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.
The decedent’s oncologist prescribed Zometa in November 2003 to counteract the effects of cancer that had spread to her bones. She then developed bisphosphonate-related osteonecrosis of the jaw (“BRONJ”). The oncologist said he first learned about an association between the drug and osteonecrosis of the jaw (“ONJ”) in 2004. In August 2005, decedent’s oral surgeon extracted one of decedent’s teeth. He was aware that such procedures were not recommended for patients taking Zometa but he was not aware decedent was taking the drug. Decendent’s Zometa treatment was discontinued in October 2005. Decedent’s dentists subsequently extracted other teeth and noted her bone was exposed at the site of the extractions but without pain or swelling. The oral surgeon saw decedent in April 2006, learned she had taken Zometa, and “explained the effects of Zometa on healing.” He diagnosed “bisphosphonate osteonecrosis” and prescribed an antibacterial mouth rinse. Decedent subsequently saw other doctors whose office notes reflect that they were considering a connection between Zometa and decedent’s BRONJ but their testimony was inclusive as to whether they told decedent about the possible connection. Decedent and plaintiff said it was not until they saw a different oral surgeon in April 2007 that decedent was diagnosed with “Zometa induced osteonecrosis of mandible” and they were told that the drug had caused decedent’s condition. Decedent’s condition worsened; however, she passed away in November 2008 from a recurrence of cancer.
The district court reviewed decedent’s medical history and her doctors’ deposition testimony. The Court said “the record does not show as a matter of law that [decedent] should have known her symptoms were cause by someone’s wrongdoing” by October 2006, i.e., more than three years before filing suit. “[Defendant] points to no testimony where a doctor states that he or she recalls informing [decedent] that she in fact had developed a condition called osteonecrosis of the jaw or bisphosphonate-related osteonecrosis.” “Unlike cancer, the typical progression of bisphosphonate-related osteonecrosis of the jaw is not a matter of common knowledge.” The Court denied the summary judgment motion.
Esposito v. Novartis Pharmaceuticals Corp., C.A. No. 09-563 S, 2015 WL 5474339 (D.R.I. Sept. 18, 2015)
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