Nelson v. INDEVUS PHARMACEUTICALS, INC.

This lawsuit arises from plaintiff and appellant Paula Nelson’s use of the prescription diet drug dexfenfluramine (sold as Redux), which was promoted and marketed by defendant and respondent Indevus Pharmaceuticals, Inc. Redux and a similar drug, Pondimin (both commonly known as “Fen-phen”) were withdrawn from the market in September of 1997, on reports that they could cause valvular heart disease.

Nelson took Redux for about a month, starting in January of 1997, after she had taken other Fen-phen drugs for about nine months. She stopped taking Redux because she was not losing weight. She first contacted an attorney in June of 2002, after she saw the attorney’s television advertisement, and first had an echocardiogram (the means by which valvular heart disease is diagnosed) in September of that year. In July 2003, as the result of the echocardiogram, Nelson filed this personal injury lawsuit.

Indevus moved for summary judgment on the ground that the complaint was barred by the statute of limitations, based in part on a theory of (to use its phrase) “constructive suspicion.” Indevus contended that under California’s discovery rule, the statute of limitations began to ran…