Metropolitan News-Enterprise


Monday, July 2, 2018


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Ninth Circuit:

Injury Was ‘Discovered’ When Plaintiff Viewed Television Commercial


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has held that a judge erred in dismissing an action as time-barred, without leave to amend, where a proposed amended pleading averred that the plaintiff, diagnosed in 2011 with kidney failure, had no inkling as to the cause of that disorder until viewing a television commercial in 2016 linking it to medication she was taking.

A three-judge panel said in a memorandum opinion, filed Thursday, that under California law—applicable in the diversity action—accrual of a cause of action is delayed, by equitable tolling, until discovery of facts putting a reasonable person on notice that a harm that was suffered was the result of actionable misconduct.

The plaintiff, Cindi Bekins, in 2016 sued drug maker AstraZeneca, manufacturer of three of the various proton pump inhibitor medications (“PPIs”) she had been taking alternately, by prescription, since 2000 for heartburn and acid reflux.

District Judge Michael M. Anello of the Southern District of California dismissed the case without leave to amend based on a two-year state statute of limitation, which he determined began running in 2011. He declared that any effort to cure the pleading would be “futle.”

In reversing his action, the memorandum opinion says that Anello was correct in finding that the initial pleading “fell short of establishing her entitlement to tolling based upon the discovery rule, because it contained no facts regarding how she discovered that her kidney failure may have been caused by AstraZeneca’s wrongdoing.” However, it says that the proposed amended pleading did spell out the circumstance under which Bekins discovered, shortly before filing her action, a possible link between the medication and the malady.

The opinion sets forth:

“Although it is true that Bekins knew she was suffering from kidney failure in 2011, that fact alone is not enough….The proposed amended complaint sufficiently alleges that in 2011, Bekins had no reason to believe that AstraZeneca’s PPI class of pharmaceuticals—or any other wrongful cause, for that matter—caused her kidney failure. Therefore, her duty to investigate was triggered by her viewing of the TV commercial in 2016, not by her initial diagnosis.”

A footnote cautions:

“This case is still at the pleading stage. During discovery, additional facts may come to light that require the parties to revisit the statute of limitations issue. Our decision today should not be read to prohibit them from doing so.”

The case is Bekins v. AstraZeneca Pharmaceuticals LP, 17-55461.


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