872 F. Supp. 2d 154
D. Conn.2012Background
- Wyeth’s supplemental motion for summary judgment on statute of limitations denied; motion filed May 3, 2012 (doc. #326) after the dispositive-motion deadline.
- This is a diversity products liability suit involving Premarin and Prempro for Mrs. Moss’s breast cancer; plaintiffs Moss (executor and individual) sue Wyeth.
- MDL orders allegedly waived service of summons under Rule 4(d); Wyeth executed a waiver October 5, 2004 but it was not filed with the court.
- Plaintiffs mailed a waiver with the complaint; Wyeth appeared October 6, 2004 but never filed the signed waiver form.
- Connecticut’s three-year statute governs; commencement tolling depends on service, unless a waiver under Rule 4(d) is properly filed.
- Rule 4(d) waiver mechanics and the MDL order are central to whether the action commenced and tolling occurred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the supplemental motion was timely filed | Moss argues timely under scheduling order | Wyeth contends timely per Rule 56 timing | Denied; motion untimely under scheduling order |
| Whether failure to file a signed waiver tolls the statute | Moss contends waiver tolls commencement | Wyeth argues no tolling without filed waiver | Waiver/commencement valid; tolling applies; suit commenced within limitations |
| Whether MDL waiver of service applies to tolled commencement | MDL waiver makes service unnecessary | MDL waiver limited to procedures, not waiver of service | MDL waiver effectively tolls; service not required for commencement |
| Whether insufficient service defense was waived | Wyeth did not preserve service defense | Wyeth waived by not raising timely | Wyeth waived insufficient service defense; commenced within tolling period |
Key Cases Cited
- Lagassey v. State, 268 Conn. 723 (Conn. 2004) (defines 'actionable harm' and discovery rule for accrual)
- Tarnowsky v. Socci, 271 Conn. 284 (Conn. 2004) (discovery of injury and causation governs accrual)
- Converse v. General Motors Corp., 893 F.2d 513 (2d Cir.1990) (tolling when service occurs after expiration in state消)
- Bogdan v. Zimmer, Inc., 165 Fed.Appx. 883 (2d Cir.2006) (actionable harm timing under Conn. law)
- Bouchard v. DHL Express (USA), 716 F.Supp.2d 202 (D. Conn. 2010) (waiver timing and tolling considerations)
- Datskow v. Teledyne, Inc. Continental Products Div., 899 F.2d 1298 (2d Cir.1990) (form of service defect could be cured within limitations)
- Orix Financial Services, Inc. v. Cline, 369 Fed.Appx. 174 (2d Cir.2010) (waiver principles for defenses like insufficiency of service)