Opinion
Mdl No. 1407.
December 2, 2004
ORDER GRANTING BAYER'S MOTION FOR SUMMARY JUDGMENT
This matter comes before the court on a motion by defendant Bayer Corporation for summary judgment against the above-named plaintiffs. Having reviewed the briefs filed in support of and in opposition to this motion, the court finds and rules as follows.
A. Background
Bayer asserts that each of the plaintiffs subject to this motion has filed his or her complaint in excess of the time allowed by the applicable statute of limitations under California law. Jo Hill suffered a stroke in 1988 or 1989; she filed her complaint on July 22, 2003. Marta Kuehne suffered a stroke on August 1, 1992; she filed her complaint on October 24, 2003. Ladonna Curto suffered a stroke on December 26, 1995; she filed her complaint on December 11, 2003. Rezso Horvath suffered a stroke on May 3, 1999; he filed his complaint on December 26, 2003. And Anne Marie Mancebo suffered a stroke on December 10, 1997; she filed her complaint on March 2, 2004.
B. Discussion
1. Summary Judgment Standard
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In evaluating a motion for summary judgment, the court accepts the nonmoving party's allegations as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "a factual dispute is genuine only if nonmovant's evidence is substantial enough to require trial." Id. If the facts do not reasonably support an inference that the nonmoving party would have the burden of establishing at trial, the question is one of law to be made on summary judgment. See Matsuhita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 593 (1986). Once the moving party has discharged its burden of demonstrating an absence of evidence supporting the nonmoving party's claims, a scintilla of evidence, argument, and legal theories will not defeat summary judgment unless they are supported by concrete factual allegations. Liberty Lobby, Inc., 477 U.S. at 249-52.
2. Statute of Limitations
The parties do not dispute that under California law, the statute of limitations relating to these personal injury cases is one year. Cal. Civ. Proc. Code § 340(3). It is also undisputed that the statute can be tolled from the date that a plaintiff suspects or should have suspected that her injury was the result of some tortious conduct or wrongdoing. See McKelvey v. Boeing North American, 86 Cal. Rptr. 2d 645, 651 (Cal.Ct.App. 1999). The initial burden is on the party asserting a statute of limitations defense. California Sansome Co. v. U.S. Gypsum, 55 F.3d 1402, 1406 (9th Cir. 1995). Once a party makes an initial showing that the claim is time-barred, the burden shifts to plaintiff to produce evidence justifying reliance on tolling under the discovery rule; that she did not know, and could not, through reasonable diligence, have known about the connection between her injury and defendant's actions. See Hopkins v. Dow Corning Corp, 33 F.3d 1116, 1120 (9th Cir. 1994) ("To invoke the discovery rule, plaintiff must plead facts which show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.").
In the instant motion, Bayer asserts that the statute of limitations began to run on all five claims on November 6, 2000, the date of the FDA health advisory recommending that PPA be removed from over the counter medication, and defendants voluntarily ceased marketing PPA-containing products. Bayer cites numerous television, newspaper and internet reports concerning the announcement and the link between PPA and certain injuries. Bayer also alludes to active, high-profile solicitation by plaintiffs' attorneys for clients allegedly injured by PPA.
The court finds that Bayer has thus met its initial burden of demonstrating that the statute of limitations has run on plaintiffs' claims. In response, plaintiffs offer no evidence whatsoever that they did not know about the connection between PPA and their injuries, or that they had some reason not to suspect such connection. The sparse legal argument in plaintiffs' opposition brief — a mere assertion by counsel that plaintiffs could not have known of the connection — is insufficient to meet plaintiffs' burden. Plaintiffs have thus failed to raise a triable issue of fact, entitling defendant Bayer to summary judgment.
For the foregoing reasons, Bayer's motion for summary judgment is GRANTED. The cases to which this motion pertains are hereby DISMISSED.