On July 20, 2009, Angela Kester was prescribed Levaquin, an antibiotic in the fluoroquinolone family of drugs. After experiencing severe side effects, she stopped taking the medication. Her side effects persisted, however, and she has received treatment ever since for a variety of health conditions, including peripheral neuropathy.
On August 14, 2015, Kester brought her first of three suits against Janssen Pharmaceuticals (“Janssen”) in state court. But on June 12, 2018, after the suit was transferred to the Fluoroquinolones Products Liability Litigation in the United States District Court for the District of Minnesota (the Multidistrict Litigation, or “MDL”), Kester voluntarily dismissed the suit.
On February 5, 2018, Kester filed a second suit against Janssen, this time in the United States District Court for the Eastern District of Oklahoma. This suit was also transferred to the MDL, and on April 8, 2019, Kester again dismissed the suit voluntarily.
Kester filed a third lawsuit on August 17, 2020, alleging that Janssen’s failure to include adequate information in Levaquin labels concerning its side effects—specifically, the development of peripheral neuropathy—precluded medical professionals from advising her on the dangers of taking the drug. Janssen filed a motion to dismiss for failure to state a claim, arguing, among other things, that Oklahoma’s two-year statute of limitations barred Kester’s claims. The district court granted Janssen’s motion without holding a hearing, finding that Kester’s claims were time-barred and dismissing them with prejudice. Kester appealed.
Federal Appellate Court Opinion
Oklahoma Medical Malpractice Statute of Limitations
Oklahoma imposes a two-year statute of limitations on negligence and products liability claims. Okla. Stat. tit. 12, § 95(A). Under Oklahoma’s discovery rule, the statutory period does not begin until the plaintiff knows, or a reasonably prudent person could have known, that they have an injury potentially attributable to the defendant’s actions.
The United State Court of Appeals for the Tenth Circuit (“Federal Appellate Court”) stated in its July 21, 2023 Order and Judgment: “Kester argues that the discovery rule tolled the statute until August 23, 2019, when she was formally diagnosed with peripheral neuropathy. This assertion interprets the rule too broadly. As Kester herself has stated, she has been treated for severe peripheral neuropathy, among other conditions, since July 2009. Indeed, these conditions formed the basis for two previous suits filed a year or more in advance of her diagnosis. Furthermore, the record shows that Levaquin’s label warned about peripheral neuropathy as early as 2008, and in 2013, the Food and Drug Administration issued a public report warning that fluoroquinolones could cause peripheral neuropathy, among other side effects. Thus, “the connection between the product and the injury was discoverable” well before Kester’s 2019 diagnosis, indicating that she had “sufficient information . . . to start the running of the statute of limitations” more than two years before she filed the present suit … (Oklahoma’s discovery rule did not toll the statute where patient understood her symptoms were connected to the medication she was taking). Therefore, the discovery rule does not save Kester’s claims.”
“Nor, as the district court noted, does Oklahoma’s savings clause, which states that a new action is not barred if it is commenced within one year of a timely filed action that is voluntarily dismissed. Okla. Stat. tit. 12, § 100. Kester filed the present suit sixteen months after the second voluntary dismissal; thus, even if her first two suits were timely, her current suit does not fall within the savings clause.”
Source Kester v. Janssen Pharmaceuticals, Inc., No. 22-7026.
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