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Case Notes

By ALM Staff | Law Journal Newsletters |
January 29, 2009

Plaintiff Failed to Prove Insanity to Toll the Statute of Limitations

Love v. Wyeth, ___ F. Supp.2d ___, 2008 WL 3198263S (N.D. Ala. July 24, 2008).

A consumer who suffered a stroke after ingesting cold medicine containing phenyl-propanolomine (PPA) was not “insane” for purposes of tolling the statute of limitations on the consumer's Alabama law negligence and breach of warranty claims and claims under the Alabama Extended Manufacturers Liability Doctrine (AEMLD) against a pharmaceutical company. The consumer admittedly re-learned how to perform basic activities. He was able to testify under oath. He did not require a guardian to proceed in the action.

Plaintiff's Claims of Osteonecrosis Voluntarily Dismissed

In re: Fosamax Products Liability Litigation (Greene v. Merck & Co. Inc.), 1:06-MD-1789, S.D.N.Y., Dec. 10, 2008.

In her June 2006 action, the plaintiff claimed to have developed osteonecrosis of the jaw (ONJ) in May 2004, two months after she started taking Fosamax. She stopped taking the drug in February 2006. Merck & Co. Inc. did not respond to an Aug. 8, 2008, proposed dismissal stipulation. In mid-October, Merck chose the plaintiff's action as a trial case, hoping to use it as a vehicle for a summary judgment ruling that ONJ cannot result from less than three years' use of Fosamax. Its Oct. 24, 2008, reply to an Oct. 21 letter refused agreement to dismissal. The court granted the plaintiff's motion to dismiss her claims voluntarily, without prejudice, under Federal Rule of Civil Procedure 41(a)(2), concluding that the five factors enumerated in Zagano v. Fordham Univ. favored dismissal. The plaintiff displayed no “undue vexatiousness” or “ill-motive” and apparently did not file or maintain her claims without a reasonable basis to believe that she had ONJ. Further, plaintiff offered a good reason for seeking dismissal at this stage of her case.

New York Has Jurisdiction over Foreign Plaintiff's Claims For Strict Product Liability

Snyman v. W.A. Baum Co. Inc., 04 Civ. 2709, S.D.N.Y., Sept. 30, 2008.

The plaintiff, a New Zealander, was poisoned by mercury that spilled from defendant New York firm's blood pressure measuring device. Mercury was released from the second-hand device in 1996. The plaintiff allegedly lacked confidence to make mercury toxicity claims until May 2001. In September 2002, he was diagnosed with multiple chemical sensitivity (MCS). The court granted the defendant summary judgment on all claims except the plaintiff's negligence and strict product liability claims, and his wife's claim for loss of spousal service. The plaintiff's action had a bona fide connection to the United States because the device was made in, and material witnesses to its 1977 manufacture are located in, the United States.

On the plaintiff's claim that his MCS injury was actionable under New York's “two-injury rule,” the court ordered him to show cause why newly asserted MCS-related claims should not be dismissed in light of the defendant's assertion that his initial MCS injury claim was untimely under New York's three-year statute of limitations for personal injuries caused by latent effects of exposure.

Plaintiff Failed to Prove Insanity to Toll the Statute of Limitations

Love v. Wyeth , ___ F. Supp.2d ___, 2008 WL 3198263S (N.D. Ala. July 24, 2008).

A consumer who suffered a stroke after ingesting cold medicine containing phenyl-propanolomine (PPA) was not “insane” for purposes of tolling the statute of limitations on the consumer's Alabama law negligence and breach of warranty claims and claims under the Alabama Extended Manufacturers Liability Doctrine (AEMLD) against a pharmaceutical company. The consumer admittedly re-learned how to perform basic activities. He was able to testify under oath. He did not require a guardian to proceed in the action.

Plaintiff's Claims of Osteonecrosis Voluntarily Dismissed

In re: Fosamax Products Liability Litigation (Greene v. Merck & Co. Inc.), 1:06-MD-1789, S.D.N.Y., Dec. 10, 2008.

In her June 2006 action, the plaintiff claimed to have developed osteonecrosis of the jaw (ONJ) in May 2004, two months after she started taking Fosamax. She stopped taking the drug in February 2006. Merck & Co. Inc. did not respond to an Aug. 8, 2008, proposed dismissal stipulation. In mid-October, Merck chose the plaintiff's action as a trial case, hoping to use it as a vehicle for a summary judgment ruling that ONJ cannot result from less than three years' use of Fosamax. Its Oct. 24, 2008, reply to an Oct. 21 letter refused agreement to dismissal. The court granted the plaintiff's motion to dismiss her claims voluntarily, without prejudice, under Federal Rule of Civil Procedure 41(a)(2), concluding that the five factors enumerated in Zagano v. Fordham Univ. favored dismissal. The plaintiff displayed no “undue vexatiousness” or “ill-motive” and apparently did not file or maintain her claims without a reasonable basis to believe that she had ONJ. Further, plaintiff offered a good reason for seeking dismissal at this stage of her case.

New York Has Jurisdiction over Foreign Plaintiff's Claims For Strict Product Liability

Snyman v. W.A. Baum Co. Inc., 04 Civ. 2709, S.D.N.Y., Sept. 30, 2008.

The plaintiff, a New Zealander, was poisoned by mercury that spilled from defendant New York firm's blood pressure measuring device. Mercury was released from the second-hand device in 1996. The plaintiff allegedly lacked confidence to make mercury toxicity claims until May 2001. In September 2002, he was diagnosed with multiple chemical sensitivity (MCS). The court granted the defendant summary judgment on all claims except the plaintiff's negligence and strict product liability claims, and his wife's claim for loss of spousal service. The plaintiff's action had a bona fide connection to the United States because the device was made in, and material witnesses to its 1977 manufacture are located in, the United States.

On the plaintiff's claim that his MCS injury was actionable under New York's “two-injury rule,” the court ordered him to show cause why newly asserted MCS-related claims should not be dismissed in light of the defendant's assertion that his initial MCS injury claim was untimely under New York's three-year statute of limitations for personal injuries caused by latent effects of exposure.

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