[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEP 09, 2011
No. 10-13197
JOHN LEY
________________________ CLERK
D.C. Docket No. 1:08-md-01928-DMM
ISMAEL RODRIGUEZ, et al.,
lllllllllllllllllll Plaintiffs,
l
NAGUIB BECHARA,
Individually and as Next Friend of
Justin Bechara, a Minor,
NABILA SAAD,
individually and as Next Friend of
Justin Bechara, a minor,
llllllllllllllllllll lPlaintiffs - Appellants,
versus
BAYER CORPORATION,
BAYER HEALTHCARE,
BAYER AG,
lllllllllllllllllllll Defendants - Appellees,
DOES THREE THROUGH ONE HUNDRED,
and each of them,
RUTH LEDOUX, et al.,
lllllllllllllllllllll Defendants.
________________________
No. 10-14193
________________________
D.C. Docket No. 1:08-md-01928-DMM
NAGUIB BECHARA,
Individually and as next Friend
of Justin Bechara, a Minor,
NABILA SAAD,
Individually and as Next Friend
of Justin Becharra, a Minor,
llllllllllllllllllllllllllllllllllllllll Plaintiffs - Appellants,
GEORGE DODSON,
as Executor of the Estate of Betty Dodson,
deceased,
lllllllllllllllllllllllllllllllllllllll lPlaintiff,
versus
BAYER CORPORATION,
BAYER HEALTHCARE,
BAYER AG,
BAYER SCHERING PHARMA AG,
BAYER PHARMACEUTICALS CORPORATION,
a foreign corporation, et al.,
llllllllllllllllllllllllllllllllllllllll Defendants - Appellees,
DOES THREE THROUGH ONE HUNDRED,
and each of them, et al.,
lllllllllllllllllllllllllllllllllllllllll Defendants.
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________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(September 9, 2011)
Before TJOFLAT and MARTIN, Circuit Judges, and DAWSON,* District Judge.
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
*
Honorable Robert T. Dawson, United States District Judge for the Western District of
Arkansas, sitting by designation.
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On October 15, 2010, we granted appellants unopposed motion to consolidate these
appeals.
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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., 110 P.3d 914, 920 (Cal. 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 Bechara further investigated
other potential causes for his kidney damage at this time, he would have
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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
(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 appellees.
AFFIRMED
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