June 1, 2008

The running of a knowable and definite statute of limitations on mass tort claims, such as those of prescription drug injury, is important not only for defendants but also for many plaintiffs who file timely claims, because it is common for companies not to offer a global settlement until the statute has run (lest it be overwhelmed by lawyers' recruitment of tardy participants). Jessica Davidson Miller and Geoffrey Wyatt, both of O'Melveny & Myers, write in the Federalist Society's Class Action Watch that the best rule is that which begins running the deadline from when plaintiffs should reasonably have learned of their injury. Unfortunately, some states are willing to toll the statute while a class action is pending, although class actions are very seldom certified in mass torts: "Savvy plaintiff lawyers are aware of the benefits of this approach to the doctrine, and have exploited it precisely to serve this purpose of extending limitations periods by filing class actions that in truth have no hope of certification." (link leads to PDF).