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
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.
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.)
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.
Today’s case is also about statute of limitations, but we thought adding that to the title would guarantee nobody read any further. None of these are what we’d call “page-turning” – or maybe in the blog world it should be “scroll-worthy” — topics. But, any one of them can be a game changer. When they combine to lead to a dismissal in circumstances that our readers may find themselves in, we think they are worth a mention. But we’ll make it quick.
As is so often the case, plaintiffs’ counsel gathered their clients and filed a single mass action lumping together plaintiffs from all over the country. Jaeger v. Howmedica Osteonics Corp., 2016 U.S. Dist. LEXIS 16493 at *7 (N.D. Cal. Feb. 10, 2016). The defendant, again in a fairly common response, moved to sever the individual misjoined cases and to transfer them to plaintiffs’ home districts. Id. at *8. Defendant’s motion was granted. The original misjoined complaint was filed in the Southern District of Illinois. Defendant is a New Jersey corporation. Plaintiff Jaeger resides in California, where she also received the medical treatment at issue in the case. Id. at *17. Plaintiff Jaeger’s case was therefore transferred to California.
This post is from the non-Reed Smith side of the blog.
We do have two opinions to talk about, they’re just from the same case. They are the magistrate’s Report and Recommendation and the district court’s subsequent ruling in Lyles v. Medtronic, Inc. This is the latest Infuse victory but it’s not all about preemption this time. There’s a little statute of limitations, a little statutory exclusivity, some judicial notice, and of course a bit of preemption. We’ll break it down for you.
Plaintiff underwent spinal surgery on May 10, 2013. On February 6, 2014 he began to suffer from complications that necessitated a revision surgery. Plaintiff alleges that on February 13, 2014 he was told by his doctor that the plate used in his surgery had failed. Lyles, 2015 U.S. Dist. LEXIS 175042 at *1-4 (W.D. La. Nov. 23, 2015) (Report and Recommendation (“R&R”). Then plaintiff started filing complaints. He first filed on February 10, 2015 alleging products liability claims against Medtronic, Inc. He amended his complaint with additional knowledge gained on May 8, 2015. He filed a second amended complaint substituting Medtronic Sofamor Danek USA, Inc. for Medtronic, Inc. on June 11, 2015. At this point, Medtronic, Inc. is no longer a defendant. Id. at *4. Plaintiff still wasn’t done. He filed a third amended complaint on July 17, 2015 asserting claims for fraud and violation of the Louisiana Unfair Trade Practices Act against both Medtronic Sofamor Danek USA, Inc. and Medtronic, Inc. Id. at *5. That’s four complaints and none of them were sufficient to survive a motion to dismiss.
As to Medtronic, Inc. plaintiff’s claims were time-barred. The allegations in the third amended complaint didn’t related back to the original filing. Medtronic, Inc. may not have been an entirely new party, but the allegations against it are. Fraud and consumer protection violations were not alleged in the original complaint – “they do not arise out of the same occurrence previously set forth as those were all products liability claims and cannot relate back.” Id. at *7. Plaintiffs also argued that the Medtronic defendants were solidary obligors and therefore the statute of limitations was stayed from the original filing date. But without an allegation of conspiracy, this argument was without merit. Id. at *6-7.
We spent the past weekend in Cleveland, visiting a dear law school friend of whom we see much too little. Cleveland deserves more press as a travel destination. It boasts beautiful architecture, (including spectacular bridges, like the Detroit-Superior Bridge over the Cuyahoga River), reasonable prices, and the Cleveland Clinic. It is also home to the world-class Cleveland Symphony and the renowned Cleveland Museum of Art. But (not surprisingly, for regular readers of our posts) our most memorable afternoon was spent in that mecca of popular culture, the Rock and Roll Hall of Fame. We had to be dragged away from the continuous loop of induction ceremony highlights. We gleefully donned headphones and entered a simulated recording booth, where we “laid down the harmony track” over a melody line sung by a popular artist. We stared at Elvis’s army uniform and the sheet of paper on which Neil Young first jotted the lyrics for “Heart of Gold.” But we were most captivated by a room-size exhibit devoted to one of our personal idols, Graham Nash, a two-time Hall inductee (with the Hollies and with Crosby, Stills and Nash), onetime Joni Mitchell cohabitant, and author of a song in serious contention to be our all-time favorite, the folk-y classic “Teach Your Children.” (In a minute, we will find a way to tie this, however tenuously, to something legal. We make no such attempt with this link to a lovely moment from the 2007 American Idol finale, on which Nash sat on a stool with an acoustic guitar and performed this song with an Idol finalist.)
Nash is an intelligent, socially-conscious man of diverse talents that include painting and photography. Among the tidbits revealed in the headphone-accessible interview clips interspersed throughout the exhibit was the fact that he is also a serious collector of memorabilia. He seeks to acquire items that capture the seminal moments of significant political and musical events. (For example, his collection includes a piece of the fence that rings the grassy knoll in Dallas.) In today’s case (see – we told you!), a minor cautionary tale from the Mississippi Supreme Court, the seminal moment in the demise of the plaintiff’s case occurred 120 days after she filed her First Amended Complaint. While rock-and-rollers can often flout the rules, it’s always a good idea for lawyers to follow them, as this case demonstrates.
In Meeks v. Hologic, Inc., 2015 Miss. LEXIS 610 (Dec. 17, 2015), plaintiff initially sued a physician and a medical center for injuries she had allegedly sustained two years earlier during outpatient gynecologic surgery. Both defendants answered the Complaint. Two years and 363 days after she discovered her injuries (this becomes important, because Mississippi has a three-year statute of limitations), with leave of court pursuant to the Mississippi rules, plaintiff filed her First Amended Complaint (“FAC”) adding Hologic, manufacturer of a device used in her surgery, as a defendant, and adding warranty claims against all defendants. Plaintiff served the doctor and the medical center with the FAC, but never served the FAC upon Hologic. Neither the doctor nor the medical center answered the FAC. (This was also important in the plaintiff’s mind, but it wasn’t really.)
Recently, Bexis attended the DRI drug and device committee spring conference. Among other things he heard a bang-up presentation on genomics and personalized (also known as “precision”) medicine from Paige Sensenbrenner. On that same day, co-blogger Steve Boranian alerted Bexis to a new defense argument in asbestos/mesothelioma cases that also utilizes genomics – certain mutations in a gene called “BAP1” – to identify persons at greater risk of idiopathic (that is, not related to asbestos) mesothelioma. Here’s a link to that article. A verifiable alternative cause could be a game-changer for asbestos litigation. The statement we quoted back in 2009, uttered by the first person ever to have his genome individually sequenced, that “individual genes are just not very informative,” appears in the process of being disproven by ongoing scientific events.
Both items, as informative as they were on scientific facts, were rather short on the law. That’s where we come in. We thought we’d take a look at what law exists concerning the intersection of pharmacogenomics, personalized medicine, and prescription medical product liability litigation. We’ve touched on these issues back in 2011, when we blogged about Mills v. Bristol-Myers Squibb Co., 2011 WL 4708850 (D. Ariz. Oct. 7, 2011), one of the first cases in which the plaintiff made allegations about pharmacogenomically-based risks. Back then we said:
The plaintiff is claiming that a drug is defective, not because of anything inherent in the drug itself, but solely because it is less effective (and therefore has a different risk-benefit profile) due to the plaintiff’s peculiar genetic makeup. Essentially, the allegations seek to impose a non-FDA-approved contraindication, using state law, based upon human genetic variability. With advances in computer technology making genetic testing exponentially cheaper and more detailed as times passes (see Moore’s law), more and more genetic variability in the efficacy of prescription drugs is bound to be discovered. Eventually – certainly within some of our lifetimes – we’ll be able to carry our entire individual genetic code around with us on a chip, should we so choose….
The complaint in Mills is a bare genetic susceptibility claim, frankly based on an allegation of “variant” genetic characteristics shared by only a minority of the population. In our view, unless and until – and only to the extent that – the FDA decides to assess drug approvals and contraindications on the basis of genetic subgrouping, this type of tort claim should not be recognized, because it is flatly contrary to the criteria by which the intended uses of drugs are currently determined. Claims such as in Mills, which are at loggerheads with FDA criteria for drug development, are precisely those with the most potential for making pharmaceutical manufacturers into “sitting ducks” for litigation, in this instance litigation based on extraneous genetic factors.
It may well be that the coming (and to some extent existing) revolution in genetically individualized medical therapy will require changes in how drugs are evaluated, labeled, etc., but this is a singularity-driven issue that needs to be addressed by the policy branches of our government, and not haphazardly in product liability litigation.
The time for Mad Men is almost over. Next Sunday is the finale, and we can hardly stand the thought that our tv screens will no longer harbor Don Draper, his predatory, boozing advertising colleagues, his aggrieved family, and all those random acquaintances who either wanted to love Don or beat him about the head with a telephone book. There has been a lot of speculation about how the show will end. Chief among the theories is that, consistent with the opening titles imagery of a man falling, Don will exit through a skyscraper window. A crazier notion is that Don will end his latest On the Road odyssey by becoming the notorious 1971 hijacker DB Cooper. But as the great tv critic Alan Sepinwall pointed out, when the last notes of the title song fade, Don ends up safely in a chair, with the inevitable cigarette tucked in his right hand.
A couple of weeks ago the episode was called “Time and Life.” The ad agency had been gobbled up by a much bigger agency, and was being forced to move out of its offices in the Time/Life building. “Time and Life” sounded suspiciously to our ears like Martin Heidegger’s Sein und Zeit (Being and Time), a big, forbidding book that birthed existentialism. When Heidegger wasn’t busy canoodling with Hannah Arendt or cheerleading for the Nazi party, he wrote perhaps the preeminent work of 20th Century philosophy. He said that we are thrown into the world, are baffled by our existence and its impending end, and struggle for authenticity under the vast indifference of the skies. If there is anything about Sartre that you thought was insightful or cool, odds are that he cribbed it from Heidegger. Anyway, Heidegger had a phrase for people who departed from authenticity. The English translation for the original German word is “falling.”
But any connection with our junior year class on The Political Philosophy of Marx, Nietzsche, and Heidegger (the class was taught by
Harvey C. Mansfield, and he ended up concluding that those three German philosophers were brilliant but wrong and, worse, irresponsible, because their writings supported the most murderous regimes of our time) is not why Mad Men matters so much to us. More than any other of the ‘difficult men’ shows of the current Golden Age of TV, Mad Men is relevant to more than our jiggling neurons. We don’t kill people or cook meth, so The Sopranos and Breaking Bad seem diversionary by comparison. Mad Men is about things we do do: persuade people, muck up personal relationships, and drink whisky on school nights. Moreover, because of its 1959-70 setting, Mad Men feels like a conversation with our parents that we were never able to have. They had lived through the depression and then found themselves in the midst of a nutty American hegemony that could be easy, cruel, fun, and wildly unfair all at the same time. There was a lot to admire about that generation and a lot to make you shake your head in fury. But one way or another, they were ours. Maybe Mad Men will end by taking a stab at the same questions that drove so much of the action in The Sopranos and Breaking Bad: Can people learn? Can they change? In The Sopranos, it seemed that Tony Soprano never really could change, no matter how much he could goofily appropriate the language of psychology. In Breaking Bad, Walter White certainly did change. The creator of Breaking Bad, Vince Gilligan, famously described the arc of the show as taking Mr. Chips and turning him into Scarface. People can get worse. Perhaps on Sunday Don Draper will emulate the original Odyssey by finally going home and doing right by his family. That would be something of a surprise, since the creator of Mad Men, and the writer and director of the finale, Matt Weiner, wrote some of the darker episodes of The Sopranos.
But even writers learn and change. The title of the Mad Men finale is “Person to Person.” That title incites optimism in our scurvy soul. We bet Weiner and Don stick the landing.
Today’s case is a straightforward one with a good result, and there is some learning to be had from it. It is about one issue that we love to discuss, preemption, and one that we do not say so much about, statute of limitations, because that issue is usually so fact-specific. The case is called Williams v. Ciba Vision Corp., 2015 WL 1903429 (S.D. Mississippi April 27, 2015). The plaintiff received a replacement lens during cataract surgery in 1999. Over the next couple of years, the plaintiff experienced problems with the lens, including infections, pain, and an inability to see. But it was not until 2012 that the pain became so severe that the plaintiff underwent an extraction of the lens. Testing on the lens confirmed the existence of a foreign substance. The plaintiff filed suit in 2013 and alleged that the defendant deviated from an FDA-approved manufacturing process and thereby permitted biofilm formation on a majority of lenses.
Today’s date is rich in literary history. It is the birthday of Vladimir Nabokov, one of two writers whose prose style makes us want to snap our Pilot Varsity pens in despair, so great is the gap between those authors’ mastery and our pedestrian scribblings. Perhaps the biggest laugh-out-loud moment a book ever gave us was from Lolita, when the Humbert character travels a long way to visit a family that has at least one member he is especially, um, interested in, only to be greeted at the train station by the patriarch, who shared “the news that his house had just burned down – possibly, owing to the synchronous conflagration that had been raging all night in my veins.”
Today is also the birthday of Henry Fielding, the great British novelist of the 18th century. In high school we were forced to read Joseph Andrews and Tom Jones, and we grumbled about it, especially upon getting a peek at the girth of Tom Jones (we mean the book). But the joy, wisdom, and energy of Fielding’s words, often propelling the most ribald adventures, converted our dread into a wholly unforced pleasure, indeed. There is a sentence in Tom Jones that stopped us abruptly in our tracks. Fielding on many occasions spoke directly to the reader, and at one point he explained his intention to “fill my pages with humour till mankind learn the good nature to laugh only at the follies of others and the humility to grieve at their own.” Has any writer ever articulated a more noble goal?