The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
PRETRIAL ORDER NO. 340 (Krulyac Dismissal and Summary
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