A couple of weeks ago, we saw a concert by the Fab Faux (we love that name), widely considered to be one of the best Beatles cover bands touring today.  A Fab Faux concert is a tribute, not an impersonation.  For one thing, there are five band members. These are phenomenal musicians and true historians of Beatles music and lore who spare no detail in their quest for accurate renditions of all of the classic songs  When we closed our eyes, it was easy to escape reality and be transported back through the decades to the unprecedented phenomenon and still-never-equaled genius of those four lads from Liverpool.

We daresay that the plaintiff in Johnson v. Smithkline Beecham Corp., 2015 U.S. Dist. LEXIS 42458 (E.D. Pa. Apr. 1, 2015), who filed suit for her Thalidomide injuries more than fifty years after she sustained them, hoped the Court would keep its eyes closed to the inescapable reality that her action was time-barred.  This was not to be.

Plaintiff Debra Johnson was one of fifty-two plaintiffs born in the late 1950’s or early 1960’s who filed state-court Thalidomide suits in Philadelphia against GlaxoSmithKline and certain of its affiliates (“GSK”), along with Sanofi-Aventis and/or Grunenthal GmbH. The cases were removed to the United States District Court for the Eastern District of Pennsylvania on diversity grounds.  Last July, GSK filed a Motion for Summary Judgment on Johnson’s claims, arguing that the claims were barred by the statute of limitations.  In October, plaintiffs in twenty-eight of the remaining cases against GSK moved to dismiss their claims against GSK with prejudice.  Johnson (who has amended her complaint to name only GSK), along with a pro se plaintiff and perhaps a handful of other plaintiffs, are continuing to pursue their claims.

The Court explained that Ms. Johnson was born in Louisiana in 1959 “with extensive and grievous” birth injuries typical of those seen in children whose mothers took the German drug Thalidomide to treat morning sickness while they pregnant.  Johnson, 2015 U.S. Dist. LEXIS 42458 at *10.   From the time that Plaintiff was a “young child,” her mother believed that her morning sickness medication had caused her daughter’s injuries. Id. at *11.   Plaintiff’s parents took no legal action, however, because they “usually [didn’t] sue people.”  Id.

Though she had taken possession of her medical records in the 1970’s, Plaintiff first learned of  her mother’s suspicions in a February 2012 conversation, when Plaintiff was fifty-two and her mother was eighty.  Plaintiff filed suit in September 2012.

The Court, applying Louisiana law, explained that Louisiana’s one-year statute of limitations is an affirmative defense, with defendant carrying the burden of proof, unless “it is evident from the face of a complaint that a claim is time-barred, [in which case] it is the plaintiff’s burden to prove that the action is timely.”  Id. at *16 (citation omitted).  In this case, it was evident from the face of the complaint that Plaintiff’s fifty-year-old claims were time-barred, so Plaintiff “must prove they are not.”  Id., at *18.  However, the Court commented, “Even if I assume . . . that [GSK] must prove with clear and convincing evidence that Plaintiff’s claims are untimely, Defendants have met their burden.”  Id.

The Court held that, contrary to Plaintiff’s arguments, Plaintiff’s mother’s knowledge was imputed to Plaintiff.  The Court explained that, while Louisiana’s minor tolling statute precludes the imputation of a parent’s knowledge to a minor child for limitations purposes, there was no such statute when Plaintiff was a minor, and Louisiana law does not permit retroactive application of the minor tolling statute.  Id. at *18-19.  Plaintiff’s mother knew the cause of her daughter’s injuries -- or at least knew enough to be “obligated to exercise reasonable diligence in ascertaining the cause of her daughter’s injuries” -- in the 1960’s. Id., at *21.  Under Louisiana law, this knowledge was imputed to the plaintiff.

Moreover, the Court emphasized that, “even if [it did] not impute [plaintiff’s mother’s] knowledge to her daughter, Plaintiff’s claims remain time-barred.” Id. at *22.   The Court explained,

. . . Plaintiff undertook some investigation in the late 1970’s when she retrieved her medical records.. . . Yet, she did not look at those records for over 30 years – until 2012.  Had she done so earlier, she would have discovered that her injuries  were “congenital” and bilateral” – conditions which [her own] expert witness opines have long been associated with thalidomide exposure. . . . [Plaintiff] testified that as a mother herself, she knew that birth defects could result from a mother’s ingestion of drugs during pregnancy, yet she never investigated whether this could have caused her injuries.. . . [E]ven a cursory inquiry would have provided Plaintiff with abundant information concerning the connection between thalidomide and her birth defects.

Id. at *22-23.  Plaintiff’s investigation, not undertaken until after her 2012 conversation with her mother, “came decades too late [and] did not toll Louisiana’s limitations clock. . . .”  Id. at *23.

Plaintiff also argued that  GSK “fraudulently concealed both the extent of thalidomide’s distribution in the United States and its dangerousness,” and that her detrimental reliance on this fraudulent concealment tolled the statute of limitations.  Id. at *26-27.  However, Plaintiff failed “to identify a single misrepresentation on which she relied to her detriment.  On the contrary, she explicitly denied that Defendants misled her. . . .” Id. at *27.   Nevertheless, though she conceded “that the GSK defendants never communicated their misrepresentations directly to her, . . . [she argued] that the doctrine should apply if she relied on any of Defendants’ misrepresentations that reached her indirectly.”  Id. at *29.   The Court commented, “Even though state courts have never so held, I am prepared . . . to assume here that Plaintiff’s detrimental reliance on Defendant’s’ indirect representations respecting thalidomide would toll the limitations clock.”  Id   However, “even this unprecedented alteration of the fraudulent concealment doctrine would not save [plaintiff’s] claims,” because there was no evidence that plaintiff “refrained from investigating her injuries or from suing Defendants because of their purported misrepresentations, whether direct or indirect.”  Id. at *29-30.

In sum, a fifty-year-old claim, filed decades too late, was just that, and neither distorted facts nor stretched legal doctrines could save it.  A perfectly obvious result, but readers of this blog are well aware that complacency is perilous.   We are pleased that the Court got it right.