery rule.  From that point, the clock was ticking.

Continue Reading Don’t Underestimate the Statute of Limitations