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  • Writer's pictureKirk Hartley

When Should Suit Be Filed by a Potential Pharma Plaintiff?

The yin and yang of litigation creates interesting alternatoives. Today, we hear some on the defense side complain bitterly that “meritless” lawsuits are awful and that more investigation should be required before any suit is filed. Consider, for example, any med mal statute that requires  a series of pre-suit steps. On the flip side, I was struck by Steve McConnell’s  July 9, 2014 post at Drug and Device blog. There, he (reviewed movies – worth reading by itself) endorsed a court’s view that product liability statutes of limitation should begin to run the day a plaintiff knows something adverse happened (in this case, a uterus was pierced by an IUD). According to Steve:

“The statute of limitations starts running from accrual, which is the date “the plaintiff first becomes entitled to sue the defendant based upon a legal wrong attributed to the latter,’ even if the plaintiff is unaware of the injury.”  The limitations period is tolled until the plaintiff discovers, or through the exercise of reasonable diligence should have discovered, the nature of her injury.  The discovery rule applies only where the nature of the injury is inherently undiscoverable.  Here is what is important about Truitt: the court avoids the epistemological quagmire into which too many courts sink, and makes clear that accrual does not await the plaintiff’s discovery of “the legal theory for holding a defendant liable for the action to accrue.”  Awareness of injury is enough and starts the clock.”   

The rule argued for by Steve of course offers multiple benefits to the defense side –  greater simplicity, less to litigate and starts the statute earlier, thereby probably barring more claims. But, on the flip side, it means lawyers need to bring claims before the body of evidence is more fully developed as to the merit of the claims. Thus, the yin and yang of litigation.

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