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November 2015 Archives

R.I. Federal District Court Denies Drug Manufacturer's MSJ Based on Statute of Limitations

In the context of drug product claims, Rhode Island's Supreme Court has liberally construed Rhode Island's three-year statute of limitations for personal injuries, R.I.Gen.L. 9-1-14 . In Anthony v. Abbott Labs., 490 A.2d 43, 46 (R.I. 1985), the Court held that the statute of limitations on such a claim does not begin to run until the injured person should have, with reasonable diligence, discovered the drug manufacturer's alleged wrongful conduct. The Anthony court said that a person who was experiencing adverse effects of a drug might reasonably assume that it was an acceptable or unforeseeable consequence or side effect of an otherwise effective medication. In subsequent decisions the Court has said that the trial court must consider information the person received from his or her doctor as well as the state of common knowledge respecting injuries associate with the product. See, Zuccolo v. Blazar, 694 A.2d 717 (R.I. 1997); Renaud v. Sigma-Aldrich Corp., 662 A.2d 711 (R.I. 1995). The case law underlies the fact-intensive analysis in a recent decision by Rhode Island's federal district court denying a drug manufacturer's motion for summary judgment based on the statute of limitations.

R.I. Superior Court Permits Discovery of Defendant's Testimony in Other, Similar Cases

The Rhode Island Superior Court has permitted three plaintiffs in consolidated products liability cases to discover all deposition and trial testimony by a product manufacturer's employees in other cases despite a Texas federal court protective order that purportedly makes such testimony undiscoverable. 

Fair Debt case remanded based on lack of consent to removal

Rhode Island's federal district court has remanded a Fair Debt Collection Practices Act case to state court because not all the defendants expressly consented to removal within 30 days of the removal.  Plaintiff filed suit in Superior Court alleging violations of the FDCPA, as well as of the Rhode Island Fair Debt Collection Practices Act and the Rhode Island Deceptive Trade Practices Act.  The suit named one individual and two corporations as defendants.  No defendants answered the case and default entered.  An hour after default entered, the individual removed the case.  The removal notice said that "[u]pon information and belief, all other codefendants would consent to the Removal..."  However, the corporations did not file a consent or otherwise express their consent to the court.  Plaintiff moved to remand arguing that all defendants must consent to removal, the corporate defendants had not consented, and the case should be remanded. 

Strauss Factor Obtains Summary Judgment on Asbestos Claims

On July 22, 2015, the Rhode Island Superior Court granted summary judgment to Strauss Factor's client based on the Ohio statute of repose for improvements to real property. The client manufactured power-generation turbines installed in power plants in Ohio and Michigan. Plaintiff alleged he had been exposed to asbestos in insulation blankets installed on the turbines. Strauss Factor filed a motion for summary judgment arguing the turbines were improvements to real property under both the Ohio and Michigan statutes of repose. Plaintiff argued that the Michigan statute of repose should not apply because most of plaintiff's exposures occurred in Ohio. Plaintiff argued the Ohio statute of repose should not apply because an unpublished Ohio trial court decision had held that asbestos claims were governed by the Ohio statute of repose for products liability claims that contained an express exception for asbestos claims. The Rhode Island Superior Court held that it would apply Ohio law all to all of plaintiff's alleged exposures. It then held that the Ohio statute of repose for improvements to real property controlled because it had a clause stating it applied "notwithstanding" the provisions of any other applicable statute. Accordingly, the court granted the summary judgment motion. Plaintiff has filed a motion for reconsideration that is presently pending before the court.

Strauss Factor Obtains Summary Judgment on Fair Debt Claims Against Client

On April 27, 2015, the First Circuit issued an unpublished Judgment affirming the dismissal of claims under the Fair Debt Collection Practices Act ("FDCPA") against our client, Twin Oaks Software Development, Inc. On May 30, 2014, the district court had adopted Magistrate Sullivan's Report and Recommendation that Twin Oaks' summary judgment motion be granted. Laccinole v. Twin Oaks Software Development, Inc., No. CA 13-716 ML, 2014 WL 2440400 (D.R.I. May 30, 2014). Plaintiff Christopher Laccinole, who has filed numerous FDCPA claims in federal and state court, joined a fitness club in 2008. Twin Oaks serviced the fitness club's membership accounts from the time new members joined, including sending of late letters for monthly dues. In 2013, Plaintiff's credit card company declined to make a dues payment. Twin Oaks sent Plaintiff two "Friendly Reminder" letters. Plaintiff sent a "validation" letter and then sent a second letter threatening suit if Twin Oaks did not settle his claims against it for alleged FDCPA and state law violations. Twin Oaks did not respond, in part because the fitness club reported the dues had been paid.