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.

druganddevicelaw.blogspot.com

We mentioned the Montgomery v. Wyeth case before, here. Well we’re pleased to report that the Sixth Circuit today affirmed the defense summary judgment in Montgomery, slip op. here. The moral of Montgomery is – be on the lookout for statutes of repose, they can be your friends.

That goes double for you young associates out there, stuck with the boring task of answering all those complaints in MDLs. ALWAYS look for a statute of repose. They’re state-specific, idiosyncratic, and usually not designed for prescription medical products. But where they apply, they can be a magic bullet – like this one was in Montgomery.

Tennessee has a general product liability statute of repose, requiring that an action “be brought within one year after the expiration of the anticipated life of the product.” Slip op. at 2. Well, the defendant sold the drug with an expiration date (three years). The plaintiff blew the statute.

To be fair, the plaintiff didn’t get sick until eight years after taking the drug. But that’s how statutes of repose are intended to work. They cut off liability absolutely, based upon a date other than the accrual of a cause of action. They are intended to bar litigation over injuries with long latency periods.

Trapped, the plaintiff threw the kitchen sink during the appeal. They argued that the law of the state where they took the drug (Georgia) should apply rather than the state in which they were injured (Tennessee). The Sixth Circuit, in a lengthy discussion rejected that argument. Slip op. at 5-12.

If you’ve got a case that, for any reason, you want the law of the injury state rather than the prescription state to apply, Montgomery is a case you want to read.

The plaintiff claimed that the statute was tolled by a fen-phen class action settlement. Sorry, but that class action specifically excluded the particular medical condition from its scope. There’s no class action tolling for something the class action doesn’t cover. Slip op. at 12-16.

The plaintiff claimed that the product had been repackaged somewhere along the line and didn’t have an expiration date on it. Didn’t matter. The statute specified the “expiration date placed on the product by the manufacturer.” The defendant put a date on it’s product. That someone later on in the chain of sale removed and substituted new packaging didn’t deprive the manufacturer of its defense. The plaintiff need not know the expiration date. Slip op. at 16-18.

Finally, the plaintiff claimed waiver. Strike four. The defendant had pleaded the statute of repose and cited the statute in its answer. Slip op. at 18-19.

Again, a word to the wise. Check for statutes of repose when answering the complaint and filing dispositive motions.

druganddevicelaw.blogspot.com

druganddevicelaw.blogspot.com