Judge Joseph Bianco
Gaillard has a history of renal disease. She claimed June 2005 exposure to Bayer’s radiology contrast dye Magnevist caused her to develop an incurable disease called nephrogenic systemic fibrosis (NSF). NSF patients are often misdiagnosed. NSF was first raised in September 2008. After undergoing an August 2009 biopsy, NSF was confirmed on Nov. 29, 2009. Gaillard’s sole remaining claims against Bayer are for negligence and strict products liability on theories of design failure and failure to warn. Granting Bayer judgment on the pleadings, the court dismissed Gaillard’s personal injury claims as time barred. Because she discovered her injuries in 2005 and filed her lawsuit in August 2012, she did not bring suit within three years as required by Civil Practice Law and Rules §214-c(2). The court rejected Gaillard’s assertion that the November 2009 confirmation was the true date of discovery. Non-diagnosis or misdiagnosis of symptoms does not alter the rule that Gaillard’s claims began to run under §214-c(2) when she noticed symptoms in 2005. Under Giordano v. Market Am., the court found Gaillard did not qualify for any extension of the three-year limitations period under §214-c(4), the “unknown cause exception.”
