Patterson v. Novartis Pharm. Corp.

• Decision Date: 19 December 2012
• Docket Number: C.A. No. 11–402.
• Citation: 909 F.Supp.2d 116
• Parties: Wayne PATTERSON and Wayne Patterson as Administrator of the Estate of M. Margaret Patterson, Plaintiffs, v. NOVARTIS PHARMACEUTICALS CORPORATION, Defendant.
• Court: U.S. District Court — District of Rhode Island

909 F.Supp.2d 116

Wayne PATTERSON and Wayne Patterson as Administrator of the Estate of M. Margaret Patterson, Plaintiffs,

v.NOVARTIS PHARMACEUTICALS CORPORATION, Defendant.

C.A. No. 11–402.

United States District Court,

D. Rhode Island.

Dec. 19, 2012.

John J. Vecchione, Valad and Vecchione, PLLC, Fairfax, VA, Kevin J. Holley, Kevin N. Rolando, Gunning & Lafazia, Inc., Warwick, RI, for Plaintiffs.

Lawrence G. Cetrulo, Andrew R. McConville, Boston, MA, Ranjit S. Dhindsa, Rebecca J. Fiebig, Robert Eric Johnston, Washington, DC, for Defendant.

MEMORANDUM AND ORDER

MARY M. LISI, Chief Judge.

This matter is before the Court on Plaintiffs' objection and Defendant's partial objection to a Report and Recommendation issued by United States Magistrate Judge Lincoln D. Almond. Magistrate Judge Almond recommended that Defendant's motion for summary judgment be granted. For the reasons set forth below, this Court adopts the recommendation of the Magistrate Judge.

I. Standard of Review

Upon the filing of specific written objections, the Court must conduct a plenary review of a Report and Recommendation addressing dispositive pretrial matters. SeeFed.R.Civ.P. 72(b). The Court must “determine de novo any part of the [M]agistrate [J]udge's disposition that has been properly objected to.” Id. at (3). The Court may “accept, reject, or modify the recommended disposition, receive further evidence; or return the matter to the [M]agistrate [J]udge with instructions.” Id.

II. Objections to the Report and Recommendation

Plaintiffs object to the Magistrate Judge's findings that (1) the Massachusetts savings statute, Mass. Gen. Laws. ch. 260, § 32, (2) cross jurisdictional class-action tolling, and (3) equitable tolling, are not applicable to Plaintiffs' complaint and thus do not toll the statute of limitations. Defendant objects to the Magistrate Judge's finding that Defendant did not meet its burden in establishing an absence of a genuine issue of material fact concerning Defendant's proffered date of accrual for Plaintiffs' claims.

III. Procedural Background

On March 3, 2009, Plaintiffs filed a complaint (“2009 complaint”) against Defendant and eight generic drug manufacturers in the United States District Court for the District of Columbia.¹ Plaintiffs sought recovery for injuries sustained under theories of strict liability, negligence, and breach of warranty. The complaint stated that the drug that harmed Plaintiffs was made by Defendant “and/or” a generic drug manufacturer. On December 18, 2009, the case was transferred by the Judicial Panel On Multidistrict Litigation to the United States District Court for the Middle District of Tennessee (“MDL court”). On March, 15, 2010, Defendant moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). On April 21, 2010, the MDL court granted Defendant's motion and dismissed the case. Plaintiffs then filed a motion to amend the April 21 order, or in the alternative, a motion for leave to file an amended complaint. The MDL court denied that motion and Plaintiffs appealed to the Sixth Circuit. On August 23, 2011, the Sixth Circuit affirmed the dismissal. On September 8, 2011, Plaintiffs filed a complaint in this Court asserting “virtually identical” causes of action and a claim under Massachusetts General Laws chapter 93A. ² Plaintiffs' Objections to the Report and Recommendation at 10.

IV. Analysis

The Court held oral argument on the parties' objections to the report and recommendation and has performed its own independent research of the pertinent issues. At oral argument, Plaintiffs' counsel conceded that, for purposes of this motion, the date of accrual of the causes of action in the complaint is June 30, 2006. Counsel also conceded that, unless a tolling provision applies, the complaint was filed out of time.³

A. The Massachusetts Savings Statute

Plaintiffs contend that because the Sixth Circuit affirmed the dismissal of the 2009 complaint on August 23, 2011, and Plaintiffs re-filed the matter in this court on September 8, 2011, the Massachusetts savings statute, Mass. Gen. Laws ch. 260, § 32, applies and “saves” the complaint.⁴ The Massachusetts savings statute provides, in part, that if an action

is dismissed for insufficient service of process by reason of an unavoidable accident or of a default or neglect of the officer to whom such process is committed or is dismissed because of the death of a party or for any matter of form ... the plaintiff or any person claiming under him may commence a new action for the same cause within one year after the dismissal or other determination of the original action....

Mass. Gen. Laws. ch. 260, § 32 (emphasis added). The statute “permits refiling, within one year, of an action that was timely brought but dismissed ‘for any matter of form.’ ” Kenney v. Massachusetts Department of Unemployment Assistance, No. 11–40231–FDS, 2012 WL 1231949, at *1 (D.Mass. April 11, 2012).⁵ As the Magistrate Judge noted, [i]n cases considering whether or not a case was dismissed for a ‘matter of form’, Massachusetts courts have focused on the question of whether or not the dismissal concerned the merits. That is the essence of what is presupposed when addressing what it means to be a ‘matter of form.’

Corliss v. City of Fall River, 397 F.Supp.2d 260, 266 (D.Mass.2005); see also Rodi v. Southern New England School of Law, 389 F.3d 5, 18 (1st Cir.2004) (describing an earlier version of the statute and noting that the Massachusetts legislature enacted the savings statute to ensure that “where [a] plaintiff has been defeated by some matter not affecting the merits ... which he can remedy or avoid by a new process, the statute of limitations shall not prevent him from doing so”) (internal quotation marks and citation omitted) (emphasis added).

The Magistrate Judge determined that, because the 2009 complaint was dismissed “on the merits,” the Massachusetts savings statute did not apply to Plaintiffs' claims. Plaintiffs object to that determination and argue that the Magistrate Judge placed an “unreasonable and unjustified meaning” on the language of the savings statute. Plaintiffs' Objections to the Report and Recommendation at 6. Plaintiffs contend that the Magistrate Judge erred in determining the nature of the dismissal of the 2009 complaint. Plaintiffs argue that because Defendant's statement of undisputed facts stated that the 2009 complaint was dismissed without prejudice, and Plaintiffs did not dispute that assertion, the Magistrate Judge could not find that the 2009 complaint was dismissed with prejudice. In essence, Plaintiffs argue that because the parties agreed that the 2009 complaint was dismissed without prejudice, the Magistrate Judge was precluded from finding that the 2009 complaint was dismissed “on the merits.” Plaintiffs assert that the dismissal was for a “matter of form,” thus falling within the protection of the Massachusetts savings statute.

The nature of the 2009 dismissal is not a question of fact, but one of law. Courts “are not bound to accept as controlling, stipulations as to questions of law.” TI Federal Credit Union v. DelBonis, 72 F.3d 921, 928 (1st Cir.1995) (internal quotation marks and citation omitted); see also Neuens v. City of Columbus, 303 F.3d 667, 670 (6th Cir.2002).⁶ Neither the MDL court's decision, nor the Sixth Circuit's opinion, stated whether the dismissal was with or without prejudice. “[I]n the absence of any notation to the contrary, we presume that a dismissal is with prejudice.” Velazquez–Rivera v. Sea–Land Service, Inc., 920 F.2d 1072, 1075 n. 5 (1st Cir.1990); see also Pratt v. Ventas, Inc., 365 F.3d 514, 523 (6th Cir.2004); Owner Operator Independent Drivers Association, Inc. v. Comerica Bank, 540 F.Supp.2d 925 (S.D.Ohio 2008).

Notwithstanding that presumption, however, the MDL court granted Defendant's motion for judgment on the pleadings. A decision pursuant to a motion under Fed.R.Civ.P. 12(c) is a decision on the merits in both the First and Sixth Circuits. A Fed.R.Civ.P. 12(c) motion “calls for an assessment of the merits of the case at an embryonic stage....” Perez–Acevedo v. Rivero–Cubano, 520 F.3d 26, 29 (1st Cir.2008) (internal quotation marks and citation omitted) (emphasis added); see also Jones v. Binette, 19 Fed.Appx. 6, 6–7 (1st Cir.2001) (per curiam) (unpublished) (Mass. Gen. Laws ch. 260, § 32 was not applicable to plaintiff's claim because, inter alia, dismissal “was also based in part on plaintiff's failure to state a claim” which was “ an adjudication on the merits, as to which principles of res judicata apply and [ch. 260, § 32] ... has no pertinence ”) (emphasis added) (quoting Liberace v. Conway, 31 Mass.App.Ct. 40, 574 N.E.2d 1010, 1013 (1991)); Ogle v. Church of God, 153 Fed.Appx. 371, 375 (6th Cir.2005) (unpublished) (“the Rule 12(c) motion is a decision on the merits ...”); Asmar v. Detroit News, Inc., 836 F.2d 1347 (6th Cir.1988) (unpublished); see generally Pollard v. Boston Redevelopment Authority, 82 Mass.App.Ct. 1116, 975 N.E.2d 906 (2012) (unpublished) (judgment on the pleadings was an appropriate mechanism for obtaining judicial review of the merits); McCann v. Sullivan, No. 11–01476–B, 2012 WL 4928871 (Mass.Super. Oct. 3, 2012) (dismissal under Mass. R. Civ. P. 12(b)(6)⁷ for failure to state a claim is an adjudication on the merits, thus Mass. Gen. Laws ch. 260, § 32 does not apply).

The Court concurs with the Magistrate Judge's analysis and conclusion that the Massachusetts savings statute does not apply to this matter. The 2009 complaint was dismissed on the merits pursuant to Fed.R.Civ.P. 12(c). Consequently, because that complaint was not dismissed for any matter of form, the Massachusetts savings statute “has no pertinence” to Plaintiffs' complaint. Jones, 19 Fed.Appx. at 6–7.

B. Cross–Jurisdictional Tolling

Plaintiffs contend that the Magistrate Judge failed to perform an in-depth analysis of a question of first impression, i.e., whether Massachusetts...