Wednesday, July 28, 2010

Cornett v. Johnson & Johnson Part I: Choice of law and statute of limitations

Last Friday, the New Jersey Superior Court Appellate Division issued a decision filled chock-a-block with interesting rulings. Cornett v. Johnson & Johnson, 2010 WL 2867811 (N.J. Super. Ct. App. Div. July 23, 2010). Today we’ll discuss the part of the opinion that resolves the choice of law and statute of limitations issues raised by the appeal of Vonnie Cornett. Tomorrow we (read: Bexis) will analyze the rest of the opinion, which discusses device preemption, parallel claims, and off-label promotion. Those of you who can’t wait until tomorrow have the citation.

In December 2004, Vonnie Cornett’s husband Billie Cornett received a drug-eluting stent made by Cordis, a Johnson & Johnson subsidiary. On May 18, 2005, a cardiac catheterization found a subacute thrombosis in the artery with the stent. Billie died on June 1, 2005, allegedly from subacute stent thrombosis, but Vonnie did not file her complaint until September 2008, more than three years later, and she filed the complaint in New Jersey state court. The trial court granted defendants’ pre-answer motion to dismiss the complaint as untimely.

On appeal, the court had to decide whether to apply the statute of limitations of Kentucky, where the Cornetts lived, or New Jersey, where Johnson & Johnson has its headquarters and the complaint was filed. The court noted that the two states have different statutes of limitations and performed a full choice of law analysis. As you will see when we discuss how the court resolved the statute of limitations point, the decision to do an elaborate choice of law analysis was a bit curious – not necessarily wrong, just curious – because the court found the complaint time barred under either state’s statute of limitations.

On choice of law, the court applied New Jersey’s “most significant relationship” test and decided, after thorough analysis of the relevant factors, to apply Kentucky law because Kentucky was where Billie Cornett lived, received his medical care (including the stent), and allegedly suffered his injury from the stent. Id. at *5-7. Although no surprise, since most courts apply the place of injury’s law in most circumstances, often with only cursory analysis, this ruling is a big deal because it’s New Jersey. Because of the state’s pro-plaintiff reputation (and being the home of a lot of major pharma companies), hordes of out-of-state plaintiffs have descended upon New Jersey courts hoping to take advantage of, among other things, a rather broad discovery rule (it applies to wrongful death actions, for one thing).

But maybe not any more.

The Cornett court could have ended its discussion right there because the complaint clearly was untimely under the law of Kentucky, which gives plaintiffs one year to file personal injury claims (plus an additional year for representatives of decedents who died within one year of the claimed injury) and does not have a discovery rule for product liability claims. But the court went on to say that the complaint also was untimely under New Jersey’s discovery rule, and that discussion should be particularly interesting to those of you who deal with statute of limitations issues – especially in New Jersey.

New Jersey, like many states, applies a discovery rule under which the statute of limitations clock does not start to run “until the injured person discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim.” Id. at *4. The Cornett court said that the diagnosis of the thrombosis in the artery where the stent was implanted five months after implantation should have made the plaintiff reasonably suspect a possible connection between the device and the decedent’s injury. Id. at *8. A reasonable person should have investigated the matter further or contacted counsel, the court said. Id.

The icing on the discovery rule cake, the court reasoned, was that plaintiff alleged it was self-evident from the cause of death that the thrombosis formed within the stent. Id. The opinion doesn’t say, but we presume that plaintiff made this allegation in the portion of the complaint that tried to show the stent caused Billie Cornett’s injuries.

A plaintiff’s own allegations can provide the best response to a discovery rule claim in drug and device cases. The facts plaintiffs plead to support their claims that they were injured by a drug or device almost always were available to the plaintiff at or near the time of the injury. The real question in many discovery rule cases is this: what has changed between the time of the injury and the filing of the complaint, when (pardon the statement of the obvious) the plaintiff clearly knew enough to file a complaint? Usually nothing has changed, which means that the plaintiff knew enough at the time of the injury to pursue a claim.

Plaintiff tried to answer that key question by arguing that the clock did not start until the medical community reached a consensus as to causation, which supposedly happened at some later time. That’s a pretty weak argument – among other things, how is a plaintiff or a court ever to know the exact date on which the medical community reaches consensus, if it ever does? – and the court made short shrift of it: “neither medical nor legal certainty is required if the state of facts would alert a reasonable person to the possibility of an actionable claim, namely, that a third party’s conduct may have contributed to the injury and the conduct might have possibly been unreasonable.” Id. at *8 (citation omitted). The court concluded that the complaint was untimely under either New Jersey or Kentucky law and affirmed its dismissal.

Tune in tomorrow for Bexis’s analysis of the more complicated preemption rulings.

1 comment:

Anonymous said...

Are you doing an analysis of the recent cornet decision by the new jersey supreme court