In re Norplant Contraceptive Products Liability Lit
| Decision Date | 21 February 1997 |
| Docket Number | No. MDL 1038.,MDL 1038. |
| Citation | 961 F.Supp. 163 |
| Parties | IN RE NORPLANT CONTRACEPTIVE PRODUCTS LIABILITY LITIGATION |
| Court | U.S. District Court — Eastern District of Texas |
Chris Parks, Parker and Parks, Port Arthur, Roger Brosnahan of Brosnahan, Joseph & Suggs, Minneapolis, MN, Turner Branch, Branch Law Firm, Albuquerque, NM, for Plaintiff.
John W. Vardaman, F. Lane Heard, III, Steve Farina, Williams & Connolly, Washington, DC, Paul W. Gertz, Larry Germer, Tonya Connell Adams, Germer & Gertz, Beaumont, for Defendant.
This matter is before the court on Defendants' Motion for Partial Summary Judgment on Limitations Grounds filed on January 28, 1997.1 Plaintiffs filed a response on February 11, 1997. Defendants filed a reply on February 14, 1997. Upon consideration of the motion, response, reply, and applicable law, the court is of the opinion that Defendants' motion should be DENIED.
In order to make a proper determination of the appropriateness of summary judgment on limitations grounds, the court was faced with the following preliminary issues: (1) the applicable statute of limitations periods; (2) the applicability of the discovery rule; (3) the applicability of the American Pipe tolling doctrine; and (4) the applicability of the "piggyback" doctrine.
Under the doctrine of Erie Railroad Co. v. Tompkins,2 and its progeny, where a claim is derived from state law, state law governs the applicable statute of limitations. Therefore, for purposes of the plaintiffs' claims for strict liability, negligence, and misrepresentation, "a person must bring suit for ... personal injury ... not later than two years after the day the cause of action accrues."3 Plaintiffs claims under the Deceptive Trade Practices Act are governed by a separate two-year statute of limitations, found within the DTPA itself.4
In Texas, "[t]he limitation period for a products liability action does not begin to run until a plaintiff discovers or should have discovered his injury and its cause in fact."5 Therefore, Plaintiffs' causes of action (except for breach of warranty) began to accrue when each plaintiff knew or should have known that the alleged side effects she was experiencing were caused by Norplant.
In American Pipe & Construction Co. v. Utah,6 the Supreme Court determined that tolling the limitations period during the pendency of a class complaint was appropriate and not inconsistent with the purposes served by statutes of limitations because the class complaint "notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment."7 Defendants argue, however, that American Pipe is not the law of Texas, and therefore, the court should look to Texas cases to determine if tolling is appropriate.8 The court agrees that the application of an equitable tolling rule is an issue of state law.9
A review of Texas caselaw reveals that several appellate courts have followed American Pipe in holding that the filing of a class action lawsuit tolls the statute of limitations for the putative class members.10 However in Bell v. Showa Denko K.K., the Amarillo Court of Appeals refused to apply the American Pipe tolling doctrine in the context of a mass personal injury suit.11 Defendants argue that Bell, the only Texas tolling case involving a mass tort class action, requires this court to do the same.12 However, the circumstances surrounding the Bell court's refusal to toll the statute of limitations are more complex than just the nature of the class action. First, the issue of tolling was not raised until Bell filed her "Motion for Reconsideration and New Trial."13 Second, only one of the named defendants was also a defendant in the class action.14 Third, Bell did not file suit until 1992, but suffered an injury as early as 1982.15 Fourth, the class action was filed in a federal court in another state and involved a variety of claims.16 Under these circumstances, the Bell court determined that the class allegations did not provide the defendant notice of the type and potential number of claims against it, and therefore, the class action did not toll the statute of limitations.17 Because tolling is an equitable doctrine, the circumstances in Bell warranted that court's decision.
Although the Bell court stated that American Pipe is not the law of Texas, the court did analyze the tolling question as if the basic premise of American Pipe did apply by emphasizing the importance of notice to the defendants.18 Therefore, this court should analyze the tolling issue in the same manner, i.e., did the class complaint provide Defendants with notice of the type and potential number of claims against it? Plaintiffs' class complaint was filed in this court on July 22, 1994, on behalf of "all adult women who have had the Norplant inserted in their bodies and who have sustained damages."19 Although the complaint alleges a variety of claims, Defendants themselves contend that all of Plaintiffs' claims share at least two elements to be proven.20 "Plaintiffs must prove (i) that the warnings Wyeth provided to their prescribing physicians failed adequately to disclose the possible risks associated with the contraceptive and (ii) that this alleged deficiency was the legal cause of their injuries."21 As for the number of potential claims, Defendants need look no further than the number of Norplant Systems prescribed and inserted in order to ascertain that figure.22 Unlike the uncertainty in the number of potential claimants resulting from a toxic chemical spill, Norplant users are readily quantified through Defendants' own sales data. Because Plaintiffs' class complaint provides Defendants with notice of the potential number and type of claims against it, the court recognizes that the limitations periods for Plaintiffs were tolled from July 22, 1994, until the dismissal of the class complaint on August 5, 1996.
As a general rule, American Pipe does not apply to toll limitations for subsequently filed class actions.23 This principle is referred to as the "piggyback" doctrine, a term coined by Judge Higginbotham in Salazar-Calderon, and it was established in order to prevent abuse of the equitable tolling doctrine.24 Relying on Salazar-Calderon, Defendants argue that the piggyback doctrine only allows the court to toll limitations for the first-filed class complaint encompassing these plaintiffs.25 In that case, Defendants contend tolling is only appropriate for the 91 days that the class complaint in Williams v. Wyeth-Ayerst Laboratories, Inc.,26 a California state court case, was pending.27 This court does not read Salazar-Calderon to require such strict adherence to the piggyback doctrine.
Salazar-Calderon involved a series of actions brought by several hundred Mexican nationals against the Presidio Valley Farmers Association alleging, among other things, violations of the federal Farm Labor Contractor Registration Act. The first action (the Lara suit) was filed as a class action in the El Paso Division of the United States District Court for the Western District of Texas in April 1979. The El Paso court denied class certification on March 30, 1981. The plaintiffs then filed the Salazar-Calderon and Primero actions in the Pecos division, each suit naming the same 251 plaintiffs, all of whom were members of the putative class in Lara. The district court denied class certification on February 2, 1982. Shortly thereafter, 235 members of the Salazar-Calderon and Primero putative classes filed a separate complaint (the Zuniga suit), in the Pecos division, alleging the same causes of action brought in Salazar-Calderon/Primeto. The Lara case was transferred from the El Paso division to the Pecos division, and the court consolidated all four cases under the Salazar-Calderon heading.28 The plaintiffs argued to the Fifth Circuit that the limitations periods should toll for not only the Lara suit, but also the Salazar-Calderon/Primero class complaint. Noting the particular facts of the case, the Fifth Circuit understandably declined to toll the statute of limitations during the period when class certification in Salazar-Calderon/Primeto was pending.29
In this case, however, the particular facts do not present the same danger of abuse to which Judge Higginbotham referred. Although the allegations in Williams v. Wyeth-Ayerst did encompass Plaintiffs, the case was filed in another state, not in another division of the Eastern District of Texas. Additionally, there is no indication that Plaintiffs relied on the existence of the California state court case to protect their rights as litigants.30 While Defendants' interpretation of the piggyback doctrine would certainly prevent abuse, it would also undermine the rationale underlying the American Pipe tolling doctrine. The whole purpose behind tolling in the class setting is to promote economy and efficiency by deterring the filing of a multiplicity of suits in order to protect litigants' rights. If plaintiffs are charged with knowledge of a class complaint pending in a state court in another state, plaintiffs' attorneys will certainly file suit individually rather than engage in the time-consuming process of scouring the country to determine if a class complaint encompassing their clients is or was pending.
This court has experienced first-hand the degree to which tolling in the class setting promotes economy and efficiency. Since denial of class certification on August 5, 1996, the court has seen the filing of approximately 2000 cases involving over 20,000 plaintiffs. There...
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...App. 1986); Hyatt Corp. v. Occidental Fire & Cas. Co. of N.C., 801 S.W.2d 382, 389 (Mo. Ct. App. 1990); In re Norplant Contraceptive Prod. Liab. Litig., 961 F.Supp. 163 (E.D. Tex. 1997); Staub v. Eastman Kodak Co., 726 A.2d 955, 967 (N.J. Super. Ct. App. Div. 1999); Vaccariello v. Smith & N......