An injured person has a limited amount of time to bring any claim. Statutes of limitations are generally matters of state law, so determining which state’s law applies to a given claim is very important. When a case is in federal court based on diversity of citizenship, the district court will apply the statute of limitations law of the forum state. In New York, the applicable statute of limitations will depend on where the action accrued. If a non-resident’s claims accrued in New York, the New York statute of limitations will apply. If a non-resident files suit based on a claim that accrued outside the state, New York law requires the application of the shorter statute of limitations period, along with all tolling provisions under either state’s laws. New York Civil Practice Law and Rules § 202.
The U.S. District Court for the Southern District for New York recently applied this law to a case involving an injury allegedly resulting from the use of a medication. In Haimowitz v. Novartis Pharmaceuticals Corp., a woman had been living in New York when she was prescribed Aredia for multiple myeloma. Her medical records indicate that she received the medication monthly from December 1995 through May 1997, and again from August 1997 through March 2002. In July 1997, she had a molar surgically removed. In November of that year, she complained of exposed bone at the extraction site, as well as swelling and pain. She would seek treatment repeatedly from that time until August 2002 for infections and exposed bone. She had surgery for resection of the mandible in August 2002.
She lived in New York the entire time she was treated with Aredia, but she moved to Maryland in 2002. Her new oncologist stopped the Aredia treatment. Her medical records reflect continuing problems with her jaw over the next several years. They also indicated a belief by some of her doctors that the issues were the result of bisphosphonate-related osteonecrosis (“ONJ”). The woman filed suit against the pharmaceutical manufacturer for tort and breach of warranty in December 2009. Her children were substituted as plaintiffs after her unrelated death. The defendant subsequently moved for summary judgment on the grounds that the claim was time-barred.
The plaintiffs argued that the Maryland statute of limitations applied because the woman was living in Maryland at the time she discovered the medication had caused her injuries. The defendant argued that the New York statute of limitations applied because the woman had lived in New York when she received the treatment and when she first developed symptoms.
The court found that, essentially, the summary judgment would be appropriate if the claims were untimely under New York law, regardless of whether they accrued in New York or Maryland. The court first applied the New York statute of limitations, noting it would proceed to Maryland law only if the claims were found to be timely under New York law.
Pursuant to N.Y. C.P.L.R. § 214-c, the statute of limitations for an injury caused by latent effects begins to run on the date of the discovery of the injury or the date the plaintiff should have discovered it through reasonable diligence. In New York, discovery does not require a diagnosis. Case law has held that the clock begins to run when the injured person experiences symptoms, not when she receives a diagnosis.
The court found the tort claims were barred. The action was filed in December 2009. The medical records show the woman began experiencing related symptoms as early as 1997. She had surgery in 2002. By that time, some of her doctors had diagnosed her with “Aredia-induced osteonecrosis.” The court found that even if the symptoms she experienced in 1997 were not sufficient to trigger the statute of limitations, she was on notice of her injury by August 2002. The statute of limitations began to run at that time, even if she was not certain what caused the symptoms.
The court found the claims were barred unless the plaintiffs could show they were tolled. The plaintiffs pointed to the “unknown cause exception,” which applies to novel injuries or those that are hard to detect, with causes that are initially unknown. This exception tolls the statute of limitations for no more than six years, allowing the plaintiff up to five years to ascertain the cause and another year from the discovery of the cause to file a lawsuit.
The court found, however, that even if the exception applied, the plaintiff still would have filed within six years from August 2002. Thus, her claims were barred, even if the exception applied.
The court then looked to the warranty claims. The court noted that the statute of limitations on a breach of warranty claim against a drug manufacturer will generally begin to run at the time of the latest sale. The breach of warranty claims were therefore barred as well, since the woman last received the drug in 2002 and did not file until well after the four-year statute of limitations for a warranty claim had run.
The court granted the defendant’s motion for summary judgment.
As this case illustrates, it is important for a person who suspects his or her illness was caused by a medication to seek the representation of a skilled New York personal injury attorney as soon as possible. There is a limited amount of time to pursue the claim, and it may not always be clear when that time begins to run. A knowledgeable attorney can advise you on how long you may have to file a claim.
The Law Offices of Nicholas Rose, PLLC offers free consultations. Call 1-877-313-7673.
Haimowitz v. Novartis Pharmaceuticals Corp., December 11, 2015, United States District Court, Southern District of New York
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