Nevada's Discovery Rule Saves Tylenol Suit Against J&J

Nevada's Discovery Rule Saves Tylenol Suit Against J&J Aaron Couture

Nevada law applied to a case in federal court in Philadelphia has preserved the wrongful-death claim made by the parents of an infant who died after taking Tylenol.

The two-week-old baby, Tracen Sherfey, was given the medicine at his home in Nevada in 2009, but his parents didn’t file a suit until 2012, nearly three-and-a-half years after the death.

Johnson & Johnson—which owns the maker of the infant Tylenol, McNeil Pharmaceuticals—argued that the claims would be barred by the two-year statute of limitations for wrongful-death claims. Both Pennsylvania and Nevada have the same two-year statute of limitations, but Nevada law doesn’t start running the clock until the plaintiff realizes that the injury was caused by another party.

In this case, Stacy and Neil Sherfey didn’t know that the batch of Tylenol they had given to their baby had been recalled until April 2012, according to the opinion.

Pennsylvania has no such discovery rule for wrongful-death cases.

“We stated in an earlier decision that we agreed with defendants that Pennsylvania’s statute of limitations is applicable to plaintiffs’ wrongful-death claim,” said U.S. District Senior Judge Robert F. Kelly of the Eastern District of Pennsylvania. “However, upon consideration of the more extensive briefings filed by the parties on the issue of whether Pennsylvania or Nevada’s statute of limitations is applicable to plaintiffs’ wrongful-death claim and, after further consideration of the law regarding such, we are now of the opinion that Nevada’s two-year statute of limitations applies to plaintiffs’ wrongful-death claim.”

With the Nevada statute of limitations comes the discovery rule, so, the Sherfeys’ claim could survive.

The Sherfeys had filed suit in the Philadelphia Court of Common Pleas, the jurisdiction in which the Tylenol had been manufactured, and Johnson & Johnson had removed it to federal court on diversity grounds.

Kelly explained that federal courts sitting in diversity jurisdiction apply the forum’s choice-of-law rules to find the applicable statute of limitations for a case and that Pennsylvania courts usually apply Pennsylvania statutes of limitations.

“A limited exception to this general rule is provided by Pennsylvania’s ‘borrowing statute,’” he said, “which provides that ‘the period of limitations applicable to a claim accruing outside this commonwealth shall be either that provided or prescribed by the laws of the place where the claim accrued or by the law of this commonwealth, whichever first bars the claim.’”

Johnson & Johnson had argued that the “borrowing statute” would require the court to apply Pennsylvania’s statute of limitations, which would bar the claim.

However, the judge said, “Under the plain language of the borrowing statute, neither the law of Nevada nor the law of Pennsylvania bars the wrongful-death claim first,” since they have the same two-year statute of limitations.

“Thus, on the face of the borrowing statute, because Pennsylvania does not bar the claim first, Nevada, being the jurisdiction where the claim accrued, would have its statute of limitations applicable to the instant wrongful-death claim,” Kelly said.

The judge looked to the U.S. Court of Appeals for the Third Circuit’s 1980 opinion in McKenna v. Ortho Pharmaceutical, which had characterized the “borrowing statute” as requiring courts to examine the law of the state where the case arose to find the proper period of limitations and the point at which it begins to run.

Beyond that, the judge found that even if the Pennsylvania statute of limitations would apply to the case, the principle of depecage would allow for the Nevada discovery rule to apply as well.

Depecage recognizes that different state laws can be applied to different aspects of the same case since choice-of-law analysis is issue-specific, Kelly explained.

He cited to the Third Circuit’s 2006 opinion in Zavecz v. Yield Dynamics, which said, “It follows from the principle of ‘depecage’ that a court’s application of one state’s law to one issue in a case does not preclude the court from deciding that another state’s law governs another issue in the same case.”

Saranac Hale Spencer can be contacted at 215-557-2449 or Follow her on Twitter @SSpencerTLI.

(Copies of the 22-page opinion in Sherfey v. Johnson & Johnson, PICS No. 14-0943, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)