False Name Results in Dismissal of Complaint

Shakespeare may argue otherwise, but a person’s name carries great legal weight, and the prosecution of a civil claim under a false name may result in the dismissal of the claim with prejudice. In Santiago v. E.W. Bliss Co., — N.E.2d —, Nos. 1-10-0796, 1-10-0780, 2010 WL 5292919 (Ill. Ct. App. Dec. 21, 2010) [PDF], the Appellate Court of Illinois decided a certified question and set forth the facts of the case as follows:

On May 12, 2006, plaintiff was injured while working with a punch press. Components of the machine were manufactured by defendants, and on May 9, 2008, plaintiff filed a product-liability complaint against defendants in the circuit court of Cook County. The initial complaint identified plaintiff as “Juan Ortiz,” and it did not indicate whether he had ever been known by any other name. Plaintiff filed his first amended complaint on November 4, 2008, naming additional defendants that had been identified during discovery. The first amended complaint also named “Juan Ortiz” as the sole plaintiff.

During written discovery, plaintiff received at least three sets of interrogatories from various defendants. Among other information, each set of interrogatories asked plaintiff to disclose personal identification information, including his name, work history, and social security number. Plaintiff answered the interrogatories on February 25, 2009, identifying himself as “Juan Ortiz.” As required by section 1-109 of the Code of Civil Procedure . . . plaintiff signed and verified each interrogatory with the signature “Juan Ortiz.”

Defendants deposed plaintiff on May 19, 2009. When defendants asked plaintiff to state his full name, however, plaintiff responded that his name was Rogasciano Santiago, not Juan Ortiz. This was the first time during the course of litigation that plaintiff had used this name, and defendants had not previously been aware that plaintiff’s true name was not Juan Ortiz. The record does not disclose whether plaintiff’s attorney was aware of plaintiff’s true name.

Mr. Santiago/Ortiz moved for leave to amend the complaint to substitute his real name. The circuit court granted leave, after the statute of limitations had run on the products claim, and then the court asked for assistance in determining the effect of the amendment on the substantive claim given the facts and the defendants’ motion to dismiss the amended complaint. First, the appellate court ruled that dismissal of the complaint with prejudice is not a mandatory sanction, but it may be an appropriate sanction given the facts of the case. Second, the appellate court held that an amendment to substitute the real name of the plaintiff made after the statute of limitations has run bars the claim because the amended complaint cannot relate back to the original filing. The appellate court then instructed the circuit court to take actions consistent with its opinion.

There are several points for discussion, probably worthy of multiple posts, but here are just a few. First, this may create a certain conundrum for the plaintiffs’ bar. It’s unclear whether there was any willful blindness here, but when a lawyer decides to take on a case of a person who may or may not be properly documented, discovery certainly includes some risks that may have ramifications outside of the lawsuit. I am sure, though, that this would have been a great deposition to take or attend. Not often does the deposition go south right after “Can you please state your full name for the record?”

Next, this case shows that defense counsel should always ask the routine, mundane questions because the answers may let you out of a lawsuit. In addition, the timing of the filing of the complaint and subsequent discovery can certainly impact the merits of the case. Finally, the court shows that it is not going to allow the judicial system to be tampered with. There is a certain calculus in play in this case. Perhaps this was a case where the plaintiff’s goal was to settle prior to deposition. In any event, although a person who may or may not be properly documented has access to the court system, extrajudicial issues certainly play a part in the decision to bring what may otherwise be a meritorious case.

Judgment in Favor of Zyprexa Manufacturer Upheld in at least Two Matters

On October 4, 2010, Second Circuit Judges, John M. Walker, Jr., Jose A. Cabranes, and Chester J. Straub, upheld the decisions of the Eastern District Court of New York in two lawsuits filed against Eli Lilly & Company, manufacturer of Zyprexa. Belcher v. Eli Lilly & Co., No. 09-5004-CV, 2010 WL 3853003 (2d Cir. Oct. 4, 2010) and Gove v. Eli Lilly & Co., No. 10-216-CV, 2010 WL 3852840 (2d Cir. Oct. 4, 2010). Lawsuits against Eli Lilly & Company (“Eli Lilly”) began to be filed around the country by plaintiffs alleging that its anti-psychotic medication, Zyprexa, caused them to suffer from diabetes. Plaintiffs asserted that if Eli Lilly had properly warned of the drug’s dangers, they would have never been prescribed the drug and not developed diabetes. These similar lawsuits around the country were transferred to the Eastern District of New York pursuant to an order of the Judicial Panel on Multidistrict Litigation. The Belcher and Gove matters discussed here were both decided in favor of Eli Lilly on motions for summary judgment. Thereafter, these appeals were filed.

The Belcher matter was decided in favor of Eli Lilly solely on the ground that her claim was barred by the statute of limitations. Applying California’s discovery rule and its two year statute of limitations for product liability and personal injury actions, the Second Circuit upheld the decision of the Eastern District Court of New York. California was the applicable law since the matter was filed in California and the events giving rise the action occurred there. The Second Circuit found that the statute of limitations began to run in October 2001 when a physician who knew the association between the drug and increased weight gain and blood glucose levels prescribed Zyprexa. Her claim was barred as it was filed in February 2006. The decision of the District Court dismissing the action was upheld.

The Gove matter was also decided in favor of Eli Lilly on the ground that her claim was barred the by the statute of limitations as well as on the ground that Gove had failed to establish that Eli Lilly’s failure to warn was the proximate cause of her injuries. The Second Circuit upheld the District Court’s decision merely on the ground that Gove failed to establish proximate cause. The applicable law in this matter was Arizona’s substantive law because this matter was filed in Arizona and the events giving rise the action occurred there. The Second Circuit found that Arizona recognized the learned intermediary doctrine but applied the “heeding presumption” by shifting the burden of production to the manufacturer. If the manufacturer meets this burden, the burden shifts to plaintiff to show proximate cause. Applying these principles, the Second Circuit found Eli Lilly’s presumption satisfied by evidence that Gove’s nurse practitioner that prescribed the drug testified that an alternative warning would not have affected her prescribing habits. Further, because Gove’s practitioners were aware of the risks and would not have changed their treatment decisions, the Second Circuit found that Gove failed to establish proximate cause. The Court upheld the decision of the District Court.

Hey, Potential Tortfeasors: Do Business in Kentucky

Oh, Kentucky! I wax maudlin as the spring approaches, when the bluegrass begins to grow, and I am reminded of my love of fried chicken, mint juleps, and Billy Ray Cyrus. How wonderful art thou, great state of the Gray Squirrel and the greatest two minutes in sports! And even with all of these enticements to share a state of domicile with Rick Pitino, there is but one ultimate reason to make the move. Although Greenville is a fine place to live, if I were ever to maim or otherwise injure someone, I would hope to do so in Kentucky. I am surprised that the Kentucky Chamber of Commerce does not openly espouse its one year statute of limitations [PDF] on personal injury cases as a benefit of living, maiming, of doing business there. Unfortunately for Johnny Childress, he lived in Kentucky at the time of his injury, and his claim was dismissed because of it.

For reasons not clear in Childress v. Interstate Battery Systems of America, Inc., 2010 WL 600023, No. 1:09CV-54-M (W.D. Ky. Feb. 18, 2010), Mr. Childress did not bring suit within one year of his accident. On November 26, 2007, Mr. Childress drove home, exited his car, and “noticed the distinct odor of battery fumes emanating from his vehicle.” Id. Mr. Childress disconnected the battery, took the battery into his garage, and placed it on a workbench, where it exploded and sent shards of plastic and acid into Mr. Childress’ face and eyes. Childress, inexplicably, waited too late to file his products liability action, and, therefore, he had to assert a theory of recovery that would allow him to maintain his claim. He argued that his accident sounded in the Motor Vehicle Reparations Act, which allowed a two-year period to bring an action.

The two-year limitations period extends to those who were victims of a motor vehicle accident and whose injuries arose out of the use of a motor vehicle. Id. Because the blog adheres to the strictest of legal writing axioms, you already know what the court decided. Childress was not in his vehicle at the time of the explosion, and “it was the battery, not his vehicle, that was the sole cause of his injuries.” Id. Therefore, Childress was time-barred.

Maybe Childress had some bad facts in his claim that would have precluded a finding against the battery distributor, and he was trying to bring in his auto insurer. It’s unclear. But unfortunately for Mr. Childress, who at the very least had a real injury, and perhaps a valid claim, he can’t recover. Manufacturers take note and take advantage of Citizens United: Elect officials who support a one-year statute of limitations. Then I won’t have to move to Kentucky.