Chief Judge Mary Lisi of the U.S. District Court for the District of Rhode Island adopted Magistrate Judge Lincoln Almond’s recommendation and entered judgment in favor of Novartis in Patterson v. Novartis Pharm. Corp., No. 1:11-402-ML-LDA (D.R.I. Dec. 19, 2012).  Plaintiffs Wayne and M. Margaret Patterson first brought suit against Novartis in March 2009 alleging that Mrs. Patterson developed osteonecrosis of the jaw as a result of her use of the Novartis drug Aredia “and/or” generic pamidronate.  Novartis moved to dismiss the complaint for failure to state a claim under Iqbal and Twombly, noting that plaintiffs had not even alleged that Mrs. Patterson used a Novartis product. Chief Judge Todd Campbell of the M.D. Tenn. agreed with Novartis, dismissed the complaint, and denied plaintiff’s subsequent motion for reconsideration. Plaintiffs took the case up to the Sixth Circuit, which affirmed the dismissal.

Plaintiffs re-filed the action in the District of Rhode Island in September 2011. Novartis moved for summary judgment, arguing that the action could not be re-filed because (1) plaintiffs could not avail themselves of the Massachusetts tolling statute because the prior dismissal was an adjudication on the merits, (2) Massachusetts would not recognize cross-jurisdictional class action tolling, and (3) plaintiffs were not entitled to equitable tolling. The Magistrate recommended that summary judgment be granted for these reasons and plaintiffs objected. After entertaining oral argument on plaintiffs’ objections, Judge Lisi adopted the Magistrate Judge’s ruling on all three grounds in a thirteen-page opinion.

The Court found that under both First and Sixth Circuit law, the first judgment against the Pattersons – an Iqbal/Twombly dismissal – was an adjudication on the merits that could not be saved by the Massachusetts tolling statute. Slip op. at 5-6.  As to cross-jurisdictional tolling, Judge Lisi declined to “embark into an unexplored frontier” and presume that the Massachusetts Supreme Judicial Court would adopt the controversial doctrine.  Id. at 10.  In so doing, the court recognized that courts should “exercise considerable caution” when considering an issue of first impression, and that plaintiffs – who are “masters of the forum” – should not file in federal court where they seek to assert novel state-law theories. Id. at 9-10.  The court also rejected plaintiffs’ plea for application of the doctrine of equitable tolling, holding that this case – where the specter of Rule 11 was raised in the first dismissal – is “a classic example of a party failing to exercise due diligence in preserving his or her legal rights.”  Id. at 13.