Bristol-Myers Fends Off Suit Over Toxic Deaths
By ROSE BOUBOUSHIAN
(CN) – Bristol-Myers Squibb need not face claims related to 24 New Jersey residents who died after alleged exposure to toxic substances from the pharmaceutical giant, a federal judge ruled.
Around May 2008, more than 100 complaints were filed in state court against Bristol-Myers Squibb Co. over the deaths of people who lived near its New Brunswick, N.J., plant, which allegedly emits toxic chemicals.
After parallel mass tort litigation began in the Atlantic County Superior Court later that year, Bristol-Myers Squibb removed the cases to federal court.
With Cynthia Fuqua leading 23 other estate administrators seeking pecuniary losses, Bristol-Myers Squibb fought the claims under two-year statute of limitations of the New Jersey Wrongful Death Act.
Initially, the state court had given the heirs a chance to show that they may qualify for tolling if “the complainant has been induced or tricked by his [or her] adversary’s misconduct” into missing the filing deadline.
U.S. District Judge Freda Wolfson was not as generous and dismissed the wrongful death claims on Feb. 15, saying the discovery rule cannot toll the statute of limitations for wrongful death claims.
“The decedents’ deaths provided these plaintiffs the notice to investigate the cause of death through the means available at the time of death,” Wolfson wrote. “Thus, there is no basis to extend the application of the discovery rule to permit the filing of wrongful death actions beyond the specified statutory period.”
Heirs of the decedents cannot calims that Bristol-Myers Squibb prevented the diligent pursuit of the case by fraudulently concealing the toxic contamination.
“While plaintiffs allege that they were unable to obtain access to the concealed information regarding the contamination, they fail to aver what actions they took to discover that information and, relatedly, the complaints are also devoid of any facts relating to the exercise of due diligence on the part of plaintiffs to discover the existence of fraud notwithstanding defendant’s alleged wrongdoing,” Wolfson wrote. “More particularly, plaintiffs neglect to assert any facts regarding their due diligence in ascertaining the cause of death of the respective decedents as it relates to defendant’s concealment of contamination. Importantly, those allegations should be specific to each plaintiff’s conduct, and not be pled in a generalized manner. In short, these glaring deficiencies preclude the court from applying an equitable tolling doctrine that is generally used sparingly.”
Since 2008, the plaintiffs have failed to uncover sufficient evidence to warrant equitable tolling, according to the ruling.
“Plaintiffs in these federal actions, having had the benefit of the state court litigation – as they are represented by the same counsel – have filed complaints here that are substantially similar to those brought in the state court four years ago,” Wolfson wrote. “No more specifics are included in these complaints to buttress plaintiffs’ claims of fraudulent concealment. Clearly, these pleadings do not meet the requirements of a properly pled concealment defense. Therefore, there is no basis for this court to apply the doctrine to toll plaintiffs’ untimely wrongful death claims. As a result, these claims are dismissed without prejudice.”
The plaintiffs may still amend their claims to argue for application of the equitable tolling doctrine.
Bristol-Myers Squibb’s sales totaled $17.6 billion in 2012, according to its website.