MEMORANDUM AND ORDER
In the motion to dismiss now before me,
I. BACKGROUND
A. Factual Background
Plaintiffs in this multidistrict litigation (MDL) allege that injury or death was suffered as a result of the use of Natura-Lyte and GranuFlo, two products designed, manufactured, labeled, and distributed by FMCNA. These products were used during hemodialysis for patients with renal failure. Dialysis is a procedure to remove waste products from the blood of a patient whose kidneys have failed and can no longer serve this important function. Plaintiffs allege that due to the use of these products, there was an unexpectedly high level of bicarbonate in their blood and this increased their risk of cardiopulmonary arrest or sudden cardiac arrest. The plaintiffs say injuries, including cardiac .arrest and death, were suffered after treatment with these products.
The cases in this MDL share common factual questions, including whether Gra-nuFlo and NaturaLyte were defectively designed or manufactured, whether FMCNA knew or should have known of the risks, and whether FMCNA provided adequate instructions and warnings. Plaintiffs allege (1) strict liability, (2) negligent failure to warn, (3) negligent design, (4) negligence, (5) negligent misrepresentation, (6) breach of implied warranty of merchantability, (7) breach of implied warranty of fitness for a particular purpose, (8) breach of express warranty, (9) fraud, (10) violation of consumer protection laws, (11) loss of consortium, (12) wrongful death, and (13) a survival action on behalf of the decedent’s estate.
The specific plaintiffs at issue in this motion to dismiss were either patients who underwent dialysis using GranuFlo or Na-turaLyte in Mississippi and suffered injury, or they are residents of Mississippi bringing suit on behalf of a decedent who suffered cardiac arrest or other injury after undergoing dialysis in Mississippi and died. Each of the one hundred twenty-seven cases at issue in this motion was filed over three years after the injuries or deaths alleged in the complaint.
B. Procedural Background
On March 29, 2013, the Judicial Panel on Multidistrict Litigation (“JPML”) ordered the transfer of numerous civil actions against FMCNA concerning its GranuFlo and NaturaLyte products to this court for purposes of pretrial proceedings. This multidistrict litigation-styled by the JPML as In re: Fresenius GranuFlo/Naturalyte Dialysate Products Liability Litigation, MDL No. 2428-has since grown to about 2,500 cases and continues to grow.
The initial cases were filed either in various federal district courts and then transferred to this MDL, or were initially
CMO-7 created a procedure by which plaintiffs could file their cases directly into the MDL without first being transferred through the JPML. The order stated that a single' Master Complaint was deemed pled against the defendants in all cases already filed or that would be filed in this MDL. CMO-7 required each plaintiff, regardless of whether a complaint had already been filed, also to file a Short Form Complaint. The Short Form Complaint that all plaintiffs were required to file contained a check box for whether the plaintiff wanted to chose Massachusetts as the “home forum,” and a place to write in an alternate district that would be appropriate if the plaintiff did not want to choose Massachusetts.
Of the one hundred twenty-seven cases at issue in this motion, one hundred and seven had been filed before the adoption of CMO-7 and were transferred into this MDL by the JPML. One hundred and six were filed directly in Mississippi and then transferred to this MDL and one case was filed in Massachusetts and assigned to the MDL. Pursuant to CMO-7, those plaintiffs adopted a “Master Complaint” filed by the Plaintiffs’ Executive Committee and the Plaintiffs’ Steering Committee by filing their Short Form Complaint. Some of those plaintiffs chose Massachusetts as their “home forum” in the Short Form Complaint, while others chose Mississippi.
Another twenty cases have been “direct filed” in the MDL pursuant to the procedure in CMO-7. Of the direct filed cases, eleven chose Massachusetts as the “home forum” in the Short Form Complaint and nine chose Mississippi as the “home forum.”
FMCNA has filed specific answers to the complaints in some but not all of the cases at issue here, although the Master Answer is deemed filed in all of those cases.
II. ANALYSIS
A. Standard of Review
As a formal matter, the procedural posture of each of these cases controls the applicable Federal Rules of Civil Procedure (a) for cases in which FMCNA has already filed a specific answer, the proper characterization of the motion is as one for judgment on the pleadings pursuant to Rule 12(c); (b) for cases in which a specific answer has not been filed, the proper characterization of the motion is as one to dismiss under Rule 12(b)(6) to dismiss. The question of characterization is ultimately immaterial, however, because a Rule 12(c) motion for judgment on the pleadings is treated in the same manner as a Rule 12(b)(6) motion to dismiss. Portugues-Santana v. Rekomdiv Intern. Inc.,
For either motion, I may dismiss only if “taking all of the complaint’s well-pled allegations as true and viewing the other facts in the light most favorable to the plaintiff, the complaint does not allege ‘enough facts to state a claim to relief that is plausible on its face.’ ” Id. (citing Bell Atl. Corp. v. Twombly,
A statute of limitations defense is an affirmative defense that can be addressed by either a 12(b)(6) or a 12(c) motion.
B. Choice of Law
These cases are in federal court because of diversity jurisdiction. 28 U.S.C. § 1332. When jurisdiction is based on diversity of citizenship, federal courts must apply the relevant state statute of limitations. Lareau v. Page,
The standard choice of law rule in diversity actions invokes application of the choice of law rules of the forum state. Klaxon Co. v. Stentor Electric Mfg. Co.,
This approach is more easily applied to some categories of cases in this MDL than to others. There are five categories of cases at issue in the motion before me. The categories depend on where the cases were filed (including whether they were direct filed in this MDL) and whether Massachusetts or Mississippi was designated as the “home forum” on the Short Form Complaint. The five categorical variations are:
(1) Mississippi filed/Mississippi “home forum”;
(2) Mississippi filed/Massachusetts “home forum”;
(3) Massachusetts filed/Massachusetts “home forum”;5
(4) Direct MDL filed/Mississippi “home forum”; and
(5) Direct MDL filed/Massachusetts “home forum”.
For two categories, the parties agree that the choice of law determination is clear because there is no question that the state in which the claim was filed is also properly considered the home forum. This agreement is well founded and I will apply Mississippi choice of law rules to category (1), the Mississippi filed cases with a designated Mississippi home forum, and I will apply Massachusetts choice of law rules to category (3), the Massachusetts filed case with a designated Massachusetts home forum.
The answer to the choice of law question for the other categories of cases requires more extended discussion. The plaintiffs contend that the selection of Massachusetts as the “home forum” on the Short Form Complaint should control the choice of law analysis for both categories (4) and (5), the direct filed cases, and for (2), the Mississippi-filed cases that amended their complaint with a Massachusetts home forum pursuant to CMO-7. A plaintiffs choice of forum is reviewed with deference, Mercier v. Sheraton Int’l, Inc.,
FMCNA argues that the designation made in the Short Form Complaint should not affect the choice of law analysis. The Short Form Complaint, they say, is a creature of CMO-7, and CMO-7 is the embodiment of an agreement between plaintiffs and FMCNA. In this connection, FMCNA points to drafting history to show that they specifically avoided clarifying the choice of law issues through CMO-7. Plaintiffs had twice suggested including a provision specifying which choice of law rules control — initially suggesting that the choice of law rules of the state where a plaintiff was injured by the products should control, which for these plaintiffs would be Mississippi, and later suggesting a clause stating that Massachusetts choice of law rules would control for cases in which plaintiffs chose Massachusetts as their home forum. FMCNA rejected both attempts to resolve the choice of law issue as a matter of the parties’ agreement through CMO-7. FMCNA argues that, since they did not agree that anything in CMO-7 should affect choice of law rules, the designation in the Short Form Complaint of Massachusetts or another jurisdiction as the “home forum” should have the same effect as a choice of venue — it determines where the case ultimately will be tried, not what laws are properly applied. Van Dusen v. Barrack,
To be sure, the drafting of CMO-7 was done by the parties, who agreed on the text that they submitted. But I reviewed and then issued the agreed-upon text as a court order, and it therefore falls to me to construe the meaning and implications of the order. See Harvey v. Johanns,
CMO-7 does not contain the words “choice of law” and does not expressly require the application of any particular choice of law rule. The reason for this is made clear by the drafting history showing that FMCNA insisted on not including any provision clarifying the choice of law issue. CMO-7 does, however, contain numerous agreements between the parties, for example allowing direct filing and deeming the Master Complaint and Master Answer filed in all of the MDL cases. CMO-7 also contains detailed language about the home
Paragraph nineteen of the same section states, “Utilization of the procedure set forth in this Order for directly filing a case in the MDL 2428 Proceedings shall not result in this Court being deemed the “transferor court” for any such directly filed case, unless the Plaintiff elects to choose Massachusetts as his or her home forum on the Short Form Complaint.” The term “transferor court” is not defined in CMO-7, but it echoes the term “trans-feror district,” defined in JPML Rule 1.1 as “the federal district court where an action was pending prior to its transfer pursuant to Section 1407, for inclusion in an MDL, and where the Panel may remand that áction at or before the conclusion of pretrial proceedings.”
The fairest construction of these provisions is that where direct filing plaintiffs choose Massachusetts as their home forum on the Short Form Complaint, this court will treat the cases as if they had been originated in Massachusetts and were transferred from this court into the MDL.
CMO-7 says less about cases that were previously filed. Paragraph nineteen of CMO-7 provides only that “Cases which were pending at the time of entry of this revised CMO 7 may opt to choose Massachusetts as the “home forum” if the case was transferred from another jurisdiction, by checking where indicated on the Short Form Complaint.” While the language about originating forum and transferor court are absent in this section, there is no indication that the term “home forum” there, referring to the same check box in the Short Form Complaint for direct filed cases, is meant to have any different meaning.
The fairest construction of the language of CMO-7 is that I should treat Massachusetts as the “home forum,” “originating forum,” and “transferor court” for previously filed cases that checked off Massachusetts as the home forum on tbe Short Form Complaint.
This construction is consistent with FMCNA’s insistence that CMO-7 itself not specify a choice of law rule. Massachusetts’ status as the home forum when so chosen on the Short Form Complaint is a factual designation that the parties agreed to. Choice of law determinations are legal questions, Reicher v. Berkshire Life Ins. Co. of America,
Choice of law in the context of MDLs is an important and thorny issue, particularly in the context of direct filing. See Andrew D. Bradt, The Shortest Distance: Direct Filing and Choice of Law in Multidistrict Litigation, 88 Notre Dame L.Rev. 759 (2012). Different courts have taken different approaches to choice of law rules for direct filing. For example, the court in In re Vioxx,
FMCNA clearly had a different idea about the proper choice of law analysis to be applied, believing that in the absence of an agreement about the proper choice of law rule, a default rule focused on the place where plaintiffs consumed the products and suffered their injury should control. This is similar to the default rule applied by the court in In re Yasmin and Yaz Marketing, Sales Practices and Prods. Liab. Litig.,
I reject the suggestion that the choice-of-law rules of the state where a plaintiff or decedent was prescribed, purchased, and used the product at issue should for that reason govern. This suggestion is based on the principle that neither party in a diversity case is permitted to change the applicable law by initiating a transfer of venue in federal court. Van Dusen v. Barrack,
The same principle that direct filing should not affect the substantive law applied, however, actually suggests the opposite result. In the cases cited by defendants, the MDL courts rejected the possibility of applying their own choice of law rules because they had no connection to the direct filed cases other than the
In this case, by contrast, plaintiffs injured in Mississippi could have filed in Mississippi but also could have filed in Massachusetts because FMCNA is based in Massachusetts. While I agree with the notion that the proper approach for direct filed cases is to treat them “as if they were transferred from a judicial district sitting in the state where the case originated,” In re Yasmin and Yaz Marketing, Sales Practices and Prods. Liab. Litig.,
Absent direct filing, plaintiffs would have been able to file their claim in either Mississippi or in Massachusetts. Using a test that focuses on the location of the use of the products, rather than on the location of the alleged negligence, would deprive plaintiffs of the choice that they otherwise would have had between two proper forums. Indeed, applying a default rule like that advocated by the defendants would limit plaintiffs’ choice of a proper forum and would be tantamount to creating a federal choice of law rule privileging the location of the consumption of a product rather than the location of the alleged negligence. The creation of federal choice of law rules is precisely what was rejected by Klaxon,
FMCNA objects to the use of the home forum selected by plaintiffs in the Short Form Complaint for purposes of choice of law analysis on the ground that they did not agree that this designation would control the choice of law analysis. For purposes of the direct filed cases, this objection is unsustainable because absent direct filing the plaintiffs would have been permitted to file originally in either forum without regard to FMCNA’s consent. Permitting a plaintiff unilaterally to determine which of multiple appropriate forums should apply is consistent with the deference traditionally shown to a plaintiffs choice of forum. Gulf Oil Corp. v. Gilbert,
The home forum designation of the direct filing plaintiffs is the best evidence I have of what these plaintiffs would have done absent direct filing. Just as Mississippi plaintiffs would have had a choice between at least two proper forums in the absence of direct filing, so too do they have such an option with the direct filing procedure. I will therefore consider the forum that the direct filing plaintiffs designated on their Short Form Complaints as the originating home forum for the choice of law analysis. The eleven direct filing plaintiffs who chose Massachusetts as their home forum will be subject to a Massachusetts choice of law analysis and the nine direct fifing plaintiffs who chose Mississippi as their home forum will be subject to a Mississippi choice of law analysis.
The issue of choice of law for plaintiffs whose cases were originally filed in Mississippi but who designated a Massachusetts home forum when they filed a Short Form Complaint pursuant to CMO-7 is more complex. Absent CMO-7 and the Short Form Complaint, these cases would clearly be deemed to have originated in Mississip
The plaintiffs in this category contend that CMO-7 permitted them to amend their complaint and change its originating forum from Mississippi to Massachusetts and thereby change the relevant choice of law rules. The term “home forum” as used in CMO-7 concerning preexisting cases, however, does not by terms clearly mean replacing the originating forum for purposes of choice of law rules. In fact, such a construction would be in derogation of the “housekeeping” principle of Van Dusen,
To recapitulate my choice of laws determinations as to the various categories of Mississippi plaintiff cases before me:
(1) For Mississippi filed/Mississippi “home forum” cases, Mississippi choice of law principles will apply;
(2) For Mississippi filed/ Massachusetts “home forum” cases, Mississippi choice of law principles will apply;
(3) For Massachusetts filed/Massachusetts “home forum” cases, Massachusetts choice of law principles will apply;
(4) For direct filed/Mississippi “home forum” cases, Mississippi choice of law principles will apply; and
(5) For direct filed/Massachusetts “home forum” cases, Massachusetts choice of law principles will apply.
1. Applying Massachusetts Choice of Law
Massachusetts has rejected the “automatic application of the forum State’s statute of limitations” and instead applies a “functional approach” to choice of law questions concerning statutes of limitation as stated in the Restatement (Second) of Conflict of Laws § 142. Nierman v. Hyatt Corp.,
Plaintiffs urge me to read this rule sequentially, looking first to whether Massachusetts has any substantial interest in maintaining the claim and, if there is an affirmative answer, not considering the question posed by the second prong of the inquiry as to which state has the more significant relationship. This analysis is consistent with the compound structure of Section 142, requiring both prongs to be met in order to apply a foreign statute of limitations.
That approach was taken by the Supreme Judicial Court in New England Telephone v. Gourdeau,
In more recent cases, however, the Supreme Judicial Court — while citing Section 142 — has reversed the order of analysis, focusing primarily on the question of which state has the more significant relationship to the issues in the case. For example, Nierman v. Hyatt Corp.,
Plaintiffs contend that Massachusetts has a substantial interest in applying its own statute of limitations here because FMCNA’s principal place of business is in Massachusetts and it made decisions here regarding the design, marketing, sale, distribution, labeling, instructions and warnings — or decisions not to provide particular instructions and warnings — to medical providers concerning the use of GranuFlo and NaturaLyte. Plaintiffs argue that the Massachusetts interest in deterrence and holding its resident defendant accountable for its misconduct that occurred in Massachusetts are substantial ones. It is certainly true that “Massachusetts law and product liability law generally support holding accountable those whose defective products cause injuries. [P]ublic policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them.” Donovan v. Philip Morris USA, Inc.,
Despite the flexible analysis applied by Massachusetts courts in focusing primarily on which state has the more significant relationship and only secondarily on whether Massachusetts has a substantial interest in maintaining the claim, no court of which I am aware has found that Massachusetts has a substantial interest but then not applied the Massachusetts statute of limitation. The Supreme Judicial Court has made clear, however, that the mere fact that a plaintiff or defendant is a resident of Massachusetts does not create a substantial interest. See Nierman,
Although I believe that this choice of law issue is resolved due to Massachusetts’ substantial interest in the timeliness of this action, I also note that it N not apparent from the pleadings that Mississippi has a more significant interest in the timeliness of this matter than does Massachusetts. In determining whether Massachusetts or Mississippi has the “more significant” relationship with the cause of action, a court should consider “(a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered.” Cosme,
It is possible that after discovery the relevant facts in the several cases at issue may look different. See Silica Tech, L.L.C. v. J-Fiber, GmbH,
2. Applying Mississippi Choice of Law
The parties agree that Mississippi choice-of-law' rules generally treat a statute of limitations as procedural and thus apply Mississippi’s limitations periods. Russ v. Gayden,
Plaintiffs have not, however, provided any argument about why Mississippi would be applying Massachusetts’ substantive law here. Mississippi follows the “most significant relationship test embodied in the Restatement (Second) of Conflicts of Law.” McDaniel v. Ritter,
C. Applying Statutes of Limitation
1. Massachusetts Law
a. Applicable Statutes
The Massachusetts statute of limitations for a wrongful death action re
The same analysis applies to causes of action for tort and personal injury, which also have a three year statute of limitations, Mass. Gen. Laws ch. 260, § 2A, and are subject to a common law discovery rule, see Bowen v. Eli Lilly & Co.,
b. Discovery Rules
The Massachusetts common law discovery rule begins the statute of limitations period “when the plaintiff discovers, or reasonably should have discovered” that the plaintiff “has been harmed or may have been harmed by the defendant’s conduct.” Koe v. Mercer,
2. Mississippi Law
a. Applicable Statutes
Under Mississippi law, wrongful death actions are governed by Mississippi Code Section 11-7-13, which has no explicit statute of limitations. This statute “encompasses all claims — including survival claims which could have been brought by the decedent, wrongful-death claims, estate claims, and other claims — resulting from a tort which proximately caused a death.”
Actions under the wrongful death statute are typically “predicated on an underlying tort, and the action is limited by the statute of limitations which is applicable to that tort.” Id. at 462. For actions with no prescribed statute of limitations, including most torts, Mississippi’s “catchall” statute of limitations is three years. Miss.Code Ann. § 15-1-49. The statute of limitations governing express and implied warranty claims, which can be foundations for a wrongful death claim, is six years. Miss.Code Ann. § 75-2-725.
b. Discovery Rules
The catch-all three-year statute of limitations provides, “In actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.” Miss.Code Ann. § 15-1-49. This discovery rule only applies when there is a latent injury. PPG Architectural Finishes v. Lowery,
Mississippi construes the discovery rule of § 15-1-49 narrowly. Under the Mississippi discovery rule, “the cause of action accrues once a party discovers its injury■—regardless of whether the party has also discovered the cause of the injury.” State Indus. Products Corp. v. Beta Technology, Inc.,
The meaning of § 15-1^19 is clarified through comparison with the Mississippi medical malpractice discovery rule, which refers to the date an “act, omission or neglect shall or with reasonable diligence might have been first known or discovered,” Miss.Code Ann. § 15-1-36. In Barnes v. Koppers,
FMCNA argues that the injuries here, as detailed in the plaintiffs’ complaint and as inherent in their wrongful death claims, are cardiac arrest and death of plaintiffs and/or plaintiffs’ decedents. These injuries, FMCNA claims, were immediately apparent at the time they occurred and cannot be considered latent. The discovery rule does not apply to injuries that are not latent, and this, they argue, should be the end of the analysis.
Plaintiffs respond that the injury is not the death or cardiac arrest, but the increased level of bicarbonate in their blood. They argue that death or cardiac arrest were mere manifestations of that injury. An increase in bicarbonate levels in the blood, however, is not an injury on its own but rather is relevant only to causation. To be- sure, in Pollard v. Sherwin-Williams Company,
Despite the clear rule that the key factor is the discovery of the injury, not causation, some Mississippi courts have relied on evidence of causation in their analysis focused on determining when a person became aware of an injury under the discovery rule. This may help explain the Pollard case discussed above, in which the court focused on the date that lead was found in the child’s blood rather than on his cognitive and other disabilities.
In Lincoln Electric Co. v. McLemore,
Moreover, Plaintiffs’ efforts to deny that cardiac arrest and death are the relevant injuries in plaintiffs’ case are at odds with their own complaint. In the Master Complaint, plaintiffs state that due to the defective nature of NaturaLyte and Granu-Flo and their inadequate labeling and warnings, plaintiffs and decedents “had significant health problems including but not limited to cardio pulmonary arrest, and/or sudden cardiac arrest or death”. Compl. ¶ 2. Plaintiffs allege, “As a direct and proximate result of the acts and omissions of Defendants, and Plaintiffs’ use of NaturaLyte and/or GranuFlo, Plaintiffs have suffered death [and] serious permanent physical injury ... Plaintiffs’ serious injuries and death as a result of their exposure to NaturaLyte and/or GranuFlo, was caused by and was the direct and proximate result of Defendants’ breaches of warranty and/or the negligence or other wrongful conduct of Defendants ...” Id. at ¶¶ 217, 221. The complaint itself describes the increase of bicarbonate levels as contributing to a risk factor for health problems but not as the injury itself. Id. at ¶ lll(“Defendants knew, or should have known, that [an increase in bicarbonate levels in the blood] contributes to metabolic alkalosis, which is a significant risk factor associated with many health problems including heart arrhythmia, cardiopulmonary arrest and sudden cardiac death.”). Receiving too much bicarbonate is alleged in the complaint as leading to a potential electrolyte imbalance and an increased risk of heart problems. Id. at ¶ 120 (with too much bicarbonate, “an electrolyte imbalance can occur ... a patient’s potassium and calcium may shift on a cellular level, resulting in a significant increase in the potential for an arrhythmia or fibrillation”).
Death and cardiac arrest are the injuries that were suffered by plaintiffs or their decedents in these cases. These injuries were apparent to the plaintiffs at the time they occurred, and therefore cannot be considered latent. Even if, as appears implausible, the increased levels of bicarbonate could fairly be considered an additional injury, this does .not change this conclusion. Discovery of the injuries from health problems such as cardiac arrest, not to mention death, does not depend on whether plaintiffs had discovered what
c. Tolling for Fraudulent Concealment
Mississippi law provides tolling of a statute of limitations for fraudulent concealment. “If a person liable to any personal action shall fraudulently conceal the cause of action from the knowledge of the person entitled thereto, the cause of action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence might have been, first known or discovered.” Miss.Code Ann. § 15-1-67. To make out fraudulent concealment, a plaintiff must show that “(1) some affirmative act or conduct was done and prevented discovery of the claim; and (2) due .diligence was performed on its part to discover the claim.” Trustmark Nat’l Bank v. Meador,
In two products liability eases involving allegations that a drug manufacturer failed properly to label and warn plaintiffs of risks related to the drug — similar to the cause of action here — federal courts in Mississippi came out differently based on slight variations in facts. In Bryant v. Wyeth,
Here the plaintiffs do not identify anything in the Master Complaint that would meet the subsequent affirmative action requirement, nor have I found any. To be sure, the Master Complaint notes at one point that “Defendant(s) are estopped from asserting a statute of limitations defense due to Defendants’ fraudulent concealment, through affirmative misrepresentations and omissions, from Plaintiffs and/or Plaintiffs’ physicians of the true risks associated with the Products.” Compl. ¶ 226. This allegation is both too general to meet the requirement of Fed. R.Civ.P. 9 and also does not specify whether the alleged misrepresentations occurred after the injury of any particular plaintiff. Plaintiffs have alleged numerous instances in which they say FMCNA failed to disclose knowledge that it had about the safety of GranuFlo and NaturaLyte, such as through internal memoranda as early as 2001. Compl. ¶ 152. They do not allege, however, that FMCNA made any affirmative misrepresentations, rather they allege
III. CONCLUSION
For the reasons set forth more fully above, Defendants’ motion to dismiss and motion for judgment on the pleadings (Dkt. No. 721) is GRANTED in part and DENIED in part to provide the parties with a general framework to address dis-positive motions in the cases to which that framework is applicable. In light of the framework, the parties may now consider dispositive motion practice in the specific cases for which this framework is applicable.
APPENDIX A
Cases Involving Mississippi Patients Filed More Than 3 Years After the Date of Injury/Death
Notes
. Fresenius Medical Care Holdings, Inc. d/b/a Fresenius Medical Care North America, Fre-senius USA, Inc., Fresenius USA Manufacturing, Inc., Fresenius USA Marketing, Inc., and Fresenius USA Sales, Inc.
. The full universe of cases to which these rulings will apply remains undefined because cases that may be affected continue to be filed in this MDL. As will become clear, I outline in this Memorandum and Order the broad principles governing summary judgment in cases having a Mississippi origin. Based upon these broad principles, I will look to the parties to identify those cases which may be appropriate for definitive and case specific summary judgment practice.
. The roughly 2,500 cases in this MDL docketed to date in this court are drawn from 47 different states, the District of Columbia and Puerto Rico.
. The one case in this category was filed in Massachusetts prior to CMO-7, so is not considered direct filed. As an administrative matter, it was transferred by the JPML into this MDL. No cases were filed in Massachusetts, transferred to the MDL, and then chose a Mississippi forum.
. See Bradt, The Shortest Distance, 88 Notre Dame L.Rev. at 816 (opining that the "best solution would be to require a direct-filing MDL plaintiff to declare in the complaint an appropriate ‘home venue' where the case could have otherwise been filed” as a way of clarifying choice of law issues for cases directly filed in MDLs while maintaining "neutrality” toward plaintiffs' choice of one of multiple proper originating forums).
. Cosme, from 1994, was decided before the Supreme Judicial Court adopted the functional approach to statutes of limitation in Gour-deau. While Massachusetts courts in 1994 were still typically considering statutes of limitation to be procedural and applying domestic statutes of limitation, in Cosme it engaged in a precursor to the functional approach
. The statute of limitations for breach of warranty in Massachusetts is either three years if the claim is a tort-based warranty claim, Mass. Gen. Laws ch. 106, § 2-318, or four years if the claim is a contract-based warranty claim, Mass. Gen. Laws ch. 106, § 2-725. Bay State-Spray & Provincetown S.S., Inc. v. Caterpillar Tractor Co.,
. At the hearing on these motions the defendants conceded that the plaintiffs’ warranty claims may survive even if a Mississippi statute of limitations law is applied.
. Mississippi cases about the discovery rule have, however, occasionally drawn on the language of medical malpractice in torts cases, see, e.g., Boyles v. Schlumberger Tech. Corp.,
. Plaintiffs suggest that I look to language in the original “long form” complaints filed pri- or to the cases being transferred to this MDL. CMO-7 required these plaintiffs to "file a Short Form Complaint, which shall replace a Plaintiff's original 'long form' Complaint, by filing the Short Form Complaint as an 'amended complaint.' ” In the conventional procedural circumstance, once an original long form complaint has been amended, it is of no further effect in the case. Connectu LLC v. Zuckerberg,