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.

Last Friday, the New Jersey Superior Court Appellate Division issued a decision filled chock-a-block with interesting rulings. Cornett v. Johnson & Johnson, 2010 WL 2867811 (N.J. Super. Ct. App. Div. July 23, 2010). Today we’ll discuss the part of the opinion that resolves the choice of law and statute of limitations issues raised by the appeal of Vonnie Cornett. Tomorrow we (read: Bexis) will analyze the rest of the opinion, which discusses device preemption, parallel claims, and off-label promotion. Those of you who can’t wait until tomorrow have the citation.

In December 2004, Vonnie Cornett’s husband Billie Cornett received a drug-eluting stent made by Cordis, a Johnson & Johnson subsidiary. On May 18, 2005, a cardiac catheterization found a subacute thrombosis in the artery with the stent. Billie died on June 1, 2005, allegedly from subacute stent thrombosis, but Vonnie did not file her complaint until September 2008, more than three years later, and she filed the complaint in New Jersey state court. The trial court granted defendants’ pre-answer motion to dismiss the complaint as untimely.

On appeal, the court had to decide whether to apply the statute of limitations of Kentucky, where the Cornetts lived, or New Jersey, where Johnson & Johnson has its headquarters and the complaint was filed. The court noted that the two states have different statutes of limitations and performed a full choice of law analysis. As you will see when we discuss how the court resolved the statute of limitations point, the decision to do an elaborate choice of law analysis was a bit curious – not necessarily wrong, just curious – because the court found the complaint time barred under either state’s statute of limitations.

On choice of law, the court applied New Jersey’s “most significant relationship” test and decided, after thorough analysis of the relevant factors, to apply Kentucky law because Kentucky was where Billie Cornett lived, received his medical care (including the stent), and allegedly suffered his injury from the stent. Id. at *5-7. Although no surprise, since most courts apply the place of injury’s law in most circumstances, often with only cursory analysis, this ruling is a big deal because it’s New Jersey. Because of the state’s pro-plaintiff reputation (and being the home of a lot of major pharma companies), hordes of out-of-state plaintiffs have descended upon New Jersey courts hoping to take advantage of, among other things, a rather broad discovery rule (it applies to wrongful death actions, for one thing).

But maybe not any more.

The Cornett court could have ended its discussion right there because the complaint clearly was untimely under the law of Kentucky, which gives plaintiffs one year to file personal injury claims (plus an additional year for representatives of decedents who died within one year of the claimed injury) and does not have a discovery rule for product liability claims. But the court went on to say that the complaint also was untimely under New Jersey’s discovery rule, and that discussion should be particularly interesting to those of you who deal with statute of limitations issues – especially in New Jersey.

New Jersey, like many states, applies a discovery rule under which the statute of limitations clock does not start to run “until the injured person discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim.” Id. at *4. The Cornett court said that the diagnosis of the thrombosis in the artery where the stent was implanted five months after implantation should have made the plaintiff reasonably suspect a possible connection between the device and the decedent’s injury. Id. at *8. A reasonable person should have investigated the matter further or contacted counsel, the court said. Id.

The icing on the discovery rule cake, the court reasoned, was that plaintiff alleged it was self-evident from the cause of death that the thrombosis formed within the stent. Id. The opinion doesn’t say, but we presume that plaintiff made this allegation in the portion of the complaint that tried to show the stent caused Billie Cornett’s injuries.

A plaintiff’s own allegations can provide the best response to a discovery rule claim in drug and device cases. The facts plaintiffs plead to support their claims that they were injured by a drug or device almost always were available to the plaintiff at or near the time of the injury. The real question in many discovery rule cases is this: what has changed between the time of the injury and the filing of the complaint, when (pardon the statement of the obvious) the plaintiff clearly knew enough to file a complaint? Usually nothing has changed, which means that the plaintiff knew enough at the time of the injury to pursue a claim.

Plaintiff tried to answer that key question by arguing that the clock did not start until the medical community reached a consensus as to causation, which supposedly happened at some later time. That’s a pretty weak argument – among other things, how is a plaintiff or a court ever to know the exact date on which the medical community reaches consensus, if it ever does? – and the court made short shrift of it: “neither medical nor legal certainty is required if the state of facts would alert a reasonable person to the possibility of an actionable claim, namely, that a third party’s conduct may have contributed to the injury and the conduct might have possibly been unreasonable.” Id. at *8 (citation omitted). The court concluded that the complaint was untimely under either New Jersey or Kentucky law and affirmed its dismissal.

Tune in tomorrow for Bexis’s analysis of the more complicated preemption rulings.

One side effect of the Judicial Panel on Multidistrict Litigation’s refusal to make the pain pump cases an MDL is that many different courts are ruling on the inadequacy of the pain pump complaints. The Western District of Pennsylvania took its turn last week in Kester v. Zimmer Holdings, Inc., 2010 U.S. Dist. LEXIS 59869 (W.D. Pa. June 16, 2010). The opinion contains a few useful rulings.

1. It is a commonplace that a defendant cannot move to dismiss based on the statute of limitations. The Kester court rightly observed that such a motion is permissible if the complaint’s untimeliness is apparent from the facts alleged in the complaint. Id. at *43 n.11. Plaintiff’s complaint was facially time barred because she filed the complaint more than two years after the date alleged in the complaint that she received the pain pump. Id. at *44. Plaintiff argued that the discovery rule saved her from dismissal and that it was “nonsensical” to think she would have known immediately upon receiving the pain pump what caused her injuries. But she had the burden under Pennsylvania law to prove the diligence required by the discovery rule, the court said, and therefore her complaint had to allege facts showing such diligence. Id. at *45-47. Without those allegations, her complaint was time barred on its face and would be dismissed. Id.
2. The court joined many other pain pump decisions and held that the complaint had to identify which of the many named defendants actually made the product that allegedly caused plaintiff’s injury. Id. at *17-24. The court rejected her argument that Rule 8(d), which allows pleading in the alternative, authorizes her to sue several potentially responsible defendants until she figured out which one made the product. Id. at *19-221. The court also rejected the plea we have heard time and again from plaintiffs – “Your Honor, even if my complaint is inadequate, just let me take some discovery and I will find facts to support my claim.” The court said she had to plead a valid claim before taking discovery. Id. at *22-23. And because she could not identify who actually made the products given to her, plaintiff also could not say who made which misrepresentations to whom. and her fraud-based claims were dismissed for failure to satisfy Rule 9(b). Id. at *40-41.

3. Plaintiff’s breach of implied warranty and strict liability claims were dismissed because Pennsylvania law does not recognize those claims for prescription drugs and medical devices. Id. at *25-27, 32-33.

4. The learned intermediary doctrine barred plaintiff’s claim under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law. “[A] private right of action under the UTPCPL requires proof of justifiable reliance and causation, and such requirements cannot be present when the defendant is a pharmaceutical company that did not sell its product directly to the patient.” Id. at *42-43 (citation omitted).

The court gave plaintiff leave to amend, and we’ll see if she can fix these deficiencies. No matter what happens, the decision has given defendants a few more arrows in our quivers.

On Friday, Judge Posner issued an interesting opinion in Chang v. Baxter Healthcare Corp., No. 09-2280 (7th Cir. March 26, 2010). The opinion affirms the dismissal on statute of limitations and forum non conveniens grounds of claims brought against U.S. companies by plaintiffs from Taiwan. Along the way, Judge Posner has some interesting things to say about: (1) California conflicts of law rules, (2) California’s “borrowing” statute, (3) statutes of repose and limitations generally, (4) the discovery rule, (5) fraudulent concealment (“Denial of liability when negotiating a settlement agreement is the norm; it is not evidence of fraudulent concealment of anything”), (6) the difference between the terms “arose” and “accrued,” (7) the difficulties in obtaining evidence in Taiwan for a case pending in the U.S., and (8) the relevance of differences in the foreign forum’s substantive law and statute of limitations to the forum non conveniens analysis. It’s Posner, so you’ll probably find it interesting. We do, but we have to be “speak no evil” on this one, since we represent one of the winning parties. In any event, we wanted our readers to know about it.

Good things can come in small packages.

In Greer v. Medtronic, No. 4;08CV042-P-B, slip op. (N.D. Miss. Apr. 25, 2008), plaintiff pleaded a host of product liability claims against Medtronic relating to an implantable cardiac defibrillator. But the decedent had died on January 22, 2005, and plaintiff didn’t file her complaint until February 20, 2008, seemingly a month after the three-year statute of limitations had expired.

Plaintiff insisted that her complaint was timely, because she was not aware of the likely cause of the decedent’s death until February 21, 2005, when she received a letter from Medtronic allegedly alerting her to a possible defect in the defibrillator.

A 2005 decision by a federal trial court in Mississippi held that Mississippi’s “discovery rule” required a plaintiff to know of both an injury and its possible cause before the statute of limitations would begin to run. See Beck v. Koppers, 2005 WL 2715910 (N.D. Miss. 2005).

Medtronic asserted that a later Mississippi Supreme Court case, PPG Architectural Finishes v. Lowery, 909 So.2d 47 (Miss. 2005), focused on knowledge of only the injury itself, not its cause, and thus implicitly limited the discovery rule.

In Greer, the court rejected the gist of Medtronic’s argument, but nonetheless ruled in the company’s favor. (If you’ve gotta lose, that’s the way to do it.)

The court held that, after Lowery, plaintiffs must still be aware of both the injury and its possible cause for the statute of limitations to begin to run.

But, said the court, in a case pleading wrongful death caused by the alleged failure of a defibrillator, the death itself put plaintiff on notice of the injury’s possible cause. Plaintiff knew the decedent “died from heart failure on January 22, 2005. At that moment, with the exercise of reasonable diligence, she could have discovered that she probably had an actionable injury or knew or reasonably should have known that some negligent conduct had occurred.” Greer, slip op. at 6. The statute of limitations thus began to run on the date of death and expired three years later.

In cases of wrongful death, or where an implant breaks, or in other situations where the alleged injury and its possible cause are related, defendants shouldn’t be shy to assert that the discovery rule will not result in additional time within which to file a complaint.