Universal 'Bar Dates' - Dream Or Reality?

Plaintiffs in all fifty states have brought multidistrict litigation (MDL) against your company over a drug it manufactures. The FDA approved a change to the product label over two years ago to warn of the potential association between use of the drug and the injuries at issue in the litigation. Your company sent Dear Doctor letters soon afterward to inform physicians of the label change. National and local media outlets featured the label change prominently in their news coverage for weeks, and advertisements by plaintiffs' law firms have blanketed television and print media for years. Meanwhile, suits alleging warning defects in the former product label — the one your company changed two years ago — continue to mount, even from jurisdictions with two-year statutes of limitations. All of these plaintiffs invoke the discovery rule, which generally tolls the running of the statute of limitations until the date the plaintiff knew, or in the exercise of reasonable diligence, should have known of her injury and its potential causal link to the defendant's product. But did the public events surrounding your company's drug put these plaintiffs on notice of their potential claims and thus trigger all of the relevant statutes of limitations to begin running by a universally applicable date?

During the past ten years, the concept of establishing universal bar dates has slowly but consistently gained acceptance among state and federal courts overseeing pharmaceutical multidistrict and consolidated litigations, with five courts establishing a universal bar date. No bright-line test has emerged for the appropriateness of a universal bar date. Rather, the courts have engaged in fact-intensive inquiries into whether there is a "last possible date" by which all plaintiffs should have known of their potential claims. Courts have considered many factors when establishing bar dates, including the existence of widespread publicity regarding the alleged side effects, Dear Doctor and Dear Patient letters, label changes, press releases, the publication of scientific studies and other medical literature, plaintiffs' attorney advertisements, and even FDA Advisory Panel votes.

1. In Re Diet Drugs Mdl

   In the Diet Drugs multidistrict litigation, the plaintiffs filed their claims more than five years after the diet drugs were withdrawn from the market but argued they could not have discovered that the drugs caused their injury within the statute of limitations period.1 The court rejected this argument, noting the "pervasive" and "widespread publicity accompanying the withdrawal of the diet drugs from the market in September, 1997," including extensive local media coverage, "leading stories on major television network news programs, including NBC Nightly News, CBS Evening News, and The Today Show" and a front-page story in USA Today.2 Moreover, the manufacturer, Wyeth, issued a press release, published full-page ads in leading newspapers, and issued a Dear Doctor letter, all advising patients and physicians of the potential association...