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January 5, 2005.

In re: REZULIN PRODUCTS LIABILITY LITIGATION (MDL No. 1348). This Document Relates to: 03 Civ. 8933.

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

PRETRIAL ORDER NO. 340 (Krulyac — Dismissal and Summary Judgment Motions)
This wrongful death — medical malpractice action was commenced in the New Mexico state courts, removed to the district court, and transferred here by the Judicial Panel on Multidistrict Proceedings. The matter is before the Court on the motions of Hugh Naylor, M.D., for summary judgment dismissing the complaint and the motion of the manufacturer defendants to dismiss the complaint, in each case on the ground that it is barred by the statute of limitations.


  The undisputed facts are as follows:

  Dr. Naylor last prescribed Rezulin for plaintiff's decedent on July 28, 1999. Mr. Krulyac died on January 26, 2000. Plaintiff mailed an application for review of her claims against Dr. Naylor to the New Mexico Medical Malpractice Review Commission on January 17, 2003, which issued its decision on March 21, 2003. This action was commenced on March 27, 2003.

  The complaint asserts claims against the manufacturer defendants and Dr. Naylor and contains eight counts or claims for relief: strict liability, negligence, breach of implied warranty, negligent misrepresentation, fraud, negligence, "agent misrepresentation," and medical malpractice. Although the complaint is far from a model of clarity, it appears that only the last claim is asserted against Dr. Naylor. II

  The New Mexico Medical Malpractice Act (the "MMA")*fn1 limits the time for bringing a malpractice action against a qualified health care provider*fn2 to "three years after the date that the act of malpractice occurred."*fn3 It requires also that, prior to filing a malpractice action against such a provider, the plaintiff apply for and have her claim reviewed by the Commission.*fn4 It tolls the running of the statute of limitations upon "submission of the case for the consideration of the panel . . . until thirty days after the panel's final decision is entered . . . and served upon the claimant . . . by certified mail."*fn5 "Submission" occurs on the date the claimant mails her application to the Commission.*fn6 Service of the Commission's decision likewise occurs on the date on which it is mailed to the claimant.*fn7 The limitations period thus is calculated as follows: (1) calculate the number of days in the three year period remaining on the date the application for review is mailed; (2) find the end of the tolling period by adding thirty days to the date of mailing of the Commission's decision (plus three days for service by mail under N.M.R. CIV. P. 1-006(D); (3) add the remainder of the limitations period computed in step 1 to the end of the tolling period calculated in step 2 to determine the end of the limitations period.*fn8 See generally In re Rezulin Products Liab. Litig., 269 F. Supp.2d 317, 318-19 (S.D.N.Y. 2003).

  In this case, Dr. Naylor discontinued the medication on July 28, 1999, so the MMA's limitations period began to run no later than that date. Thus, by the time the plaintiff submitted her claim to the Commission on January 17, 2003, the statute of limitations already had expired. There was nothing left to toll.

  Plaintiff nonetheless resists this conclusion on a number of grounds, all of which lack merit. First, plaintiff argues that the statute was tolled due to the pendency of class actions involving Rezulin, relying on the so-called American Pipe doctrine. See American Pipe and Construction Co. v. Utah, 414 U.S. 538, 544 (1974). As will appear below, this claim is bsaeless for reasons generally applicable to all of the defendants. The short answer in the case of Dr. Naylor alone, moreover, is that none of the class actions upon which plaintiff relies included Dr. Naylor as a defendant, much less any claim of medical malpractice against him.

  Second, plaintiff asserts that the statute was tolled as a result of alleged fraudulent concealment, citing Garcia on Behalf of Garcia v. La Farge, 119 N.M. 532 (1995). Even where fraudulent concealment theoretically might be available to toll a statute of limitations, however, the circumstances constituting the alleged fraud must be pleaded with particularity under Fed.R.Civ.P. 9(b). See, e.g, Brass v. American Film Technologies, Inc., 987 F.2d 142, 152-53 (2d Cir. 1993); Armstrong v. McAlpin, 699 F.2d 79, 88-89 (2d Cir. 1983). This complaint does not even approach making out a legally sufficient claim of fraudulent concealment against Dr. Naylor. In any case, plaintiff's reliance on Garcia for the proposition that New Mexico recognizes the doctrine of fraudulent concealment in medical malpractice cases is wide of the mark. The issue in that case was whether the application of the MMA limitations period in a case in which the plaintiff would have an unreasonably short time within which to sue violated the Constitution. Here, the statute of limitations ran no earlier than July 28, 2002 — long after Rezulin was withdrawn from the market amidst widespread publicity concerning safety concerns and, indeed, long after litigation regarding the drug was rampant. Plaintiff had no shortage of time within which to commence a timely action, assuming that she had acted with reasonable diligence.*fn9 There is no constitutional problem with application of the statute in such circumstances.

  Third, plaintiff relies on the continuous treatment doctrine. In doing so, however, she ignores the fact that New Mexico has rejected the continuous treatment doctrine in cases under the MMA. In re Rezulin Products Liab. Litig., 269 F. Supp.2d at 320-21; Juarez v. Nelson, 133 N.M. 168, 61 P.3d 877, 882 (Ct. App. 2002). Her reliance on a district court case that predated Juarez therefore is misplaced.


  The New Mexico Wrongful Death Act provides that "every action instituted by virtue of the provisions of [the Wrongful Death Act] must be brought within three years after the cause of action accrues. The cause of action accrues as of the date of death." N.M. Stat. Ann. § 41-2-2. As death extinguished all personal causes of action, all of plaintiff's claims are "instituted by virtue of" the Act as, indeed, the complaint alleges. Cpt. ¶ 8. In light of the fact that plaintiff's decedent passed away on January 26, 2000, the statute of limitations expired on or about January 26, 2003 — two months before the commencement of this action — absent some toll or exception.

  Plaintiff seeks to avoid the bar of the statute by reliance on the American Pipe doctrine and fraudulent concealment.

  The fraudulent concealment argument fails for two reasons. First, the complaint does not allege fraudulent concealment with particularity. In any case, as the manufacturer defendants' memorandum demonstrates, this complaint is deficient even apart from Rule 9(b) because, among other things, it fails to demonstrate that "the patient did not know, or could not have known through the exercise of reasonable diligence, of his cause of action within the statutory period." Garcia, 893 P.2d at 432 n. 1 (internal quotation marks and citation omitted). As noted, Rezulin had been withdrawn from the market and litigation was widespread long before the expiration of ...

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