690 F.Supp.3d 1
D. Mass.2023Background
- MSP Recovery (assignee of Medicare, Medicaid and similar payors) sued Fresenius in MDL alleging economic losses from patients’ injuries caused by GranuFlo/NaturaLyte hemodialysate products.
- Plaintiffs initially filed in Florida state court in Sept. 2018; case was removed, transferred into the MDL and plaintiffs filed a second amended complaint in March 2019.
- Second amended complaint asserted multiple tort and warranty counts (negligence, strict liability, breach of warranty, fraud, consumer protection, etc.).
- Fresenius moved to dismiss all counts principally on statute-of-limitations grounds and for failure to plead a legal basis for subrogation/class membership and patient-specific facts.
- Plaintiffs sought class-action tolling under American Pipe based on the earlier Berzas putative class (filed March 2013). The court found MSP Recovery was not a member of that class, plaintiffs were not diligent, and tolling did not apply.
- The court allowed Fresenius’s motion to dismiss, denied leave to amend, and entered dismissal on Sept. 7, 2023.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness / statute of limitations | Claims are timely because American Pipe tolling applies from Berzas putative class. | Claims are time-barred; tolling inapplicable. | Dismissed as untimely; no American Pipe tolling. |
| Class membership / standing to toll | MSP Recovery’s assignors fall within Berzas class definition. | Berzas class covers purchasers/reimbursers of product, not payors seeking recovery for treatment of injured patients. | MSP Recovery failed to show membership; tolling denied. |
| Equitable diligence for tolling | Pendency of Berzas and legal developments justify equitable tolling. | MSP Recovery waited years after class allegations collapsed and did not act diligently. | Court finds lack of diligence; equitable tolling unavailable. |
| Leave to amend | Request for leave to amend to cure defects. | Amendment barred by prior MDL direction and plaintiffs’ repeated attempts. | Leave to amend denied; second amended complaint treated as "last and best offer." |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must be plausible to survive dismissal)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard articulated)
- American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974) (class-action tolling doctrine)
- In re Celexa & Lexapro Mktg. & Sales Pracs. Litig., 915 F.3d 1 (1st Cir. 2019) (must be member of original putative class to invoke American Pipe tolling)
- Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1 (1st Cir. 2011) (court may draw reasonable inferences from pleaded facts)
- Haley v. City of Boston, 657 F.3d 39 (1st Cir. 2011) (limits on materials considered on a Rule 12(b)(6) motion)
- Hernandez-Cuevas v. Taylor, 723 F.3d 91 (1st Cir. 2013) (complaint should be read as a whole for plausibility analysis)
- China Agritech, Inc. v. Resh, 138 S. Ct. 1800 (2018) (equitable tolling requires diligence and is limited)