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Those injured due to heparin use should be aware that every state has very intricate laws concerning statutes of limitation, statutes of repose, discovery rules and other limitation periods. It’s a very complicated process that’s often best left to the expertise of an attorney.

Complexities

According to Douglass Kreis, a Florida attorney whose firm protects the rights of consumers who are seriously injured due to defective drugs such as heparin, statutes of limitation (the maximum time period, after certain events, that legal proceedings based on those events may be initiated), statutes of repose (a broader category that cuts off certain legal rights if they are not acted on by a certain deadline), discovery rules (a pre-trial phase of litigation) and other limitation periods are only a part of this complex area of law. He explained:

To make matters more complicated, there is often an interaction between various states such as the resident state where the injured consumer resides and may have been hurt and the resident state of the manufacturer and/or where any distributors were involved in placing or transferring the heparin throughout the United States. That as a disclaimer, meaning there is no definitive rule as to how to calculate all statutes but rather it is a case by case, client by client process which we undertake.

Baxter

In the Baxter case, we would look at the date that notice was issued and it would be the accrual date of January 25th, 2009 – meaning this date represents the initial notice to the public. You would then count up from there keeping in mind that all potential state’s statutes which may have some relation to the facts of each case may be implicated and there are short statute of limitations with as little as 1 year to file a lawsuit – examples would be Louisiana; Kentucky; Tennessee and Puerto Rico.

The difficulties extend beyond this for an individual case i.e. beyond figuring out which state’s statute of limitation applies and whether that state has a tolling or extension provision – equitable or statutory – but factually figuring out when the person knew or should have known that they had a cause of action. You also have to figure out what needs to have been determined through due diligence – again, depending on which states’ statute of limitations applies. That is:

• Do we need to know the identity of the manufacturer of the product?
• Does all of that need to be known or just components of it?

Possible venues for litigation

Kreis told us that states vary in terms of how much of a burden they put on the consumer to know before the accrual starts. He explained:

If you look at Baxter’s filings with the IRS, its corporate headquarters are in Deerfield, Illinois. That is a very good place for us historically in terms of litigation because the law is generally fair and balanced in Illinois and that state has judges who more often than not apply the laws both procedural and substantive in a balanced fashion. So, again, the analysis might including recognizing that Illinois has a two-year statue of limitations and a good tolling statute based on when a reasonable person in a like position knew or should have known that there was a cause of action to pursue, which includes an identification of the source of the injury.”

Baxter also has a plant in New Jersey. The raw product is shipped in from China and it goes to a plant they have there where it’s further processed. So, New Jersey is another state in which lawsuits could be filed. New Jersey also has a two year statute of limitations. Wisconsin is the third possible venue. Some of the raw heparin actually goes through a company called Scientific Protein Laboratories out of Wisconsin, who is really the more direct defendant in terms of this distribution as they are a co-owner of the plant in China. Wisconsin generally has a three year limitations period.

All this said, Kreis told us that no reliance can be put on any uniform rule but rather an attorney must make case by case decisions on when a claim must be filed in court to protect the client. If you’ve been injured due to heparin use, contact an attorney to discuss your situation. The consultation is free and without obligation. To contact a qualified attorney whose practice focuses in this area of law, please click here.