975 F. Supp. 2d 1100
C.D. Cal.2013Background
- Michel Hendrix, diagnosed with multiple myeloma, received Zometa infusions from 1999–2003; developed exposed necrotic bone (osteonecrosis of the jaw, ONJ) beginning in 2002–2003.
- By April–September 2003 several treating clinicians recorded suspicion that Hendrix’s jaw condition might be linked to Zometa; Dr. Felsenfeld made a working diagnosis on September 18, 2003.
- Hendrix and his oncologist discontinued monthly Zometa in October 2003; Hendrix later resumed annual Zometa in 2007.
- Hendrix filed suit in January 2006 alleging failure to warn and related claims against Novartis Pharmaceuticals Corp. (NPC); case was part of MDL litigation before remand and transfer to the Central District of California.
- NPC moved for summary judgment arguing (1) the claims are time-barred by California’s two-year statute of limitations under the discovery rule, and (2) lack of proximate causation and other merits defenses; the court resolved the case on statute-of-limitations grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NPC waived statute-of-limitations defense | NPC didn’t timely raise it in its original MDL brief; Hendrix argued waiver | NPC pleaded the defense in its answer and later raised it in supplemental motion | No waiver; defense preserved because properly pleaded and plaintiff not prejudiced |
| When Hendrix’s cause of action accrued under California discovery rule | Hendrix contends he lacked actual or inquiry notice before Jan 17, 2004 and cites uncertainty about dates and publicidad | NPC argues Hendrix and his doctors suspected Zometa caused ONJ by Sept–Oct 2003, so limitations began then | Accrual occurred by Sept 18, 2003 (at latest); suit filed Jan 2006 is untimely absent tolling |
| Whether American Pipe tolling (class-action tolling) applied via a Tennessee class action (Becker) | Hendrix urges tolling because he was a putative class member in Becker | NPC contends cross-jurisdictional American Pipe tolling doesn’t apply under California law (Clemens) | American Pipe tolling not available for cross-jurisdictional class action; Clemens controls |
| Whether equitable tolling saves Hendrix’s claim | Hendrix argues equitable tolling applies because he was a class member and equities favor tolling | NPC argues Jolly and related California precedent bar tolling in mass-tort personal-injury contexts; Hendrix did not rely on the class action to delay filing | Court rejects equitable tolling: facts align with Jolly (mass-tort personal-injury), Hendrix did not rely on the Tennessee suit, and three-factor equitable test not met; judgment for NPC |
Key Cases Cited
- American Pipe & Construction Co. v. Utah, 414 U.S. 538 (U.S. 1974) (establishes tolling of limitations for putative class members while a class action is pending)
- Jolly v. Eli Lilly & Co., 44 Cal.3d 1103 (Cal. 1988) (refuses American Pipe tolling for mass-tort personal-injury drug class where class complaint did not adequately notify defendant of individual claims)
- Norgart v. Upjohn Co., 21 Cal.4th 383 (Cal. 1999) (explains plaintiff accrual occurs when plaintiff suspects factual basis for wrongful conduct)
- Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.4th 797 (Cal. 2005) (requires plaintiff to conduct reasonable investigation to benefit from discovery rule)
- Clemens v. DaimlerChrysler Corp., 534 F.3d 1017 (9th Cir. 2008) (declines to import cross-jurisdictional American Pipe tolling into California law)
- Hatfield v. Halifax PLC, 564 F.3d 1177 (9th Cir. 2009) (applies California equitable-tolling test and distinguishes resident class-member tolling issues)
- Guaranty Trust Co. v. York, 326 U.S. 99 (U.S. 1945) (federal courts sitting in diversity must apply state law on statutes of limitation)