Alabama Supreme Court Affirms Dismissal Of Untimely Drug Claim

The Supreme Court of Alabama (“Alabama Supreme Court”), in its decision released on September 27, 2019, affirmed the trial court’s dismissal of the plaintiffs’ amended complaint that alleged that the plaintiff husband developed demyelinating polyneuropathy as a result of being administered Remicade, a prescription medication manufactured by JBI, because the lawsuit was filed too late.

The plaintiffs’ complaint against the pharmaceutical company asserted failure to warn, negligence, breach of warranty, fraud, and loss of consortium claims. The complaint was not signed but indicated that it had been prepared by the plaintiff wife, who is not only a named plaintiff, but also an attorney and active member of the Alabama State Bar. An attorney from California admitted pro hac vice in the case assisted with the preparation of the complaint.

The Alabama Supreme Court stated, “It is apparent from even a cursory review of the complaint that it was copied from a complaint filed in another action. The complaint included numerous factual and legal errors, including an assertion that [the plaintiff husband] was dead even though he is alive and claims invoking the laws of Indiana even though that state has no apparent connection to this litigation. Moreover, the complaint included a “verification” by an attorney who does not represent the [plaintiffs] and who is not admitted to practice law in Alabama, certifying, in accordance with Pennsylvania law, that the facts asserted in the complaint are true to the best of his knowledge. This verification was electronically signed in December 2013, approximately a year before [the plaintiff husband] suffered the injuries giving rise to this lawsuit. There is no indication that [the defendant pharmaceutical company] was ever served with the [plaintiffs’] October 2016 complaint.”

On February 14, 2017, the plaintiffs filed an amended complaint that was properly signed by the plaintiff wife and that omitted the extraneous verification made under Pennsylvania law. On February 16, 2017, a private process server delivered the complaint and accompanying summons to the defendant pharmaceutical company’s registered agent in Alabama.

The trial court struck the plaintiffs’ initial complaint because it was not signed as required by Rule 11(a) and because it contained substantial errors and misstatements of fact and law. The trial court later dismissed the failure-to-warn and negligence claims asserted by the plaintiffs in the subsequent amended complaint because that amended complaint was not filed until after the expiration of the two-year statute of limitations applicable to those claims.

The Alabama Supreme Court held: “Because the trial court acted within the discretion granted it by Rule 11(a) when it struck the [plaintiffs’] initial complaint and because the [plaintiffs] did not establish that the applicable statute of limitations should have been tolled by § 6-2-3, the trial court’s order dismissing the [plaintiffs’] claims as untimely was properly entered. That judgment is therefore affirmed.”

Source McKenzie v. Janssen Biotech, Inc., 1170787.

If you or a loved one suffered injuries (or worse) as a result of a bad drug/defective drug in Alabama or in another U.S. state, you should promptly seek the legal advice of an Alabama pharmaceutical claim lawyer, or a pharmaceutical claim lawyer in your state, who may investigate your drug claim for you and represent you in a claim against a pharmaceutical company, if appropriate.

Visit our website or call us toll-free in the United States at 800-295-3959 to find drug claim lawyers in your state who may assist you.

Turn to us when you don’t know where to turn.

This entry was posted on Tuesday, November 12th, 2019 at 5:24 am. Both comments and pings are currently closed.


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