Bechara v. Bayer Corporation

440 F. App'x 813

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 9, 2011
• Docket: 10-13197, 10-14193
• Status: Unpublished

Opinion

PER CURIAM:

Appellants Naguib Bechara and Nabila Saad, husband and wife respectively, appeal the district court’s order granting summary judgment in favor of defendants, Bayer Corporation and certain related entities (the “Bayer Entities”), and subsequent order imposing costs against the appellants. 1 Bechara seeks to litigate certain California products liability claims against the Bayer Entities. Specifically, he claims that Bayer’s product “Trasylol,” which he received during heart surgery in 2005, caused him to suffer significant kidney damage. Saad claims, in turn, that she suffered a loss of consortium stemming from Bechara’s underlying injury. The district court dismissed Bechara’s claims as barred by California’s two-year statute of limitations, and as a result dismissed Saad’s derivative claims as lacking a primary anchor claim.

After a thorough review of the record and parties’ briefs, and with the benefit of oral argument, we now affirm. California law provides a two-year statute of limitations for products liability claims, see Cal. Civ.Proc.Code § 335.1, but under the state’s “ ‘discovery rule’, ... accrual of a cause of action [is delayed] until the plaintiff discovers, or has reason to discover, the cause of action.” Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.4th 797, 27 Cal.Rptr.3d 661, 110 P.3d 914, 920 (2005). However, “in order to employ the discovery rule to delay accrual of a cause of action, a potential plaintiff who suspects that an injury has been wrongfully caused must conduct a reasonable investigation of all potential causes of that injury. If such an investigation would have disclosed a factual basis for a cause of action, the statute of limitations begins to run on that cause of action when the investigation would have brought such information to light.” Id. at 921 (emphasis added).

Here, Bechara almost immediately suspected that his “injury had been wrongfully caused,” and in November 2005 brought a medical malpractice suit against the doctors who performed his surgery. Had Be-chara further investigated other potential causes for his kidney damage at this time, he would have discovered that (1) his medical records revealed he received Trasylol, (2) Trasylol’s label warned of the very type of injury Bechara suffered, and (3) the scholarly literature contained numerous reports observing the link between kidney failure and Trasylol. Yet, despite this evidence, appellants did not commence this suit until July 2008, which is therefore untimely even under the “discovery rule.” The district court thus correctly concluded that Bechara’s claim is barred under the two-year statute of limitations, and therefore was also correct to dismiss Saad’s derivative claims. See, e.g., Snyder v. Michael’s Stores, Inc., 16 Cal.4th 991, 999, 68 Cal.Rptr.2d 476, 945 P.2d 781 (1997) (loss of consortium claim is “unquestionably dependent, legally as well as causally”).

For these reasons, we affirm the district court’s grant of summary judgment and its award of prevailing party costs to appel-lees.

AFFIRMED.

1 . On October 15, 2010, we granted appellants unopposed motion to consolidate these appeals.