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.


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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.


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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.


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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.
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The Philadelphia diaspora has begun.  A confluence of factors is responsible, such as the “under New management” (pun intended) sign on the Complex Litigation Center, the changed, less plaintiff-friendly procedures that have been put in place (discussed here), and a couple of hard-fought diversity of citizenship wins taking major defendants out of the Philadelphia

For some reason, just as pharmaceutical manufacturing is concentrated in New Jersey and Southeastern Pennsylvania, and just as there are an abnormal number of Class II implant manufacturers in Indiana, the epicenter of American pre-market approved medical device manufacturing seems to be in Minnesota.

Similarly, preemption is at the epicenter of medical device product liability litigation involving PMA devices.

Since plaintiffs are able to avoid federal court through the simple stratagem of suing defendants (all defendants, not just medical device manufacturers) in their “home” courts, we have been wondering how PMA preemption would fare in Minnesota state court.  Minnesota already has a relatively expansive consumer protection statute and (until recently) an extremely long (six-year) statute of limitations for personal injury cases.  If there were also an indication that Minnesota courts would view PMA preemption in a pro-plaintiff fashion, we could see Philadelphia-style influx of litigation tourism.

Fortunately that doesn’t appear to be in the offing.  A couple of years ago, Medtronic scored big with In re Medtronic Sprint Fidelis Leads State Court Litigation, 2009 WL 3417867 (Minn. Dist. Hennepin Co. Oct. 20, 2009), which as we discussed at the time, adopted just about all the pro-preemption holdings in In re Medtronic Sprint Fidelis Leads Products Liability Litigation, 592 F. Supp.2d 1147 (D. Minn. 2009), aff’d, 623 F.3d 1200 (8th Cir. Oct 15, 2010).  There were a lot of good holdings, which we gloated over here.

Still, Sprint Fidelis was just a county-level trial court.  The Sprint Fidelis plaintiffs chose not to take their chances on appeal.  One bad decision from the Court of Appeals of Minnesota could wipe everything out.

Or, conversely, one good appellate decision could cement everything in place and send the litigation tourists scurrying elsewhere.

Fortunately, the latter happened the other day.  See Lamere v. St. Jude Medical, Inc., ___ N.W.2d ___, 2013 WL 599178, slip op. (Minn. App. Feb 19, 2013).  Lamere involved a Class III PMA approved mechanical heart valve, and the court affirmed summary judgment on the basis of preemption.  Not even the Public Citizen Litigation Group (probably the other side’s biggest guns on preemption) could sway the result in Lamere.


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Good news/Bad news jokes are a staple of the Great American
Joke Machine. Not surprisingly, a lot of the jokes involve doctors. For
example:
 
Doctor: I have good news and bad
news for you. The good news is that these test results say you have 24 hours to
live. The bad news ….
Patient: