Based on California Statute of Limitations, Novartis Obtains Dismissal of Zometa Case for 2nd Time

August 19, 2014

Judge Michael W. Fitzgerald of the District Court for the Central District of California held, for the second time, that plaintiff’s claims are time-barred under California law and that plaintiff is unable to take advantage of the Maryland statute of limitations in Hendrix v. Novartis Pharm. Corp., No. 2:14-cv-03856-MWF-PLA (C.D. Cal. Aug. 19, 2014).  Judge Fitzgerald had previously dismissed a related action by the same plaintiff in Hendrix v. Novartis Pharm. Corp., 975 F. Supp. 2d 1100 (C.D. Cal. 2013).

The court originally granted summary judgment in favor of Novartis, finding that plaintiff’s claims were barred by the California statute of limitations. Order at 1. That decision is currently under appeal.  After dismissal, plaintiff filed an identical suit in Maryland state court, hoping to take advantage of both Maryland’s three-year statute of limitations and its savings statute. Order at 2-3. Novartis removed the case and sought transfer to the Central District of California.  Plaintiff opposed transfer, arguing that the Maryland district court should decide, among other things, whether the Maryland borrowing statute comports with the United States Constitution, the Maryland Constitution, and the Maryland Declaration of Rights. Order at 2. The Maryland district court rejected plaintiff’s arguments and transferred the case, holding that Maryland’s statutory scheme requires application of California law and that the constitutionality of the Maryland borrowing statute had previously been upheld by that court. Order at 2.

Following transfer, plaintiff moved to stay the case pending resolution of the original action’s appeal and arguing, again, that the Maryland statutory scheme was unconstitutional.  The court denied the motion and found that the Maryland district court had already ruled on plaintiff’s arguments over plaintiff’s contention that the Maryland court had not actually ruled on constitutionality.  Plaintiff’s opposition to Novartis’s most recent summary judgment motion “raise[d] the same arguments made in support of the motion to stay the action.” Order at 2.  Thus, plaintiff faced “two unfavorable prior orders that must be overturned in order to succeed.” Order at 3. However, plaintiff did “not even attempt[] to argue that these issues are appropriate for reconsideration,” and the court found that summary judgment was again proper. Order at 3.