In the annals of history, June 6 gets prime billing. That’s understandable, because the successful Normandy landings on D-Day (June 6, 1944), probably saved Western Civilization. (Or maybe that heroic endeavor simply preserved liberal democracy for another 75 years, now that we seem encircled by fanatics both home and abroad who view the Enlightenment with disdain.) But June 7 is no slacker. On June 7, 1776, Richard Henry Lee introduced the Lee Resolution, which later became the Declaration of Independence. 364 days before D-Day, the American Navy decisively won the Battle of Midway, which turned the tide of the Pacific War. On June 7, 1892, Homer Ferguson refused to leave the whites-only part of a train. He later lost his Supreme Court case, Plessy v. Ferguson. That opinion upheld “separate but equal,” a nasty judicial stain that would not be scrubbed away until 1954. (SCOTUS Lesson #1: Horrible Supreme Court precedents can be overturned, but it can take a terribly long time – almost as long as the interval between NBA Finals games.) One year later, on June 7, 1893, an Indian barrister offered a very similar refusal in South Africa. That refusal is usually counted as Gandhi’s first act of civil disobedience. And on June 7, 1965, the Supreme Court issued its decision in Griswold v. Connecticut, holding that married couples have a constitutional right to contraception. Maybe there are people in 2017 who regret that decision (see our overly political parenthetical above) but we’d be surprised to meet such people, just as we’d be surprised to meet people who regret Brown v. Board of Education. Still, the High Court arrived at that sensible result via a fuzzy analysis (e.g., “penumbras” and “emanations”) that could justify just about anything. (SCOTUS Lesson #2: Good results and good reasoning do not always operate in tandem.)
In the passage of time, whether viewed as a Hegelian movement of ideas or as merely One Damned Thing After Another, June 7 is a significant date. Now here comes the inevitable strained segue: today’s case, In re Cook Medical, Inc. IVC Filters Marketing, Sales Practices and Product Litigation, 2017 U.S. Dist. LEXIS 82761 (S.D. Indiana May 31, 2017), is about the passage of time. More specifically, it is about how statutes of repose apply in drug and device litigation.
We do not often get a chance to write about statutes of repose. We get more opportunities to discuss statutes of limitations, though we infrequently seize those opportunities, because the issues are usually fact-specific and obvious. By contrast, statutes of repose present interesting legal issues, and their force can be devastating to tardy claims. In the In re Cook Medical case, the defendant made a motion on the pleadings to dismiss claims on the ground that they were precluded by statutes of repose. The court wrestled with three different statutes of repose: Georgia, Tennessee, and Texas. The differences among those statutes resulted in different dispositions of the claims by the various IVC Filter plaintiffs’ claims.
The Peach State bars claims for strict liability, negligence, or breach of warranty if the suit is not brought within ten years from the date of the first sale. The Georgia plaintiffs’ claims in this case were filed more than ten years after the sale. Buh-bye, right? Not so fast. Georgia’s statute of repose contains an exception if the defendant manufacturer engaged in conduct manifesting “willful, reckless, or wanton disregard for life or property.” The plaintiffs argued that they had alleged such conduct. How? it is not clear from the opinion. Please excuse a slight rant. It seems far too easy for drug and device plaintiffs to allege that any failure to warn equals reckless or wanton conduct. Courts need to clamp down on this all-too-easy way to maintain settlement leverage or exploit jury anger. Not adding a warning in the face of controversial or mixed studies should not be the stuff of punitive damages. Maybe someday courts will wake up to this nonsensical hole in product liability law. End of rant. The In re Cook court was not such a court. But it did limit the damage. It held that that the willful/reckless/wanton exception applied only to negligence claims, but not to strict liability and warranty claims. Thus, the court dismissed the strict liability and warranty claims per the statute of repose. The negligence claims remained. So did the consumer fraud claim, which the court held was not subject to the statute of repose.
Tennessee also has a ten year statute of repose, though apparently not the willful/reckless/wanton exception. At least no such exception was raised in this case. The Tennessee plaintiffs conceded that the strict liability claims were doomed, but they tried to keep their negligence and warranty claims alive. Nice try, said the court, but Tennessee’s Product Liability Act defines “product liability action” to include all of the plaintiffs’ claims. That did not quite end the debate. The plaintiffs pointed out that Tennessee extended the statute of repose to 25 years for asbestos and silicone gel implant claims. Why should those claims get such special treatment? Never you mind, said the court, which applied the rational basis test and concluded that the Tennessee legislature was allowed to make such distinctions. Sure, IVC Filters might pose risks of latency, but the constitution does not compel legislators to treat all latent defects the same. Put another way, “[i]t is no requirement of equal protection that all evils of the same genus be eradicated or none at all.” In re Cook Medical, IVC Filters Prods. Litig., 2017 U.S. Dist. LEXIS 82761 at *14, quoting other cases. The court dismissed all of the Tennessee claims.
“T for Texas, T for Tennessee.” Those two states go together musically (see Guy Clark, Willie & Waylon, Lynyrd Skynyrd, etc.). Here, they also go together legally, as the defendant prevailed on the statutes of repose from both states. The Texas statute of repose is for 15 years. (Of course it is bigger. This is Texas.) But there is an exception if the manufacturer/seller explicitly warrants that the product has a useful life longer than 15 years. The Texas plaintiff attempted to save her claims by filing an affidavit, wherein she said she was told that the device was permanent, and the Patient Guide, which stated that the IVC Filter was “safe and effective as either a permanent or temporary device.” But this was a motion on the pleadings. Outside materials are not allowed. Looking just at the complaint, there was no allegation that the IVC filters were marketed as permanent devices. That is very, very bad for the plaintiff: “As this is a motion for judgment on the pleadings, the omission of her specific warranty allegations is fatal.” Id. at *18. You might think that is an extraordinarily severe result. No matter. The court observed that even if the allegations of permanence were included in the complaint, the claims would still not fly, because the plaintiff nowhere alleged any specific person who warranted permanence, and nowhere alleged any reliance on such warranty of permanence. As for the Patient Guide, the plaintiff did not allege in either her complaint or her affidavit that “she read the Guide before her surgery, much less that she relied on the Guide rather than her own doctor’s recommendation.” Id. at *20. Accordingly, the exception to Texas’s statute of repose did not apply, the statute of repose did apply, the claims were timed-out, and they had to be dismissed.