A federal judge has rejected an attempt by GlaxoSmithKline to throw out dozens of Avandia lawsuits, which the drug maker attempted to argue were filed after the statute of limitations expired.
U.S. District Judge Cynthia M. Rufe, who is presiding over the federal Avandia litigation, denied a motion to dismiss 60 lawsuits filed by former Avandia users who claim the diabetes drug caused them to suffer heart problems.
GlaxoSmithKline argued that the Avandia statute of limitations, which dictates the amount of time an injured party has to file their lawsuit, should have started as early as May 2007, when a study was released that linked Avandia to an increased risk of heart attacks and heart failure.
For purposes of deciding the motion, Judge Rufe applied Pennsylvania law, which generally requires a lawsuit for personal injury or wrongful death to be filed within two years from when the plaintiff sustained their injury. However, under the “discovery rule” in Pennsylvania, the statute of limitations for an Avandia lawsuit would not begin running until the plaintiff knew or reasonably should have known that their injury was caused by side effects of the medication.
In their complaints, the plaintiffs alleged that they did not know or have any reason to know about the connection between Avandia and heart problems until late summer 2010. They further alleged that they did not see any information about the Avandia heart risks until that time.
While GlaxoSmithKline argued that the media attention surrounding Avandia in 2007 should have put the plaintiffs on notice to investigate the cause of their injuries, Judge Rufe disagreed based on the available evidence in the record.
“There is certainly a point at which a reasonable person was on notice to investigate the possibility of a connection between an injury and use of Avandia, but the Court cannot, on the present record, determine that point to be May 21, 2007,” wrote Judge Rufe in an order issued September 7.
Although the first studies linking Avandia to heart risks were released in May 2007, many of the media articles published at that time indicated that the FDA was not recommending a recall for Avandia at that time.
In September 2010, the FDA finally did hold highly publicized advisory panel meetings to review the potential risks associated with Avandia. While the panel narrowly voted not to recommend that the FDA issue an Avandia recall, severe restrictions were placed on the use of Avandia following those meetings.
Many lawyers who are still reviewing potential claims have suggested that the Avandia statute of limitations would likely start running around the time of these FDA advisory panel meetings last year. Therefore, individuals with claims in states with statute of limitations that are greater than one year may still have additional time to pursue their claim through an Avandia lawyer if they did not know or have reason to know about the cause of their injury prior to September 2010.
Although GlaxoSmithKline agreed to Avandia settlements in many of cases last year, thousands of cases are still pending against the drug maker.