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From Products Liability Law Daily, April 14, 2015

Language barrier does not extend limitations period in Avandia case

By Pamela C. Maloney, J.D.

New York’s three-year products liability statute of limitations could not be tolled beyond the time a reasonable person knew or should have known of the possible link between a diabetes medication and cardiovascular injuries for a patient who did not speak English, a federal district court in Pennsylvania ruled, dismissing the patient’s negligence and failure-to-warn claims as time-barred. The court also held that the patient’s breach- of-warranty claims and fraud claims were barred under the relevant periods prescribed by New York law (In re: Avandia Marketing, Sales Practices and Products Liability Litigation, April 10, 2015, Rufe, C.).

Background. The patient, Victor Bautista, was prescribed Avandia to treat his diabetes and took the drug along with insulin, beginning sometime in 2000 until 2007. In 2001, Bautista was diagnosed with a number of heart-related injuries, which he alleged were caused by his use of the medication. He filed a lawsuit against the manufacturer, GlaxoSmithKline, LLC (GSK), in a federal New York state court, asserting claims for products liability (negligence and failure to warn), breach of express and implied warranties, and fraud. The case was removed to federal court and then transferred to the Avandia multi-district litigation (MDL). GSK moved to dismiss Bautista’s claims on the ground that they were time-barred under the applicable statutes of limitations.

Discovery rule. The New York statutes of limitations for products liability actions have a discovery rule pursuant to which the three-year period within which an action must be brought is to be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence the injury should have been discovered, whichever is earlier. The MDL court had held previously “that a reasonable person who knew that he or she had suffered cardiovascular injury and had taken Avandia would have been put on notice by the end of 2007 of the need to investigate a possible link between Avandia and the injury.” The patient argued that notice could not be imputed to him because he did not speak English and, thus, did not benefit from the news coverage regarding Avandia in 2007. Instead, he first learned that the drug could be the cause of his injuries in 2012 or 2013 when a Spanish-language news program covered GSK’s July 2012 guilty plea for failing to disclose Avandia safety studies to the Food and Drug Administration.

The court rejected the patient’s argument because it focused on his personal knowledge of the link and failed to address New York state law regarding tolling. First, the argument failed to acknowledge that more than five years had elapsed between the patient’s discovery of his injury and the discovery of the cause of his injury. Thus, no tolling was permitted under the law. Second, tolling applied only if a patient could demonstrate that the knowledge or information necessary to ascertain the cause of his injury was not available. In this case, the link between the drug and cardiovascular side effects was known to the manufacturer and the medical community in 2007 when the manufacturer sent a series of “Dear Healthcare Professional” letters that summarized studies linking the drug to cardiovascular health. Furthermore, despite the manufacturer’s attempts to encourage physicians to continue prescribing Avandia, prescriptions had fallen by a little more than one-half, indicating a general acceptance by the medical community of the relationship between the drug and an increased risk of cardiac problems.

In this case, all Avandia-related injuries had been discovered by the end of 2007 and, therefore, the patient’s products liability claims, which were filed in 2013, were time-barred.

Breach-of-warranty claims. The four-year limitations period applicable to the patient’s breach-of-warranty claims began to run on the date of delivery, which in this case, was the date the patient filled his last prescription. Because the lawsuit was filed more than six years after that date, it was time-barred.

Fraud claims. The patient’s fraud claims, which alleged that GSK purposely misled the public as to the safety of using Avandia, whether alone or in conjunction with insulin, so as to induce individuals with diabetes to purchase and use the drug, also were barred by the applicable statute of limitations. The statute of limitations for fraud claims was six years from the date the cause of action accrued or two years from the time the plaintiff discovered the fraud, or with reasonable diligence could have discovered it. Although the patient’s claim was filed within two years of the date he discovered the fraud, the New York courts have held repeatedly that the longer statute of limitations for fraud claims is applicable only in those cases in which there was no injury but for the fraud. In this case, the fraud claim essentially was identical to the products liability claims, particularly the failure-to-warn claims and, thus, the longer period of limitations did not apply.

The case is MDL No. 1871; 13-cv-5125.

Attorneys: Ryanne G. Konan (Ryanne Konan Law Office) for Yheison Bautista. Kenneth J. King (Pepper Hamilton LLP) for GlaxoSmithKline LLC.

Companies: GlaxoSmithKline LLC.

MainStory: TopStory SofLReposeNews WarningsNews DrugsNews PennsylvaniaNews NewYorkNews

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