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From Products Liability Law Daily, April 19, 2013

STATUTES OF LIMITATIONS AND REPOSE—DRUGS—CDCal: Patient’s claims against drug manufacturer barred by statute of limitation which began running when she awoke from a coma

By Pamela C. Maloney J.D.; Danielle H. Capilla, J.D..

A patient’s claims that her use of an antibiotic drug caused her to suffer serious adverse reactions were barred by California’s two-year statute of limitations, a federal district court in California ruled (Holmes v Hospira, Inc., April 11, 2013, Phillips, V). The court further determined that the patient failed to provide sufficient support for her claim that the limitations should be tolled under the doctrine of equitable estoppel.

Background. The patient, Gail Holmes, was prescribed Levaquin for strep throat and was hospitalized during the course of treatment after suffering a seizure. She was diagnosed with Stevens-Johnson Syndrome (SJS) and Toxic Epidermal Necrolysis (TEN), which are adverse reactions that result in serious skin and mucous membrane destruction. During her hospitalization, she became comatose and, at one point, her wounds became infected, leading to septic shock. Holmes awoke from her coma on October 4, 2009. She filed her lawsuit against the manufacturer of Levaquin on November 8, 2011.

Statute of limitations. The California two-year statute of limitations begins to run either at the last cause of action to complete the elements of the allegation, or under the discovery rule, two years after a reasonable person knew or should have known their injury was caused by another’s tortious wrongdoing. In this case, Holmes should have been aware she had sustained a potential adverse drug reaction on October 4, 2009, when she awoke from her coma. Although she argued she was still heavily sedated at that time, and that the statute of limitations should not have begun running until a date after her discharge and certain diagnosis, the court disagreed. Thus, Holmes’s claims were dismissed as time-barred

Equitable estoppel. Holmes also argued that the doctrine of equitable estoppel should be invoked to toll the statute of limitations. Equitable estoppel required Holmes to show that the manufacturer concealed or tried to conceal information that Holmes was working diligently to uncover. Holmes claimed that the manufacturer failed to disclose a known defect to her physicians and misrepresented the drug as being safe, therefore invoking equitable estoppel. The allegations were insufficient to toll the statute of limitations and her argument was denied.

The case number is 4:12-CV-109-D.

Attorneys: Michael Ethan Bareket (Hughes Hubbard and Reed LLP) for Pfizer Inc., Parke-Davis, Warner-Lambert Company LLC, and Pfizer Pharmaceuticals Inc.

Companies: Pfizer Inc.; Parke-Davis; Warner-Lamber Co. LLC; Pfizer Pharmaceuticals Inc.

Cases: CourtDecisions SofLReposeNews DrugsNews CaliforniaNews

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