Metropolitan News-Enterprise


Thursday, April 9, 2020


Page 3


Ninth Circuit:

Statute Starts Running When Treatment Has Ill Effect


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has revived an action by three patients who claim that they suffered brain damage from a machine made by the defendant, holding that although California has a two year statute of limitation on product liability actions and the pleading shows that each had a final treatment more than two years before suing, the claims are not necessarily time-barred.

A defense of delayed discovery—argued in the District Court and rejected by Judge R. Gary Klausner of the Central District of California—was not focused upon by the three-judge appeals panel in its memorandum opinion, filed Tuesday. Rather, the judges pointed to the prospect of a delayed effect of the treatments.

In dismissing with prejudice the actions by Marcia Benjamin, Michelle Himes, and Diane Scurrah based on alleged harms they incurred from use of defendant Somatics’s electroconvulsive therapy (“ECT”) devices Klausner assumed significance as to when each patient’s last use of an ECT occurred.  Also dismissed was the claim of Marcia Benjamin’s husband, non-patient Daniel Benjamin, for loss of consortium, with there appearing to be no dispute that the statute of limitation applicable to him paralleled that which pertained to his wife.

Klausner’s Order

Klausner said in his June 19, 2018 order:

“As Defendants argue, Plaintiffs’ claims started to accrue after each Plaintiff’s last round of ECT treatment, the latest of which occurred in September 2014. Thus, unless one of Plaintiffs’ counterarguments prevail, these four Plaintiffs’ claims are time-barred because their claims accrued more than two years before they were filed in September 2017.”

In a rare response to a contention raised by appellants for the first time on appeal, the panel declared that the last date of treatment might not be relevant. It pointed to the California Supreme Court’s 2003 decision in Geneva Towers Ltd. Partnership v. City and County of San Francisco which said (quoting a 1995 Court of Appeal opinion):

“A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred….In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.”

Date of Injury

They pointed out that the operative pleading tells when the patients last used an ECT “but does not allege when Plaintiffs became injured,” saying that Klausner “improperly inferred that Plaintiffs were injured, and Plaintiffs’ causes of action accrued, on the date of their final ECT treatments.”

Accordingly, it reasoned, the pleading “ ‘does not reveal on its face’ that Plaintiffs’ claims were barred by the statute of limitations.”

A footnote says that “Somatics waived any argument” that a new theory should not be considered “by failing to assert it in its answering brief.”

Comprising the panel were Senior Circuit Judge Carlos Bea, Circuit Judge Bridget Shelton Bade and District Court Judge Gershwin A. Drain of the Eastern District of Michigan, sitting by designation.

The case is Riera v. Somatics, LLC, 18-56470.


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