914 F.3d 1169
8th Cir.2019Background
- Jo Levitt took Merck’s Vioxx starting in 1999 and suffered cardiovascular injuries (including double coronary bypass) in March and May 2000 while on the drug.
- Levitt continued on Vioxx until about 2002; Vioxx was withdrawn from market in 2004.
- Levitt sued Merck on September 29, 2006; Merck moved for judgment on the pleadings asserting Missouri’s five-year statute of limitations (Mo. Ann. Stat. § 516.120) barred the suit.
- Missouri law accrual rule: a cause of action accrues when the damage is ‘‘capable of ascertainment’’—i.e., when a reasonably prudent person in the plaintiff’s situation is on notice of a potentially actionable injury (Powel v. Chaminade).
- Scientific and media reports linking Vioxx to cardiovascular risk emerged between 2000–2001 (VIGOR study, press coverage, and an August 2001 JAMA review), but the literature also acknowledged substantial uncertainty.
- The district court concluded Levitt’s claims accrued before September 29, 2001 and dismissed; the Eighth Circuit majority reversed and remanded, finding material factual disputes about when a reasonably prudent person was on inquiry notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When did the statute of limitations accrue? | Levitt: accrual did not occur before Sept. 29, 2001 because the scientific link to Vioxx was still tentative. | Merck: inquiry notice existed by Sept. 2001 from studies, media, and lawsuits, so accrual occurred before suit. | Reversed district court: accrual date is a factual question here; cannot decide as matter of law because reasonable jurors could differ. |
| Does public/medical awareness of a "possible link" automatically start the limitations period? | Levitt: mere knowledge of a possible link in the medical community does not necessarily place a reasonably prudent person on notice. | Merck: yes; awareness of possible causation is sufficient to start the clock. | Court: Mere knowledge of a possible link is not necessarily dispositive; when science is only beginning to suggest causation, jury must decide. |
| Can tentative or disputed scientific evidence trigger accrual as a matter of law? | Levitt: tentative, contested science and industry denial mean accrual should not be decided as matter of law. | Merck: objective public materials demonstrate inquiry notice regardless of scientific uncertainty. | Court: Tentative/conflicting evidence can leave room for different reasonable conclusions, so accrual is for the jury. |
| Did Merck fraudulently conceal the cause of action? | Levitt (alternative): Merck concealed information so statute was tolled. | Merck: public domain materials put Levitt on inquiry notice; denial is not fraudulent concealment. | District court rejected fraudulent concealment; Eighth Circuit’s majority decision focuses on accrual factual question and remands for further proceedings. |
Key Cases Cited
- Powel v. Chaminade Coll. Preparatory, Inc., 197 S.W.3d 576 (Mo. 2006) (establishes the reasonably prudent person / inquiry-notice test for accrual)
- Giles v. Carmi Flavor & Fragrance Co., Inc., 475 S.W.3d 184 (Mo. Ct. App. 2015) (where scientific causation was only beginning to emerge, accrual was a factual question for the jury)
- Ahearn v. Lafayette Pharmacal, Inc., 729 S.W.2d 501 (Mo. Ct. App. 1987) (earlier decision holding published medical literature suggesting a causal link can trigger accrual)
- Clemons v. Crawford, 585 F.3d 1119 (8th Cir. 2009) (standard of review for judgment on the pleadings)
- Porous Media Corp. v. Pall Corp., 186 F.3d 1077 (8th Cir. 1999) (movant’s burden to clearly establish no material fact issues on judgment on the pleadings)
- Jurrens v. Hartford Life Ins. Co., 190 F.3d 919 (8th Cir. 1999) (federal court must predict state supreme court law when state high court hasn’t addressed the issue)