Statute of Limitations Substantive not Procedural for Foreign Plaintiff Suing in New Jersey
In an opinion released on June 14, 2013, a panel of New Jersey’s Appellate Division reaffirmed that the question of which state’s statute of limitations should be applied is a substantive, not a procedural, question.
The issue arose in one of the many Zometa cases pending in Middlesex County. In this particular case, the plaintiff, a resident of Virginia, received Zometa in 2002, was diagnosed with osteonecrosis of the jaw in December 2003, and filed suit against Novartis Pharmaceuticals Corporation, the manufacturer of Zometa, in March 2006.
Both Virginia and New Jersey have a two-year statute of limitations for personal injury claims. However, while New Jersey applies the discovery rule , Virginia does not. Thus, because the plaintiff filed his lawsuit in New Jersey more than two years after his injury was diagnosed, the parties agreed that his claim would be time-barred under Virginia’s staute of limitations, but not time-barred under New Jersey’s.
Previously, the plaintiff and Novartis entered into a stipulation that, for purposes of this particular case, New Jersey law should govern all procedural or evidentiary issues and Virginia law should govern all substantive issues (including the plaintiff’s claims for failure to warn, defective design, breach of warranty, negligence, and consumer fraud).
Novartis moved for summary judgment, arguing that under long-standing New Jersey choice-of-law rules, the Virginia statute of limitations should apply to the claims brought in New Jersey by this Virginia plaintiff. The plaintiff argued that, under the parties’ stipulation, the question of which state’s statute of limitations should be applied was a procedural one governed by New Jersey law.
The motion judge found in favor of Novartis, and dismissed the plaintiff’s claim. On appeal, the Appellate Division, affirmed, finding that the parties’ agreement to apply New Jersey procedural law “did not upend this forty-year history of New Jersey’s application of the statute of limitations of the state where the cause of action arises, absent a substantial New Jersey interest in the matter.”
With the number of foreign plaintiffs who continue to come to New Jersey to file their lawsuits, particularly as part of the many consolidated pharmaceutical or medical device product liability litigations pending under New Jersey’s multicounty litigation program in Atlantic, Bergen, and Middlesex Counties, this decision may serve as an added deterrent against those forum-shopping plaintiffs who, unable to sue in their home states, come to New Jersey in the hopes of pursuing an otherwise time-barred claim.