Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Cal.: Consumer protection suit against drug maker time-barred, (Feb 26, 2014)

By Patricia K. Ruiz, JD

A patient’s delayed discovery of alleged misrepresentation did not toll the statute of limitations of claims against a drug manufacturer for violations of consumer protection laws, as the patient failed to allege facts showing her diligence in discovering the cause of action. In granting the manufacturer’s motion for judgment on the pleadings, the court concluded that the patient’s claim was time-barred (Plumlee v Pfizer, Inc., February 21, 2014, Koh, L).

Background. Pfizer, Inc. manufactures and sells Zoloft, a selective serotonin reuptake inhibitor used to treat major depressive disorder. Laura A Plumlee was prescribed Zoloft in March of 2005 and continued to purchase and ingest the drug until August of 2006. In total, Plumlee spent approximately $162 to purchase Zoloft, paying approximately $3,315 to Pfizer through her own payments and payments from her insurance company. Plumlee alleges that she “relied on the sufficiency and accuracy of Pfizer’s advertisements and Zoloft’s drug label in making her decision to purchase and ingest Zoloft to treat her depression,” and that she would not have purchased Zoloft if she knew that the benefits of taking the drug would not outweigh its serious known side effects.

In her suit claiming violations of consumer protection laws, Plumlee alleges that Pfizer knew of clinical trials and studies that demonstrated consistently that “Zoloft is no better than a sugar pill in treating depression.” In addition, she alleges that Pfizer knew that the drug “had an efficacy problem” before it was approved by the FDA. Based on that information, Pfizer made representations and omissions in its advertising and labeling that Plumlee alleges constitute violations of the Consumers Legal Remedies Act (CLRA), California’s Unfair Competition Law (UCL), and California’s False Advertising Law (FAL). Plumlee’s UCL claim carries a four-year statute of limitations, and her CLRA and FAL claims carry three-year statutes of limitations.

Statute of limitations. The limitations period of a claim in California, or “the period in which a plaintiff must bring suit or be barred,” begins to run when the claim accrues. A claim accrues upon “the occurrence of the last element essential to the cause of action.” The court determined that Plumlee’s claims accrued upon her final purchase of Zoloft in June 2008, as it was the last date on which she could have suffered the economic injury she alleged. Because Plumlee filed her action on January 30, 2013, four years and seven months after her claims accrued and after the limitations period for her claims had run, the court conduced that Plumlee’s claims were time-barred.

Delayed discovery rule. In order to benefit from the delayed discovery rule, according to the court, Plumlee “must specifically plead facts to show (1) the time and manner of discovery and (2) inability to have made earlier discovery despite reasonable diligence.” Because her complaint failed to incorporate sufficient allegations with respect to the time and manner of her discovery of the alleged violations, and because she plead no facts to support a finding that she was not negligent in failing to make the discovery sooner, Plumlee cannot call upon the delayed discovery rule, and her claims remain time-barred.

The case number is 13-CV-00414-LHK.

Attorneys: Christopher Luke Coffin (Pendley Bauldin Coffin, LLP) for Laura A. Plumlee. Mark S. Cheffo (Quinn Emanuel Urquhart & Sullivan, LLP) for Pfizer, Inc.

Companies: Pfizer, Inc.

Cases: Advertising StateUnfairTradePractices CaliforniaNews