Statute Of Limitations

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?


Continue Reading Maryland, My Maryland: Aldara Case Dismissed for Multiple Reasons

We do not devote a lot of space to statute of limitations cases.  That is not because they are unimportant.  To the contrary, statutes of limitations serve fundamental principles of fairness and predictability.  Parties should not have to worry about litigations springing up well after the operative events occurred, and well after witnesses, or their memories, have departed.  But statutes of limitations are inherently fact- and jurisdiction-specific.  Thus, it is not always easy to tease some principle of general applicability and interest out of those cases.

But you just know that we’re about to tease such a principle out of a statute of limitations case, don’t you?  In most tardily-filed cases, we are greeted by an assertion that the discovery rule should come to the rescue because the defendant hid the truth, polluted the information environment, and prevented the plaintiff from filing earlier – that is, within the statute of limitations.  That argument is almost always unadulterated hogwash.  A federal judge in California recently did a thorough and elegant job of demolishing that argument.  We could not resist sharing it with you.

In Plumlee v. Pfizer, Inc., 2014 U.S. Dist. LEXIS 121634 (N.D. Cal. August 29, 2014), the plaintiff brought a class action alleging that Zoloft did not work for her, and she wanted her money back.  That’s only a slight oversimplification of the case.  Various California statutes – the usual suspects — were invoked.  This case, to our cynical noses, smells like an effort to concoct a no-injury class action that would do more good for the attorneys than the litigants.   No matter.  It was filed too late.  The plaintiff last purchased Zoloft or its generic equivalent in June 2008.  She filed her class action lawsuit on January 30, 2013, which is four years and seven months after her claims accrued.  The longest applicable statute of limitations was four years.  The math is simple, and the math means that all of her claims are time barred.

How to get around that pesky statute of limitations? The plaintiff said that she did not discovery the defendant’s alleged misrepresentations and omissions regarding Zoloft’s efficacy until on or about May 22, 2012, when she watched a 60 Minutes segment regarding the placebo effect and depression.  Before that, the plaintiff dwelled in ignorance, as she “did not see any media, journal articles, press releases, websites, letters, or statements concerning Zoloft and its ability to outperform placebo in treating depression.”   Plumlee, 2014 U.S. Dist. LEXIS 121634 at *11.  The problem for the plaintiff is that the delayed discovery rule benefits only plaintiffs who can show that they acted reasonably and diligently in preserving their rights.  The court had dismissed the original complaint in this case, but granted leave to amend, insisting that the plaintiff show her diligence.  Did she manage to do that?  She did not.


Continue Reading Later is not Better than Never

This post is from Bexis:

In a decision reflective of how attorney solicitation dredges up bad cases that should never have been filed, a New Jersey appellate court has handed the defense three wins in its Accutane litigation involving inflammatory bowel disease (“IBD”).  Gaghan v. Hoffman-La Roche, Inc.,Nos. A-2717-11T2, et al., slip op. (New Jersey Super. A.D. Aug. 4, 2014)Gaghan involved three appeals, two from defense verdicts and one from a plaintiff’s verdict, affirming the defense wins and reversing the one adverse verdict.  The trial had been something of a circus – three unrelated Accutane plaintiffs’ cases tried together.  All three plaintiffs were litigation tourists from California, so that state’s law applied, which is probably why the decision is unpublished.  It certainly is detailed enough to be published, had it not been one state’s courts opining on the law of another state.


Continue Reading Accutane Triple Win in Jersey

It’s about time we got a Summer movie worthy of adult eyes.  Roger Ebert called the cinema a “machine for generating empathy.”  (The Life Itself biopic of Ebert is out now in theaters and available at home on demand.)  Not much empathy washes over us as we turn our eyes to Transformers or superheroes. All those explosions and flattened cities leave us feeling tired and hopeless, or feeling nothing at all.  Those films are about nothing.  The celluloid – or, more likely, the digital 0’s and 1’s – are full of sound and fury, signifying … well, you know.  It is life itself that offers thrills, mystery, and passion.  Where is that in the midst of the inevitable June-July CGI orgy?

It’s about time we got something to look at that said something about life itself.  And with Richard Linklater’s Boyhood, we’ve got it.  It’s about time.  Literally.  Linklater filmed a kid and his family over a 12 year period.  We see the actors age, which might sound like grim stuff, like watching our friends and, therefore, ourselves, slouch toward mortality.  But there is nothing grim about seeing a six year old emerge into adulthood.  That is life.  Dreams, experience, and memories collide and conspire to produce some luminescent thing that seems simultaneously transient and immortal.  It is more arresting and miraculous than cosmic warfare among the exoskeletons.  It stays with us long after the hobbits and avatars exit stage right.  As with Michael Apted’s Up series, or Linklater’s own Before series, Boyhood reminds us what life is about and what movies can do.  The film theorist Siegfried Kracauer said that the function of film is to do what no other art form can do – show light and movement.  We can see the leaves blowing in the wind, flaunting different shades of green as they flutter in sunlight.  We see things live and change in time.  Perhaps everything takes place under the eyes of eternity, but those are not our eyes.  Ours blink.  Ours close.

Time is the big subject today.   It always is.  The most important philosophical work of the 20th Century is not A Theory of Justice by that very nice Rawls fellow, but Being and Time by that not very nice Heidegger fellow.  Our favorite poem of the 20th Century, Auden’s “As I Walked Out One Evening,” is about time.  “Oh let not time deceive you/you cannot conquer time.”  Our favorite beach-reading book that we could not finish was A Brief History of Time.  Our favorite rock song is “A Day in the Life.”  Our favorite baseball team stinks because the star players all got old at once.  Father Time is undefeated.  Time marks victories and defeats.  Time marks births and deaths.  Time marks us.  Time also marks lawsuits.

We do not too often write about statute of limitations decisions.  They are fact-bound.  The people behind Seinfeld (which premiered 25(!)  years ago) vowed that their show would have no learning and no hugging.  Maybe we here at DDL won’t force a hug on you, but we do hope for some learning.  With statute of limitation decisions, we are usually unsure as to what we can learn from any particular case.   Not so with today’s case, Truitt v. Bayer, No. 13-CV-7811, (SDNY July 2, 2014).  A copy of the opinion can be found here.


Continue Reading Knowledge of Injury is Enough to Start the Statute of Limitations

Way back in law school our moot court topic involved allegations of “wrongful birth” or “wrongful conception.”  The plaintiffs alleged that a doctor failed to detect a catastrophic birth defect, thus depriving the parents of the option to terminate the pregnancy.  The case involved intractable moral/philosophical  and, thus, legal issues.  That “thus” feels mandatory, but perhaps will not withstand rigorous analysis.  Nevertheless, it’s a touchy subject.  Such claims suggest, at least implicitly, that it might be better never to have been yanked from the void into this maelstrom of meat.  Many people recoil from that notion.  When a recent New Yorker article quoted the father of the Newtown, Ct shooter as wishing his son had never been born, the sentiment seemed both sensible and shocking.

Law school seems like a long time ago, and the intervening years have been blissfully bereft of issues of wrongful conception.  But a case last week caught our eye and contains some of these same issues, as well as others that are more typical in our practice.  The case was Vanden Bosch v. Bayer Healthcare Pharmaceuticals, Inc., 2014 U.S. Dist. LEXIS 48055 (W.D. Ky. April 8, 2014), and it concerned an intrauterine contraceptive system.  One of the plaintiffs, Ms. Vanden Bosch, was an Indiana resident.  She claimed that the contraceptive system caused her to suffer from interstitial cystitis.  The other two plaintiffs were Kentucky residents.  They were a mother and daughter.  The mother claimed that the contraceptive caused a chromosome deletion and that, consequently, the daughter was born with severe genetic defects.

The first issue was choice of law.  This topic can seem dry, but it can be outcome dispositive and in this case we were treated to a rather colorful statement of law that Kentucky courts “are very egocentric or protective concerning choice of law questions” and there is a “strong preference in Kentucky for applying Kentucky law”.  Vanden Bosch, 2014 U.S. Dist. LEXIS 48055 at *7.  Kentucky has a one year statute of limitations and plaintiff Vanden Bosch acknowledged that her claim was barred if that one-year rule applied.  She tried to escape the one year rule, but could not.  In responding to the defendant’s motion to dismiss, Vanden Bosch submitted an affidavit stating that the Amended Complaint “mistakenly alleges the place of the device insertion as Louisville, Kentucky” and that to the best of her recollection, her contraceptive device was actually inserted in Indiana.  Indiana had a longer SOL.  But the court refused to consider these new facts, as they were outside of the pleadings.   Id. at *9 n. 2.  It does not much matter, because Kentucky’s borrowing statute applies the statute of limitations of another state only when a cause of action arose in that state and only when the other state has a shorter statute of limitations.  The real problem for Vanden Bosch was the filing of her case in Kentucky.

And now we get to the wrongful conception issue.  To the extent that plaintiff Hogue was trying to recover damages based on the birth of her daughter, the court was having none of it:  “A parent has no cognizable legal injury when alleged wrongdoing results in a genetically or congenitally impaired human life, even severally impaired….”  Id. at *17.  Put another way, a “child’s life cannot be considered a legally cognizable injury.”  Id. at *18.  That’s it.  There is considerably less agonizing over that issue than we recall from our law school exercise.  Real life can be cut and dry.  Law school never is.    The former pays better.


Continue Reading Mixed Reasoning and Wrongful Conception

What’s left of the OxyContin litigation produced a recent decision that addresses a myriad of procedural and substance issues, some of which we often see and others not so much. If you don’t recall, in 2007, Purdue Frederick Corp. and some of its executives pled guilty to criminal charges related to the marketing of OxyContin and paid approximately $600 million in fines.  That was almost 7 years ago.  The plaintiff in Luberda v. Purdue Frederick Corp., 2014 U.S. Dist. LEXIS 41951 (D.S. Car. Mar. 28, 2014), on the other hand, filed his complaint in 2013 in South Carolina – six years after those guilty pleas and ten years after he became addicted to OxyContin.  Although the court’s opinion doesn’t provide much detail on the background of the case, it appears that the plaintiff was asserting negligent and fraudulent failure to warn claims and attempting to assert a private right of action under South Carolina’s criminal statute on misbranding.  He sued nine companies within the Purdue Frederick family of companies and almost two-dozen executives.

This history created a background ripe for motion practice.

Personal Jurisdiction

Many of the individual defendants moved to be dismiss for insufficient service of process and/or lack of personal jurisdiction.  Two of them won their insufficient service of process motions.  They never signed for the certified mail that carried their summons and complaint.  Id. at *12-13.  Those two defendants and approximately 20 others also won dismissal because they did not have sufficient minimum contacts with South Carolina to be sued there.  The court laid out a useful primer on the procedure for analyzing personal jurisdiction:

The party seeking to invoke personal jurisdiction over a nonresident defendant bears the burden of proving the existence of personal jurisdiction.  ESAB Group, Inc. v. Centricut, LLC, 34 F.Supp.2d 323, 328 (D.S.C.1999).  At the pretrial stage, the burden of proving personal jurisdiction over a nonresident is met by a prima facie showing of jurisdiction either in the complaint or in affidavits. In determining whether a prima facie showing has been made, the Court may consider the uncontroverted allegations in Plaintiff’s pleading.  However, whenever the allegations in Plaintiff’s pleading are contested by sworn affidavit, Plaintiff can no longer rest on those allegations.  Instead, it then becomes Plaintiff’s burden to present an affidavit or other evidence proving that jurisdiction exists over the nonresident defendant.  See Wolf v. Richmond Cnty. Hosp. Auth., 745 F.2d 904, 908 (4th Cir. 1984); Clark v. Remark, 993 F.2d 228 (table), 1993 WL 134616, at *2 (4th Cir. 1993).

The Court summarily dismissed a multitude of defendants because plaintiff simply didn’t make a prima facie showing of personal jurisdiction.  Id. at *11-12.  For four of the defendants, however, the court determined that their affidavits and the complaint didn’t clarify whether they were involved in company’s decision-making regarding the marketing of OxyContin.  Id. at *15.  So the court denied the motions of these defendants, but without prejudice to their raising the arguments again at the summary judgment stage after the plaintiff had a chance for “jurisdictional discovery.”  Id. at *16.

Learned Intermediary Doctrine

The court also applied the learned intermediary doctrine to the plaintiff’s negligent failure to warn claim. Plaintiff’s allegations were, in essence, this: “Defendants owed Plaintiff a duty to properly warn of the potential for and/or risk of addiction associate (sic) with their product.” Id. at *17.  That’s wrong.  South Carolina recognizes the learned intermediary doctrine, and as we all know under that doctrine the manufacturer’s duty to warn runs to the prescribing doctor, not the patient.  Id. at *17-18.  The plaintiff has the burden to show – and allege – that the “undisclosed risk was sufficiently high that it would have changed the doctor’s [prescribing] decision.” Id. at *18.  The court dismissed the claim but gave the plaintiff a chance to amend his pleading to add factual allegations suggesting that his doctor would have changed his prescribing decision had there been a different warning.  Id.


Continue Reading An OxyContin Decision That Addresses Everything from Negligence Per Se Claims to Personal Jurisdiction

Have you ever been sitting in a courtroom and wondered why you were there?  We don’t mean that in a metaphysical sense, though that probably happens sometimes, too.  No, we are thinking of the situation where you realize that neither the plaintiff nor the defendant are citizens/residents of the jurisdiction, and that the events in issue did not occur there either.  Why are we here?  This sort of thing happens to us a lot in courtrooms in New Jersey and Pennsylvania.  Of course, there is an answer to the question: that is where the plaintiff filed the lawsuit.  That choice of forum, so we are told by many authorities, is entitled to some respect.  Okay, but how much?  Forum-shopping is not one of the glories of American jurisprudence.  It is a form of lawsuit arbitrage that inflicts inappropriate costs on parties and court systems.  (Of course, some courts have unashamedly promoted themselves as litigation-tourist destinations.) When a plaintiff goes forum-shopping, what is being purchased?  It could be plaintiff-friendly judges, jurors, laws, or procedures.   It is ineluctably unseemly.  Plaintiffs, being plaintiffs, sometimes push things a bit far,  Forum shopping starts to look like forum-shoplifting.

If we had represented the defendant in the recent case of Kuennen v. Stryker Corp., 2013 U.S. Dist. LEXIS 1555571 (W.D. Va. Oct. 30, 2013), we would have wondered why we were in the place where the case was originally filed, the District of Columbia.  The plaintiff, a resident of Virginia, underwent arthroscopic shoulder surgery in Virginia.  The plaintiff received a pain pump made and sold by the defendants, to infuse a local anesthetic into the shoulder joint space.  Now the plaintiff was alleging that the pain pump caused her to lose cartilage in her right shoulder joint.  The defendants were both Stryker entities, which we will call “Corp.” and “Sales.”  Neither was a citizen of D.C.  The pain pump was not designed, manufactured, or sold in D.C. and the alleged injury occurred in Virginia.  The defendants did not simply wonder why they were being hauled into a D.C. court; they successfully moved under section 1404 to transfer the case to the place where it should have been filed, Virginia.  End of forum-shopping, right?

Maybe.  Yeah.  But not without a tussle.  The defendants moved for summary judgment based on the statute of limitations.   The defendants contended that the plaintiffs’ claims were barred by the Virginia two-year statute of limitations.  In opposition, the plaintiffs asserted that the D.C. statute of limitations should apply with its favorable discovery role as to the accrual of the cause of action. The parties agreed that if the Virginia statute of limitations applied, the case would be dismissed, and if the D.C. statute applied, the case would continue, at least for a while.  Why is it even an issue?  The case is in Virginia, right? Not so fast.  When an action is transferred under section 1404(a) from one district court to a district court in another state, the transferee court must apply the same law as the transferor court would have applied.  The forum-shopping effect lingers.


Continue Reading No D.C. Personal Jurisdiction = No Loose D.C. Statute of Limitations = No Case

Most of the time we do not linger on cases that turn on the statute of limitations.  They are often fact-specific to the point of dreariness.  In addition, from a doctrinal perspective, there isn’t much new under the Sun when it comes to a SOL analysis.  But the SOL discussion in Hendrix v. Novartis Pharmaceutical Corp., 2013 U.S. Dist. LEXIS 14936 (C.D. Cal. Oct. 2, 2013), is so comprehensive and cogent that it merits a look, a post, and a new entry on our cross-jurisdictional tolling scorecard.

Hendrix is yet another Aredia-Zometa case.  As we said last week, we are becoming a scrivener for the ongoing A-Z saga.  As with all A-Z cases, the plaintiff ingested Aredia or Zometa as part of cancer treatment and claimed to have suffered osteonecrosis of the jaw (ONJ) as a result.  Also, because there is an A-Z MDL, the filing/forum  history of the case is something of an adventure.  The plaintiff filed his Complaint in the Eastern District of New York on January 17, 2006.  The case was consolidated in 2007 into the MDL in the Middle District of Tennessee.  The defendant filed its SOL motion, but before it could be heard by the MDL court, the case was remanded back to EDNY.  Then the parties moved to transfer the case to C.D. Cal.  If the case could acquire frequent flyer miles, it would have earned enough to … ah, who are we kidding?  With all the restrictions on frequent flyer awards, the case wouldn’t be able to get a free flight anywhere.  It wouldn’t even get free WiFi or a do-it-yourself Bloody Mary.

It makes sense for Hendrix to end up in C.D. Cal., because the treatment and alleged injury took place in California and California law applies.  Under California law, personal injury actions are subject to a two year limitation.  Thus, the issue is whether the cause of action accrued before January 17, 2004.  If it did, the SOL means that the plaintiff is SOL.  To avoid that result, the plaintiff assembled the usual suspects when it comes to SOL:  (1) the defendant waited too long to raise the issue (almost as if there is an SOL to SOL defenses); (2) the “discovery” rules saves the day for the plaintiff; (3) cross-jurisdictional tolling saves the day, because somebody somewhere filed a baseless class action that somehow made everybody else freeze up; and (4) equitable tolling is necessary, because … because it would be “equitable.” Let’s face it, the word “equitable” too often is the last refuge for litigants with shoddy arguments.  We are happy to report that none of those arguments worked.
Continue Reading Discovery Rule, Cross-Jurisdictional Tolling, and “Equitable” Tolling Cannot Save Aredia-Zometa Case