Limitation for Fenphen Suit Questioned

members with pph "a right to the full and complete relief allowed by - exceptions to these provisions it must be brought within six years of the date of injury, reviewed wyeth's warnings or any other statements made by wyeth. dr. lane did not one or all of them. in any event, on this record, neither the district court nor this court authorities). would not bar her claim. see ga. code ann. � 51-1-11 (west 2008) (stating that "[n]o exercised jurisdiction over all claims. the fact that pph claims were not settled does not laboratories company; wyeth x also maintained its principal place of business. pondimin was manufactured in virginia, with interneuron pharmaceuticals, inc., to develop and promote dexfenfluramine in the product was first purchased for use or consumption." tenn. code ann. � 29-28-102.6 5 both the settlement agreement and pretrial order (pto) 1415 state that the judgmentaspartofpretrial proceedings);united states ex rel. hockett v.columbia/hca noted, it is apparent that the drafters of the settlement agreement knew how to bar a v. pulmonary hypertension ("pph"), a serious, debilitating, and usually fatal disease, from judgment as a matter of law." fed. r. civ. p. 56(c). our decision in in re bendictin litig., 857 f.2d 290 (6th cir. 1988), does not help relationship to the parties and the place of injury as required by hataway. tennessee's tenn. 2008). the court also denied montgomery's rule 59 motion to alter or amend plaintiff complains the settlement agreement prevented her from relationship to the occurrence and the parties under the principles stated in � 6. court's determination that that relationship was centered in georgia. nevertheless, i also by the local law of the state, which with respect to that issue, has the most significant initially transferred to the mdl court and that court oversaw pretrial proceedings in this tennessee rule of civil procedure 8.03 was amended to add the statute of repose as an affirmative defense the averments cited above satisfy this standard. the tsor is codified at no. 08-5701 montgomery v. wyeth, et al. page 15 the fda approved the sale of the pondimin brand of fenfluramine 20 mg tablets drug, pondimin. ______________________________________ pretrial order 1415 stated: "the court has jurisdiction over the subject matter of this action with philadephia, pennsylvania, samuel l. felker, bass, berry & sims, nashville, in opposing application of the tsor to bar her claim, montgomery argued that achieved by that rule and by the relation of the state to the occurrence and the parties"). forth" in the settlement agreement. the settlement agreement expressly provides: montgomery claims that the district court failed to consider whether the tsor, although pondimin was banned for sale in tennessee part of the time montgomery was taking pph claims. thus, the settlement agreement limits wyeth's ability to raise a statute of its statute of repose defense. see montgomery v. wyeth, 540 f. supp. 2d 933 (e.d. forecloses a claim by a tennessee plaintiff. transfer the case back to the mdl court for interpretation of the settlement agreement, may preclude the bringing of an otherwise meritorious claim." mathis, 719 f.2d at 140 light of the mdl proceedings. whose medical condition does not meet the criteria set out in the settlement agreement. answer, the tsor was probably not a waivable affirmative defense under tennessee law. although about which all class members had notice and an opportunity to object. consistency. fed. r. civ. p. 8(d)(3). from both the contractual arrangements of the nationwide settlement agreement and the fact sold during most of the time montgomery used it.4 injury, the tennessee supreme court has commented, in the context of adopting the new jersey. bendectin does not support the proposition that georgia law should apply interests of those states in the determination of the particular issue." restatement tennessee supreme court held that the applicable statute of repose did not bar the and the wyeth entities maintain their principal places of business in pennsylvania and write separately to further address the multidistrict litigation (mdl) settlement asserting her pph claim until the pph definition was met. the parties argued: gregory j. bubalo, bubalo, hiestand & rotman, plc, louisville, wl 1222042, at *72 (e.d. pa. aug. 28, 2000). although it can be argued that wyeth's 4 plaintiff and defendant had in georgia weighs in favor of georgia, but is weak." see argued: january 14, 2009 *17; in re diet drugs, pto 2623, 2002 u.s. dist. lexis 20323 at *11. montgomery argues that the district court erred in applying tennessee law no. 08-5701 montgomery v. wyeth, et al. page 6 she notes that she was enjoined from bringing this action until she satisfied the as noted by the district court, even if defendants had not relied on the statute of repose in their corporation, ahp subsidiary holding in the determination of a particular issue will depend upon the purpose sought to be penley, 31 s.w.3d at 187 (quoting preamble). in penley, the tennessee supreme court settlement agreement. while the former assertion is easily addressed as a pure question for summary judgment"); see also 28 u.s.c. � 1407(a) ("each action so transferred shall repose operates when "parties may be ignorant about the particular time limitations relating to a wave of litigation involving pondimin, redux, and phentermine. see in re diagnosed. the case was removed to the united states district court for the eastern mckinley, 830 s.w.2d 53, 59 (tenn. 1992). under this approach, "the law of the state any assessment of the timeliness of montgomery's pph claim necessitates an no. 08-5701 court applied the choice-of-law principles from� 6 of the restatement (second) conflict (1) "anticipated life." the anticipated life of a product shall be determined by the expiration date placed date of manufacture. thus, the expirations were at the latest september 2000. taken to tennessee hospitals). expiration dates as required by law, and those expiration dates were three years from the of applying tennessee's statute of repose rather than on the significance of tennessee's advertising in tennessee, and it was lawfully sold in at least 700 tennessee pharmacies during most of the pharmaceuticals, inc., future liability to a reasonable and specific period to be one of the most and concerns with which the legislature had to deal."). the preamble to tennessee proceedings in pennsylvania. see humphreys v. tann, 487 f.2d 666, 667-68 (6th cir. because the expiration date on a package of blood (which was infected with aids and in december 1997, the judicial panel on multidistrict litigation established 32). the risks of its drugs. in support, she provides the testimony of dr. leon lane, m.d., consistentwith the language of tennessee's productliabilitystatuteoflimitations,which b. class action montgomery was not diagnosed with pph until april 2005. she filed the present that tennessee law rather than north carolina law applied to the plaintiff's claim against tenn code ann. � 29-28-102 provides in pertinent part: diet drugs, nos. 1203, 99-20593, 2000 wl 1222042, at *1 (e.d. pa. aug. 28, 2000) tennessee's statute of repose, which requires that an action "be brought within one while pregnant in north carolina, because the plaintiff moved to tennessee, became 1 wyeth. third, the district court observed that montgomery lived in tennessee during (second) of conflict of laws �� 6(b) and (c). see also restatement (second) of conflict c. expiration date and then remanded to the district court in july 2007. defendants moved for summary law. thus, montgomery contends that, as applied to this case, the tsor does not ("pto 1415"). on october 7, 1999, the numerous parties to the action reached an retained authority to do so. upon the defendants' ability to raise certain defenses when those claims were presented. n from nerve cells in the brain and by reducing the reuptake of the released serotonin. in "if anything, the definition is more generous to claimants than it might ignores the fact that assessing liability based on the laws of each state would obviously united states court of appeals montgomery also contends that the district court erred in applying the tsor to for appellees. on brief: gregory j. bubalo, d. brian rattliff, bubalo, hiestand period fixed by �� 28-3-104, 28-3-105, 28-3-202 and 47-2-725, but notwithstanding any law." in re diet drugs, mdl 1203 pto 3085, 2003 wl 22669132, *1, white, circuit judge, concurring. reluctantly, i concur in the affirmance. i purport to dismiss pph claims because they were never asserted in the first place. fenfluramine together with the drug phentermine for weight loss management without time montgomery used it. it became legal to prescribe fenphen in tennessee on march 27, 1997, two - any action against a manufacturer or seller of a product for injury to person or property both diagnosed and latent pph claims and claimants, and that the pph claims were fully at the same time, the settlement agreement "fully preserves" the rights of states that a cause of action accrues when a plaintiff suffers her injury, not when she pondimin in august 1997. claims, causes of action and/or parties by virtue of the fact that the class no. 08-5701 montgomery v. wyeth, et al. page 4 _________________ certified the class and approved the settlement agreement. see id. interpreting the settlement agreement itself. i am therefore constrained to concur in the settlement class and subclasses defined below." in re diet drugs, nos. 1203, 99-20593, 2000 wl montgomery began taking pondimin in 1997. a tennessee resident, "all persons . . . who ingested pondimin." upon settlement, the mdl court dismissed cases uniformly, settle non-pph claims, and preserve pph claims for future litigation voluminous docket � as well as the many related issues in the other cases in this mdl, clinic. furthermore, the georgia doctors allegedly relied on false information from effect of the settlement agreement and pto 1415 in resolving the issue is apparent. for pondimin was expected to be used by customers like montgomery, and where it was in penley, 31 s.w.2d at 187. unaffected by the settlement agreement. however, the settlement agreement barred other defense predicated on failure to timely pursue the claim." as the district court testimony about the clinic's consent form is irrelevant because it did not contain any was prescribed by georgia doctors, and that she signed a consent form with a georgia establish that georgia's contacts are more significant than tennessee's. months after montgomery started taking pondimin. compensation claim even though mississippi did not recognize such a claim and repose is that residents who suffer from diseases with long incubation or relationship to the litigation." id. thus, the most significant relationship "provides a not create a substantive claim that is barred by tennessee law. montgomery filed this case in october 2005. because the undisputed evidence section viii.b.1 of the settlement agreement, and pto 1415, � 11, retain the no. 08-5701 montgomery v. wyeth, et al. page 2 _________________ "any defense based on any statute of limitations or repose, the doctrine of laches, or any rules do not include statute of repose in nonexhaustive list of affirmative defenses). as the district court as a prescription weight loss medication in 1973. pondimin 20 mg tablets were that must be pleaded in an answer. cf. roskam, 288 f.3d at 902 (concluding that michigan's statute of agree with the district court's conclusion that the tennessee courts would apply the 1128, 1140 (6th cir. 1986) (acknowledging that the legislative goals of the tsor are r. civ. p. 8.03 would apply retroactively. see wyeth, 540 f. supp. 2d at 942 n.7. joined. white, j. (pp. 20-23), delivered a separate opinion concurring in the affirmance. federal law governs procedural rules, including when waiver occurs, state law defines the nature of montgomery's claim that liability is more likely to be determined on a national basis subsection 29-28-103, and is plainly one of the defenses asserted. thus, it cannot be `default' rule whereby trial courts can apply the law of the place where the injury of laws, � 145, cmt. c (stating that "the interest of a state in having its tort rule applied valvular heart disease claims, the settlement agreement prevents wyeth from asserting indicates that it would be much more efficient to proceed to summary judgment motions no. 08-5701 montgomery v. wyeth, et al. page 19 experts and has never been challenged as inaccurate. in re diet drugs, under the settlement agreement 1) pph claims were expressly preserved for future no. 08-5701 montgomery v. wyeth, et al. page 10 settlement in accordance with its terms and to enter such orders as necessary. see in re establishes that all pondimin tablets had an expiration date of five or more years before tenn. 1983). and this court has rejected the criticisms made by montgomery. see 6 argued that her pph claim was preserved by the mdl and settlement agreement. regarding the former assertion, i do not agree with the majority that the mdl the "anticipated life of the product" is the "expiration date placed on the product in opposing wyeth's motion for summary judgment, montgomery asserted that caused by its defective or unreasonably dangerous condition must be brought within the the claim is being litigated."). suing until she meets that definition. gribcheck v. runyon, 245 f.3d 547, 550 (6th cir. 2001). summary judgment is proper berman, philadelphia, pennsylvania, for amicus curiae. last, montgomery contends that the district court erred in finding that further the unique to the plaintiff). established mdl 1203 in the eastern district of pennsylvania. the instant case was consideration in the choice-of-law process as a rule which imposes liability"; see also no. 08-5701 montgomery v. wyeth, et al. page 16 preserves the ability to claim different injuries in the future. see tenn. code ann. � 29- whereas, the general assembly finds and declares that the number smith v. priority transp., inc., no. 02a01-9203-cv-00074, 1993 wl 29021, at *3 no. 08-5701 montgomery v. wyeth, et al. page 14 inc., 619 s.w.2d 522 (tenn. 1981); harrison v. schrader, 569 s.w.2d 822 (tenn. said that wyeth waived the defense when it both presented it in its answer and then filed that application of the tsor does not promote any interest of the state of tennessee. voluntarily withdrew pondimin from the market on september 15, 1997, and did not of product liability suits and claims for damages and the amount of or in part by the applicable statutes of limitations and repose," and their affirmative s.w.3d 60 (tenn. ct. app. 2006) (holding that georgia had the more significant i. background only four reported cases of pulmonary hypertension worldwide associated with she was prescribed, and purchased, pondimin on seven of those visits. montgomery saw was that she purchased the product from a third party there. see id. at 944-945. have been much better suited to decide this motion. the settlement agreement bars wyeth from asserting a limitations defense in sum, although georgia has an interest because montgomery was prescribed a plaintiff split her claims; and 3) any conclusion otherwise would conflict with the class montgomery traveled to the med-x clinic in fort oglethorpe, georgia, to receive manufacturers and sellers, it is not inapplicable merely because the believe that if they satisfied the agreed-upon definition of pph, their rights would be significant relationship because tennessee was where montgomery consumed the and he did not work at the clinic when dr. hargett first prescribed pondimin to defendants and the class members, to administer, supervise, interpret, and enforce the based on pph." in re diet drugs, pto 1415, 2000 wl 1222042, at *31 (stating that it, its use was always permitted. tennessee residents were induced to obtain pondimin through third-party examination of the nationwide class action settlement agreement, approved by the a settled claim. nor has she argued on appeal that the district court erred in failing to do so, or in she relied on her prescribing doctors at the med-x clinic to know the risks of pondimin > of the brown class. on november 18, 1999, the parties executed a nationwide class was transferred to the plaintiff) was june 5, 1987, and the plaintiff had filed his product reluctantly agreed and granted summary judgment to defendants on march 19, 2008. statements made by wyeth and he did not draft it. in short, this evidence does not *11 (e.d.pa. oct. 8, 2002). the settlement agreement gives class as applied to this case, outweighed "relevant policies of other states and the relative the statute of limitations begins to run when the patient discovers or reasonably should her pph claim was preserved by the commencement of the mdl and also by the substantive law. see in re diet drugs, pto 2623, 2002 u.s. dist. lexis tenn. code ann. � 29-28-103(a) (west 2008) (emphasis added). is in a position to put the gloss on the settlement agreement that montgomery urges of pennsylvania and became part of mdl 1203. id., at *19. montgomery is a member (e) the basic policies underlying the particular field of law, assuming that the nationwide settlement agreement did not exist, any claim under tennessee (b) the relevant policies of the forum, � 28-1-105(a) (providing that if an action is filed within the statute of limitations and a based on pph: "notwithstanding the foregoing, settled claims do not include claims pondimin without the need to add phentermine toameliorateadverse side effects. before v. wyeth was filed on behalf of all users of pondimin and redux, in the eastern district evidence in the record, tennessee has the most significant relationship to the parties and more significant in tennessee, the state where she actually used the manufacturer's montgomery also claims that the district court misapplied the tsor because law relating to the use of pondimin would be barred unless brought by september 2001. had montgomery that uncertainty as to future liability increased the premiums for product tennessee supreme court has held that, unlike a statute of limitations, a statute of repose is substantive plaintiff's claim. here, however, montgomery did not file her pph claim within the wyeth, wyeth pharmaceuticals, inc., a wholly owned subsidiary of wyeth, and ahp no. 08-5701 montgomery v. wyeth, et al. page 5 its motion for summary judgment before the dispositive motion deadline.7 - 20 mg tablets was three years from the month of manufacture of each lot. the expiration subsequent claim would be precluded, but it does not bar wyeth from raising the statute because she was not fully informed of the risks at the prescribing clinic. she claims that be part of that calculation. in short, as the district court held, tennessee has a strong by the manufacturer when required by law but shall not commence until the date the robins, inc.'s new drug application to market fenfluramine in the united states. . . . tennessee law for determining where a latent injury is suffered. however, the court also this condition to sue wyeth in the tort system"). montgomery's claim remains unaffected by the settlement agreement, as represented district from which it was transferred unless it shall have been previously terminated relationship to the litigation." id. at 59. 3 kentucky, for appellant. michael t. scott, reed smith llp, philadephia, pennsylvania, no. 08-5701 montgomery v. wyeth, et al. page 22 wholesalers in 100-count and 500-count stock bottles. the expiration date for pondimin court therefore concluded that because she developed her injury while living in insurance premiums, including this court in kochins v. linden-alimak, inc., 799 f.2d cost of product liability insurance was substantially increased. no. 08-5701 montgomery v. wyeth, et al. page 9 assembly. in our opinion it represents a reasonable balancing of the conflicting interests � 145 the general principle member is included in the settlement, but the claim based on pph is not explained: least eight times during 1997. each time, she was evaluated by a georgia physician. � 29-28-103(a) ("tsor").2 2008). tennessee follows the "most significant relationship" approach of the were clearly part of the litigation until settlement, and the mdl court expressly servier s.a. ("lls") in france. the drug afforded the same anorexic effects as interest is applying its statute of repose in products liability actions, even when that wyeth, fka american home products the settlement agreement also expressly states that it does not include claims montgomery. the relevant principles to consider are: the restatement provides: montgomery claims that all of the wrongful acts were consummated in georgia (c) the relevant policies of other interested states and the relative interests of those states applicable. although her class action claim was based on the use of pondimin, the harm dexfenfluramine, the chemical cousin of pondimin, was developed by les laboratories time. montgomery received her first treatment in january 1997 and went to georgia at the complaint in that action was filed contacts to be considered in determining which state has the most significant did not commence an action within the tsor. as stated above, montgomery was a no. 08-5701 montgomery v. wyeth, et al. page 20 repose period. generally the law of the state where the injury occurred will have the most significant plaintiff-appellant, - to each claim." rule 8(d)(1) requires that averments in pleadings be "simple, concise, rather than procedural. a statute of limitations nullifies a party's remedy, but a statute of repose montgomery also complains that the settlement agreement prevented her from relationship with wyeth is more significant in tennessee," and agree with the district for the foregoing reasons, as well as those in the district court's thorough and otherwise have been." in re diet drugs, pto 3085, 2003 wl 22669132 repose are substantive as opposed to procedural). however, as the district court also noted, in 2006, - - opted out of the brown class, she still would have had to comply with tennessee's statute of repose. had in this court rather than to ask the transferor court to play catch-up"); kaiser indus. supervise, interpret and enforce" the settlement agreement, such jurisdiction was statute of repose, cf. id. at 914, and she did not refile her claim following dismissal of action in tennessee state court in october 2005, within six months after being state law of tennessee, namely the severe one-year statute of repose for products all these arguments are plausible, and the mdl court might have agreed with period of time in tennessee, and pph is not the only latent disease for the class action, so the case is no longer pending. see in re diet drugs, pto 1415, 2000 the initial action within the one-year period allowed by any savings statute. cf. id. at pa. april 20, 2006) (stating that "[t]he settlement agreement exempts from the tsor because montgomery consumed the pondimin and suffered her injury in tennessee did); cruz v. ford motor co., 435 f. supp. 2d 701, 707 (w.d. tenn. 2006) - tennessee adopted this position "because settlement by the court responsible in mdl 1203. this class was certified to include not suggest that any action against the manufacturer brought within the statute of repose claim preclusion, it did not bar wyeth from raising the statute of repose. by contrast, due process rights). however harsh the result, this is a decision of the tennessee (1) the rights and liabilities of the parties with respect to an issue in tort are determined decided and filed: august 28, 2009 upon us, because such a gloss is rooted in the context, rather than the language, of the choice-of-law analysis does not turn on whether a plaintiff has a viable claim in one hataway, 830 s.w.2d at 59 (quoting restatement (second) of conflict of laws � 145 (1971)). pondimin was wyeth's trade name for fenfluramine. as explained by the district court in the which the legislature decided not to create an exception. to the extent manufactured in richmond, virginia, and distributed by wyeth to pharmacies and for purposes of any statute of limitations or similar time bar, the ahp the action was filed to assert it. stronger interest for the purpose of the choice-of-law analysis. cf. lemons v. cloer, 206 psc, knoxville, tennessee, for appellant. michael t. scott, reed smith llp, pursuant to sixth circuit rule 206 1222042, at *31. the settlement agreement defines pph, and limits a plaintiff from expressly stated that pph claims were not being asserted. the paragraph that defines 1997. wyeth offered uncontested evidence that packaging for pondimin contained the concurring in the affirmance legislature. "statutes of limitation find their justification in necessity and convenience preserved and remained subject to the retained jurisdiction of the mdl court. finally fifty cases of pph by may, 1996. manufacture, package, or distribute it after that time. montgomery stopped using tennessee, for appellees. michael d. fishbein, levin, fishbein, sedran & - because the relevant choice-of-law principles dictate that georgia law should govern. "[u]nder the settlement agreement, claims based on pph, including claims for bringing a pph claim before she had a confirmed pph diagnosis as defined in the judgment of dismissal entered on any ground not concluding the right of action, the provide any evidence about the information drs. shure or hargett had about pondimin, fenfluramine and acts as an appetite suppressant by stimulating the release of serotonin subsidiary holding corporation, also a subsidiary of wyeth, after she developed primary judgment. this appeal followed. (1) year after the expiration of the anticipated life of the product." tenn. code ann. that the pph claims were pending before the eastern district of pennsylvania after the contractually agreed as to the administration of pph claims, but could extinguishes both the right and the remedy. see cronin, 906 s.w.2d at 913 (agreeing that statutes of defenses include the "defenses of the tennessee products liability act of 1978, as three doctors: dr. merton sure, who has since died; dr. david hargett, who lost his rather than logic. . . . they represent a public policy about the privilege to litigate." id. the district court analyzed these four factors. first, the court noted that the place the defendant manufacturer of des, although the plaintiff's mother ingested the drug 2003 u.s. dist. lexis 20221, *16 (e.d.pa. oct. 24, 2003). the problem numerous authorities have noted that statutes like the tsor do not actually lower and direct," and that "[n]o technical form is required." fed. r. civ. p. 8(b)(1). cf. mg tablets directly to consumers. instead the tablets were packaged by third parties. tennessee's conflict-of-laws rules, the settlement agreement did not preserve her right indeed, this court and the tennessee supreme court have repeatedly upheld the that definition is a contractual provisioninafreely-negotiatedsettlement the second facet of montgomery's argument�that the settlement agreement the primary flaw in montgomery's argument is that it focuses on the outcome also jones v. five star eng'g inc., 717 s.w.2d 882, 883 (tenn. 1986) ("the statute in pursuant to georgia law and also that her treating physicians were licensed to practice montgomery, 540 f. supp. 2d at 945. the court further noted that, while not dispositive, in further support of its conclusion that tennessee law should apply, the district almost all of her pondimin tablets, and tennessee is the state where she was diagnosed instead, the settlement agreement left the pph claims unsettled and created limitations noted that there was no indication that montgomery suffered from pph in georgia. the that montgomery did not get the pills in their original packaging because they were star eng'g, inc., 717 s.w.2d 882 (tenn. 1986); harmon v. angus r. jessup assocs., district of tennessee, transferred to the mdl for pretrial proceedings in february 2006, 2 have discovered the injury)). further, based on the assertions in the complaint and harmful effect thereof develops gradually over a period of time, the injury is `sustained' "[i]n responding to a pleading, a party must . . . state in short and plain terms its defenses those whose claims had previously been resolved through litigation or settlement. (roa, vol. 6, at 1028.) montgomery brought this suit, there is no genuine issue of material fact as to the advance tennessee's interest in controlling insurance rates. further, she notes that . . . when the harmful effect first manifests itself and becomes physically ascertainable." sons, inc., 567 f. supp. 505 (m.d. tenn. 1983) (applying the lex loci approach, holding we agree. the federal rules of civil procedure do not require a heightened from a third party. she took at most a few tablets there, and she does not claim to have although this statute is designed to limit product liability costs for for plaintiff is the settlement agreement cannot change tennessee relationship include (1) the place where the injury occurred, (2) the place where the no. 08-5701 montgomery v. wyeth, et al. page 12 physicians desk reference ("pdr"), which was sent to the med-x clinic, mentioned resident and georgia has an interest in regulating a product sold in its , obtained the product through a third party. important keys in solving the perceived products liability crisis. codified in [tenn. code ann.] �� 29-28-101 through 108." (court file no. 8, pp. 2 & of repose.5 - the parties and the occurrence at issue. although it has not ruled on the issue of latent in any event, the action must be brought within ten (10) years from the date on which this court reviews a district court's grant of summary judgment de novo. montgomery, 540 f. supp. 2d at 941. although the result is harsh in this case, it derives "its motion while this action was pending in the mdl," she never asked the court to unless and until the condition of the class member meets the definition was first purchased for use or consumption[.] tennessee wants to protect pondimin's manufacturers and sellers from no. 08-5701 montgomery v. wyeth, et al. page 18 of redux in the united states in conjunction with interneuron was assumed by ahp. serotonin. dexfenfluramine, the "d-isomer" of fenfluramine, is chemically related to 1 (holding that michigan law barring the plaintiff's claim for punitive damages applied, asthetennesseesupremecourthasrecognized,thetennesseeproductsliability aff'd, 37 f.3d 1185 (6th cir.1994); stutts v. ford motor co., 574 f. supp. 100 (m.d. limitations defense or to claim that a class member actually had pph such that her alter these facts. nevertheless, i cannot agree with montgomery's essential assertion does have an interest in regulating a product sold there, tennessee has an in 1992, a series of articles by michael weintraub, m.d., were published in the journal liability actions." penley v. honda motor co., 31 s.w.3d 181, 187 (tenn. 2000); see purchases the product. see tenn. code ann. � 28-3-104(b)(1). second, the district at *2, 2003 u.s. dist. lexis 20221 at * 17. therefore, the settlement mdl because the pending motion for summary judgment involved issues of state law within the time allowed by the tsor. while pph claims were not "settled claims," they products liability act ("tpla") states: the district court ruled that defendants sufficiently pleaded the statute of repose of business in new jersey. lastly, the court determined that "the indirect relationship ultimately consumer prices. the legislature considered the limitation of dismissal of the mdl. while the mdl court retained jurisdiction to "administer, bus were georgia residents from a georgia school district, even though tennessee [t]he principles in the restatement . . . suggest tennessee law should time bar. no. 05-00323--curtis l. collier, district judge. file name: 09a0314p.06 settlement definition of pph and could not have filed this action any earlier. as noted, the district court held that the tsor barred montgomery's claim. there is a our decision in spence v. miles lab., 37 f.3d 1185 (6th cir.1994), is virtually defense because their answer states that "plaintiff's causes of action are barred in whole still be barred by the statute of repose. 7 montgomery was a plaintiff in the mdl.1 1222042, at *69 (e.d. pa. aug. 28, 2000). no. 08-5701 montgomery v. wyeth, et al. page 3 relationship to bus accident that occurred in tennessee since all of the children on the 20323 at * 13 ("any pph claim, of course, will be subject to the eastern district of pennsylvania "retains continuing and exclusive jurisdiction over this increased greatly in recent years, and because of these increases[,] the retained "[w]ithout affecting the finality of this final order and judgment in any way," defendants did not raise it in their answer and waited more than thirty-two months after because this is a diversity action, the law of the forum state, including the definition of `settled claims' those claims based on pph and allows a class member with statute is consistent with the legislative intent. as this court has noted, the statute of claims based upon a diagnosis by a qualified physician of primary pulmonary montgomery was a member of the brown class, which was approved for 974, 978 (del. 1968) (holding that a cause of action for medical malpractice accrues and the first facet of montgomery's argument�that any claimwill suffice to preserve motionsincludingmotionstodismiss,motionsforjudgmentonthepleadings,ormotions the medical director of med-x clinic at the time of her treatment. dr. lane testified united states under the trade name "redux." in 1994, ahp acquired american opinion a rational basis existed between the tsor and goals expressed in the preamble). (holding that the application of ten-year limitation in tsor does not violate a party's litigation; 2) wyeth agreed not to assert the statute of limitations defense or argue that product liability costs, the statute advances that goal. and while georgia warnings from wyeth in georgia. however, there is no support in the record that her statute of repose "was enacted as an important and specific measure to address products liability insurance, which in turn increased the costs of production and court. the policy of tennessee as exemplified through its statute of pondimin there, we agree with the district court's conclusion that tennessee has the as the majority explained, the judicial panel on multidistrict litigation (jpml) case before remanding it back to the eastern district of tennessee in july 2007. on montgomery v. wyeth, 540 f. supp. 2d 933, 944 (e.d. tenn. 2008). to sue for pph, tennessee law rather than georgia law applied, and wyeth did not waive - repose for product liability actions was substantive rather than procedural; noting that the michigan court for which a plaintiff seeks to recover be brought within the statute of repose. 26, 2002, authorizes the district court to enforce pto 1415, including but not limited to involved. thus, a delay, even without knowledge of the hazard involved in the delay, &rotman,plc,louisville,kentucky,gregoryf.coleman,coleman&edwards, 1978); see also spence v. miles lab., inc., 810 f. supp. 952, 960-61 (e.d. tenn.1992), teeters v. curry, 518 s.w.2d, 512, 517 (tenn. 1974) (quoting layton v. allen, 246 a.2d - settlement agreement defined pph and addressed the rights of pph claimants. thus, grant to the transferee district court under �1407 the power to pass upon all pretrial ______________________________________ unreasonablydangerouscondition" be "brought" within a certain time, � 29-28-103 does thoughtful opinion, the judgment of the district court is affirmed. (f) certainty, predictability, and uniformity of result, and 1996 wl 452916, *4 (6th cir. aug. 8, 1996) (unpublished per curiam); jones v. five pph plaintiffs from bringing a claim until they satisfied the definition of pph contained defendants had not waived their statute of repose defense. montgomery argues that interneuron received approval to market redux in the united states in mid-1996. acquisition, fenfluramine was marketed by ahp under the trade name "pondimin." . . . a good idea, but that is a decision for the general assembly, not the liability actions. it did not result from any legal error by the district court. the cause of action�is unpersuasive. in requiring that an "action against the cronin v. howe, 906 s.w.2d 910 (tenn. 1995), does not support montgomery's weighing these factors, the district court concluded that tennessee had the most appeal from the united states district court causing or otherwise bringing about the injury"). and pto 1415 dismissed the third amended complaint. in re diet drugs, nos. 1203, product and suffered the resulting injury, rather than georgia, the state where she id. at 59 n.3 (quoting restatement (second) of conflict of laws � 6(2) (1971)). tsor defense. montgomery further argued that the intent of the mdl was to treat all cyanamid.followingthatacquisition, responsibilityforthe developmentandpromotion court's "familiarity with the issues in this case � a case which by now encompasses a on the product by the manufacturer when required by law but shall not commence until the date the product before 1989, a.h. robins, inc. was responsible for the marketing, sale and labeling of the product on the expiration date imposed by the manufacturer. this reading of the - exercised jurisdiction over those claims in approving the settlement.2 montgomery. as the district court noted, bendectin applied ohio law under ohio even though tennessee would have allowed it). angela montgomery, multidistrict litigation: for the sixth circuit suhrheinrich, circuit judge. plaintiff angela montgomery sued defendants agreement is not what prevented plaintiff from asserting her right to sue purchaser have knowledge of the expiration date, but conditions the anticipated life of interest in regulating a product used here; it chooses to effect that interest (settlement agreement), and to observe that the eastern district of pennsylvania would after attaining the age of majority, whichever occurs sooner. class members. on august 28, 2000, the district court entered pto 1415, which healthcare corp., 498 f. supp. 2d 25, 38 (d. d.c. 2007) (noting that the transferee as the district court observed, wyeth stopped manufacturing pondimin on september 2, pondimin and suffered her injury. by contrast, the only contact she had with georgia released parties shall not assert that a class member actually had pph choice-of-law rules because the drug was manufactured in ohio, where the manufacturer discovery rule for malpractice actions, that where the "injury complained of, and the iii. conclusion for pph. the prohibition is that she developed pph after the statute of defenses. roskam baking co., inc. v. lanham mach. co., 288 f.3d 895, 901 (6th cir. 2002). the relationship, if any, between the parties is centered. id. at 59 (quoting � 145(2)). constitutionality of the tsor. see kochins, 799 f.2d 1128; mathis v. eli lilly & co., prescribed it to montgomery in 1997. thus, montgomery's relationship with wyeth is defendants-appellees. compensatory, punitive, exemplary or multiple damages based on pph are not `settled "unless and until the condition of the class member meets the definition of pph set specifically, the court concluded that the tsor applied to montgomery's claim under conflict because georgia's statute of repose, which limits claims only after ten years, conduct causing the injury occurred, (3) the domicile, residence, nationality, place of manufacturer . . . of a product for injury to person . . . caused by its defective or less than one year after discovering he had aids. id. at 1188, 1190. as the district as the preamble to the tlpa indicates, the general assembly perceived action may be refiled within one year of the dismissal). under those circumstances, the the class clearly provides that "[t]he proposed class and subclasses do not include any suffered any symptoms in georgia. none of the parties are current or former residents compensating its resident for harm done to her. such an interest may be recommended for full-text publication choice-of-law rules, apply. uhl v. komatsu forklift co., 512 f.3d 294, 302 (6th cir. where the injury occurred will be applied unless some other state has a more significant the adverse side effects associated with the use of fenfluramine alone. this regimen pondimin use and no cases of pph, despite the fact that wyeth was aware of more than argument. in cronin, the plaintiff's medical malpractice claim was timely filed and then the settlement class included "all persons . . . who ingested pondimin and/or redux" except 2 expiration date for purposes of applying the tsor. (a) the needs of the interstate and international systems, by strictly limiting the time that actions can be brought. of pph set forth in section i.46. 1 3 ingesting "fenphen,"a combination diet drug therapy that included defendant wyeth's diet occurred when each state has an almost equal relationship to the litigation." id. . . . ."). but cf. in re accutane prods. liab. litig., 560 f. supp. 2d 1370, 1370-71 kochins, 799 f.2d at 1139-40 (recognizing that evidence in support of fact that the persons who have or develop pph to sue. see in re diet drugs, pto 1415, 2000 wl although montgomery obtained pondimin in georgia, she received pondimin no. 08-5701 montgomery v. wyeth, et al. page 8 cf. trahan v. e.r. squibb & settlement agreement. however, as the district court explained: pennsylvania court. identical. there we held the product liability claim was barred by the statute of repose "for injury to person or property" as a member of the brown class, which was certified settlement in accordance with its terms." in re diet drugs, nos. 1203, 99-20593, 2000 in the determination of the particular issue, injunctive relief against any class member who has asserted a claim based on pph, but in re diet drugs, nos. 1203, 99-20593, 2000 wl 1222042, at *1 (e.d. pa. aug. 28, 2000) ("pto 1415"). medical license in january 2001; and dr. joyce gray. substantive law and evidentiary and procedural rules of the place where defense by failing to timely assert it and that georgia law should apply, montgomery of laws: settlement agreement. on the other hand, the mdl court would have been within its (looking at the relevant legislative history and concluding that congress intended "to statute of repose defense, but obviously did not include such a provision with respect to suhrheinrich, j., delivered the opinion of the court, in which gilman, j., not likely to be accomplished by the means selected based on the views of various the product was withdrawn from the market in september 1997. the products liability statute of repose provides as follows: (d) the protection of justified expectations, 719 f.2d 134 (6th cir. 1983); hayes v. gen. motors corp., no. 95-5713; 94 f.3d 644, preserved her pph claim�is also unpersuasive. as noted above, the settlement the relevant periods and that wyeth is incorporated in delaware with its principal place montgomery in june 1997. dr. lane offered no evidence relating to the pondimin question was enacted after lengthy debates and full consideration by the general that its consent form was inadequate because it was based on wyeth's 1996 labeling, action settlement agreement ("settlement agreement"), which included the brown restatement (second) of conflict of laws to choice-of-law questions. hataway v. member of the class, the action was brought within the tsor, and the court expressly ahp released parties shall not assert a defense based on "splitting" of in georgia. she further claims that wyeth did not adequately inform these doctors about be remanded by the panel at or before the conclusion of such pretrial proceedings to the apply. plaintiff argues tennessee has an interest in compensating its hypertension ("pph") suffered by a diet drug recipient." under an agreed-upon definition, in exchange for which wyeth agreed not to assert a of repose (tsor). in addition to her arguments that wyeth had waived the tsor 1 no. 08-5701 montgomery v. wyeth, et al. page 17 years from the date of the first sale for use or consumption of the personal property claims'"); in re diet drugs, mdl 1203, no. 04-23744, 2006 wl 1050289, at *1 (e.d. _________________ labeling in effect when montgomery was prescribed pondimin in 1997. dr. lane's third amended complaint in this action"). however, the brown class complaint before the tsor would have barred her claim. she further claims that the class included elsewhere, for those class members exercising certain opt-out rights and asserting emergency and medical personnel responded to the accident and injured parties were pleading standard for a statute of repose defense. rule 8(b)(1) provides generally that (g) ease in the determination and application of the law to be applied. resident's claim for retaliatory discharge from his job in mississippi for filing a worker's incorporation and place of business of the parties, and (4) the place where the court held, spence controls the result in this case. montgomery appeals. understanding of the principal terms of the settlement in a memorandum of (quoting chase sec. corp. v. donaldson, 325 u.s. 304, 314 (1945)). 1973) (holding that a mdl transferee court has authority to hear motions for summary while montgomery complained below that wyeth "inexplicably failed" to make contrary to montgomery's assertion, the tsor does not require that the state. but this argument fails. tennessee's interest is not in notice she received. montgomery argues that the class notice led pph plaintiffs to pregnant, and was diagnosed with an incompetent cervix there). ii. analysis agreement expressly excludes claims for pph. thus, the settlement agreement did not been brought within one year of the expiration date of the product. the district court this reason, wyeth should have moved for summary judgment during the pretrial statute actually reduced the cost of product liability insurance was lacking, but noting before: suhrheinrich, gilman, and white, circuit judges. while it precluded wyeth from raising "statute of limitations or similar" defenses, or and treated for her injury. wyeth also conducted business in tennessee, where she opted out by the march 2000 deadline and brought suit after her diagnosis in 2005, her claim would there were no expiration dates on the productdispensed to her. defendants acknowledge motion is based on a statute unique to tennessee, the primacy of the interpretation and latency periods are not entitled to recover for harms done to them. diet drugs, pto 1415, 2000 wl 1222042, at *72, � 11. pto 2383, entered on february - 28-103. the straightforward reading of � 29-28-103 requires that an action for the injury she also asserts that tennessee has no interest in a claim that is barred by tennessee fenfluramine is an appetite suppressant that affects blood levels of the neurotransmitter, dismiss this action. she argues that the tsor was satisfied because she made a claim we agree with the district court that tennessee has the most significant relationship to prescribing doctors reviewed wyeth's inadequate warnings, relied on any other 1994, the lederle division of american cyanamid company had the right, together in the class notice, is if the agreement is interpreted to bar wyeth's assertion of the conley v. gibson, 355 u.s. 41, 47 (1957) (stating that a plaintiff must simply "give the also noted, because defendants' answer asserted the statute of repose, we need not decide whether tenn. pharmaceuticals, inc., fka wyeth-ayerst in re diet drugs, mdl 1203 pto 2623, 2002 u.s. dist. lexis 20323, which did not highlight the risks for vhd and pph. she also points out that the 1996 product was not purchased in tennessee. pondimin was sold for a short if "the pleadings, the discovery and disclosure materials on file, and any affidavits show of clinical pharmacology and therapy, in which dr. weintraub advocated the use of treatment and prescriptions of pondimin, which was not available in tennessee at that repackaged by the distributor who bought them from wyeth and sold them to expiration of the anticipated life of the product, whichever is the shorter, except in the (j.p.m.l. 2008) (vacating a transfer order that would consolidate the case as part of a in the event that a class member initiates a claim based on pph, the judgment, alleging that montgomery's claim was barred by the tsor because it had not court determined that the conduct causing the injury occurred in georgia because respect to all claims, and has jurisdiction over all parties to this action, including all members of the is her place of domicile and residence, tennessee is where she intended to and did use that there is no genuine issue as to any material fact and that the movant is entitled to case of injury to minors whose action must be brought within a period of one (1) year corp. v. wheeling- pittsburgh steel corp., 328 f. supp. 365, 370-71 (d. del. 1971) pto 3085, 2003 wl 22669132, at *2, 2003 u.s. dist. lexis 20221 at lastly, i do not agree with the majority's conclusion that "montgomery's january 14, 2008, wyeth moved for summary judgment based on the tennessee statute 1973, the united states food and drug administration ("fda") approved a.h. the product was first purchased for use or consumption, or within one (1) year after the dismissed without prejudice before it was refiled under the tennessee savings statute, (tenn. ct. app. feb. 9, 1993) (holding that mississippi law applied to a mississippi no. 08-5701 montgomery v. wyeth, et al. page 23 state but not another. see restatement (second) of conflict of laws � 145, cmt. c ("a pondimin became available in tennessee as of march 26, 1997. wyeth of tennessee law, the latter requires an interpretation of the settlement agreement in 99-20593, 2000 wl 1222042, at *71-72. thus, unless the settlement agreement itself no. 08-5701 montgomery v. wyeth, et al. page 11 we are not in a position to alter this policy decision of the state legislature. judgments, settlements and the expense of defending such suits have no. 08-5701 montgomery v. wyeth, et al. page 7 of injury is not obvious when the injury is a latent disease, like pph, and that there is no simply because the product was sold there. action and each of the parties . . . to administer, supervise, interpret and enforce the affirmance. the district court held that montgomery's claim was barred by no. 08-5701 montgomery v. wyeth, et al. page 21 defendant fair notice of what the plaintiff's claim is and the grounds upon which it furthermore, the pph definition was articulated by leading medical rests"). it also states that a party may state as many defenses as it has, regardless of counsel tenn. code ann. � 29-28-102 (west 2008). statements made by wyeth, or were uninformed about the risks of pondimin when they tennessee. preserved montgomery's claim, it is barred because it was not re-filed within the tsor. for the eastern district of tennessee of chattanooga. asserted was not pph. she did not file that claim until 2005. corporation, fka wyeth-ayerst action shall be commenced pursuant to this subsection with respect to an injury after ten no. 08-5701 montgomery v. wyeth, et al. page 13 liability claim more than one year after that date, despite the fact that he filed his action mdl no. 1203 in the eastern district of pennsylvania for consolidated proceedings on appeal, montgomery claims that all the key events occurred in georgia and theoccurrence because tennessee is where montgomerysustainedher injury,tennessee of georgia. montgomery alleges that her prescribing physicians received inadequate 911. in short, montgomery never filed a timely claim for pph and no savings statute is the parties had already relied exclusively on tennessee law. id. district court's continuing and exclusive jurisdiction over the action, including understanding ("mou"). id. at *5. on october 12, 1999, a class action styled brown a. choice of law popularly became known as "fen-phen." . . . and she signed a consent form at the clinic stating that such consent was necessary tennessee, her place of injury is tennessee. the court reasoned that this conclusion was montgomery bought pondimin from a clinic in georgia. the court noted that the drug _________________ date was printed on a label affixed to each stock bottle. wyeth did not sell pondimin 20 however, montgomery offers no proof that either dr. shure or dr. hargett fenfluramine in the united states. in 1989, ahp acquired a.h. robins. following the d. waiver therein, which, in montgomery's case, was after the tsor ran. therefore, the only way rule which exempts the actor from liability for harmful conduct is entitled to the same wl 1222042, at *71 (stating that "[t]he court hereby dismisses, with prejudice . . . the