For many citizens, appellate courts represent
a venue of last resort when seeking to rectify failures by trial courts.
Two elements of civil law, however, act as a
barrier to equality under the law: The discovery rule and the lengthy,
expensive process of petitioning courts for a hearing. Together, these two
obstacles combine to provide a legal pathway for deep-pocketed and lawyered-up
defendants to run out the clock on disadvantaged plaintiffs.
The
discovery rule and statute of limitations
Most civil lawsuits are constrained by a rule
called the statute of limitations, which limits the time
plaintiffs have to initiate legal action. The statute of limitations “tolls” --
as in, the clock to file suit begins -- from the date at which a defendant
could reasonably be expected to have discovered their “injury”.
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In some cases, the date from which a plaintiff
can reasonably be expected to have “discovered” their injury is subjective.
That’s why a rigid statute of limitations subject to a discovery date open to
interpretation by judges in trial court often prevents plaintiffs from seeking
redress through the courts.
For instance, in attorney malpractice cases, a
client operating under an assumed good-faith expectation of legal
representation may not learn of any fraudulent actions by their attorney until
a date that precludes bringing suit under the rules of discovery.
In medical malpractice cases, the discovery
rule and statute of limitations also present a unique obstacle. Because the
particular cause of harm in often complex cases of medical malpractice is not
always evident, establishing the exact date of discovery is subjective. For
example, an incorrect or partial diagnosis, followed by an unsuccessful
treatment may not necessarily reveal an obvious initial date from which to
“toll” the statute of limitations.
To ensure equal, accessible justice before the
law for all, these two elements of civil law need to be reformed. The following
appellate cases illustrate how the discovery rule and statute of limitations be
a serious barrier to justice in instances of both attorney and medical
malpractice:
The
case of Geoffrey Hammond
The case of Geoffrey Hammond illustrates how the
rigidity of the discovery rule in some states can effectively deny any avenue
for legal redress in instances of attorney malpractice. In 2012, Geoffrey
Hammond joined with three family members in hiring attorneys David F. Wentzel
and Scott Blake to represent their interests in a complex inheritance dispute
over their family’s significant assets. Hammond contends that his attorneys
fraudulently and explicitly ignored his stated directives and interests by
misrepresenting ongoing settlement negotiations.
Ultimately, Hammond’s
case was dismissed by the Illinois appellate court as “time-barred” under the
state’s two-year statute of limitations for legal malpractice suits. This
ruling presumed Hammond should have discovered his injury “at the very latest,
upon the entry of the binding arbitration award that determined the
enforceability of the March mediation settlement that he ‘vehemently’ disagreed
with.”
However, this ruling ignores the exigencies of
Hammond’s case and highlights the practical deficiencies of many states’
discovery rules. If Hammond was unaware of his attorneys’ alleged malpractice
until his family’s asset divestiture began in November 2013 -- several months
after a settlement was reached -- how can the statute of limitations have
“tolled” any earlier than that date? Apparently, he should have been aware his
attorneys were lying and this not relied upon their advice.
The
Risperdal lawsuit
The long, complicated path of a lawsuit filed
against Johnson & Johnson over their marketing of the antipsychotic drug Risperdal also demonstrates the shortcomings
of the discovery rule when applied to medical malpractice.
Originally released in 1993, Risperdal was
initially FDA approved only for the treatment of adults with schizophrenia.
However, Risperdal was widely marketed and prescribed as a treatment for a
variety of mental health disorders in children that went well beyond the drug’s
FDA guidelines.
A lawsuit brought by Nicholas Murray in 2013
alleged that the plaintiff developed gynecomastia -- a condition that causes the development of
female breast growth in males -- after being prescribed Risperdal for an
“off-label” non-FDA approved use in children.
A Pennsylvania trial court initially ruled
against Murray, arguing that punitive damages were “time-barred” under the
discovery rule, as the symptoms of Murray’s gynecomastia accrued no later than
June 30, 2009. Subsequently, a Pennsylvania appellate court affirmed the trial
court’s ruling that the plaintiff’s further legal actions against Johnson &
Johnson in 2014 exceeded the state’s two-year statute of limitations. However,
the appellate court’s ruling was overturned by the state supreme court in 2018,
and in October 2019 a Philadelphia jury awarded an $8 billion verdict to Murray.
While Murray ultimately overcame the
restrictive discovery rules in his suit against Johnson & Johnson, it was
also a highly unusual situation. Consider that it took a high-profile,
media-intensive nationwide suit -- over 13,000 individuals have sued Johnson &
Johnson over Risperdal -- against a household-name drug manufacturer to overcome
Pennsylvania’s discovery rule.
If successful litigation in such cases
requires a decades-long, media-friendly case, without significant reforms to
the appellate court and discovery rule, what chance does the average plaintiff
have against a wealthy, lawyered-up defendant?
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