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From Health Law Daily, October 11, 2017

Patient awareness tolled prescriptive period in products liability case

By Vanessa M. Cross, J.D., LL.M.

A motion for summary judgment filed by Janssen Pharmaceuticals, Inc. and its various affiliated entities (Janssen) was granted in a federal district court in Louisiana where a patient brought his diversity action after the one year prescriptive period for tort claims under Louisiana law. Plaintiff claimed that after use of the drug Xarelto®, marketed by Janssen, he suffered internal bleeding and that these injuries were due to Janssen’s inadequate warning label. In granting Janssen’s summary judgment motion, the court found that the patient’s action was not tolled by the doctrine of contra non valentem (In re: Xarelto (Rivaroxaban) Products Liability Litigation, October 10, 2017, Fallon, E.).

Relevant timeline. In its opinion granting the summary judgement, the court set out the relevant timeline.

  • On January 15, 2013, the patient was prescribed Xarelto, an anti-coagulant drug produced by the defendant to treat a variety of blood-thinning medical purposes.
  • On March 6, 2013, the patient was hospitalized for internal bleeding and the Xarelto prescription was reduced.
  • On March 25, 2013, the patient was again hospitalized for internal bleeding.
  • On March 28, 2013, the patient’s doctor discontinued plaintiff’s use of Xarelto.
  • On June 4, 2015, the patient filed a products liability lawsuit against Janssen.

Defendant’s argument. In its motion for summary judgment, Janssen argued that as early as March 28, 2013, the patient either believed or had reason to believe that his internal bleeding was caused by Xarelto. Based on Louisiana’s tort law, the prescriptive period to bring a product liability claim is one year. When the patient brought his action on June 4, 2015, the prescriptive period had run, the manufacturer argued, and the doctrine of contra non valentum did not apply to toll prescription.

Patient’s argument. In opposition to Janssen’s motion, the patient alleged that he was initially unaware of the nexus between his internal bleeding and Xarelto. As a result, the patient argued that the prescriptive period did not begin to run until he was aware that it was Janssen’s alleged tortious acts that placed him at risk of internal bleeding.

Prescription and contra non valentum. The court noted that the prescriptive period for plaintiff’s tort claim was one year under Louisiana law. This was based on the fact that Janssen was a resident of Louisiana and that the action was premised on the jurisdictional diversity of the parties. The doctrine of contra non valentem suspends the prescription in tort actions when a plaintiff is reasonably unaware that his injury was caused by a tort.

In its opinion, the court noted that the doctrine does not apply to allow a plaintiff to gather all the facts necessary to pursue a claim, nor does it extend prescription to allow the plaintiff time to determine the legal theory upon which to bring an action. Under Louisiana law, the prescription period begins when actual or constructive knowledge is found reasonable.

The court found that on March 28, 2013, the patient was at least on inquiry notice of the nexus between his internal bleeding and Xarelto. On this date, the patient was released from the hospital a second time and the doctor completely discontinued the use of Xarelto. No subsequent reports of internal bleeding were noted to have occurred after defendant discontinued use of the drug. As a result, in granting defendant’s motion, the court held that any action against the defendant for the internal bleeding brought after March 28, 2014 would be barred by prescription and contra non valentem did not apply to the patient’s facts.

The case is No. 2:14-md-02592-EEF-MBN.

Attorneys: Leonard A. Davis (Herman, Herman & Katz, LLC) for Plaintiff. Susan M. Sharko (Drinker, Biddle & Reath, LLP) for Defendant.

Companies: Bayer Corporation; Bayer HealthCare LLC; Bayer HealthCare Pharmaceuticals Inc.; Bayer HealthCare AG; Bayer Pharma AG; Bayer AG, Janssen Pharmaceuticals, Inc.; Janssen Research & Development, LLC; Janssen Ortho LLC; Johnson & Johnson

MainStory: TopStory CaseDecisions FDCActNews DrugBiologicNews LabelingNews PLDrugNews SafetyNews LouisianaNews

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