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Hot Off The Presses - Statute of Repose Defense Win in Fen-Phen Appeal

By James M. Beck and Mark Herrmann

This is a Bexis only post. Herrmann represents Wyeth and doesn't want to go on record on this.

We mentioned the Montgomery v. Wyeth case before, here. Well we're pleased to report that the Sixth Circuit today affirmed the defense summary judgment in Montgomery, slip op. here. The moral of Montgomery is - be on the lookout for statutes of repose, they can be your friends.

That goes double for you young associates out there, stuck with the boring task of answering all those complaints in MDLs. ALWAYS look for a statute of repose. They're state-specific, idiosyncratic, and usually not designed for prescription medical products. But where they apply, they can be a magic bullet - like this one was in Montgomery.

Tennessee has a general product liability statute of repose, requiring that an action ?be brought within one year after the expiration of the anticipated life of the product.? Slip op. at 2. Well, the defendant sold the drug with an expiration date (three years). The plaintiff blew the statute.

To be fair, the plaintiff didn't get sick until eight years after taking the drug. But that's how statutes of repose are intended to work. They cut off liability absolutely, based upon a date other than the accrual of a cause of action. They are intended to bar litigation over injuries with long latency periods.

Trapped, the plaintiff threw the kitchen sink during the appeal. They argued that the law of the state where they took the drug (Georgia) should apply rather than the state in which they were injured (Tennessee). The Sixth Circuit, in a lengthy discussion rejected that argument. Slip op. at 5-12.

If you've got a case that, for any reason, you want the law of the injury state rather than the prescription state to apply, Montgomery is a case you want to read.

The plaintiff claimed that the statute was tolled by a fen-phen class action settlement. Sorry, but that class action specifically excluded the particular medical condition from its scope. There's no class action tolling for something the class action doesn't cover. Slip op. at 12-16.

The plaintiff claimed that the product had been repackaged somewhere along the line and didn't have an expiration date on it. Didn't matter. The statute specified the "expiration date placed on the product by the manufacturer." The defendant put a date on it's product. That someone later on in the chain of sale removed and substituted new packaging didn't deprive the manufacturer of its defense. The plaintiff need not know the expiration date. Slip op. at 16-18.

Finally, the plaintiff claimed waiver. Strike four. The defendant had pleaded the statute of repose and cited the statute in its answer. Slip op. at 18-19.

Again, a word to the wise. Check for statutes of repose when answering the complaint and filing dispositive motions.

Full post as published by Drug and Device Law on August 28, 2009 (boomark / email).