In re: HEPARIN PRODUCTS LIABILITY LITIGATION. MUSTAPHA NYA v. Baxter International, Inc.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0694n.06
Case No. 15-3123
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
In re: HEPARIN PRODUCTS LIABILITY LITIGATION.
MUSTAPHA NYA and KENDRA DAVIS, as
Joint Special Administrators of the Estate of
Katherine Nya, Deceased,
Plaintiffs-Appellants,
v.
BAXTER INTERNATIONAL, INC.;
BAXTER HEALTHCARE CORPORATION;
SCIENTIFIC PROTEIN LABORATORIES,
LLC; B. BRAUN MEDICAL, INC.;
AMERICAN CAPITAL, LTD., f/k/a
American Capital Strategies Ltd.,
Defendants-Appellees.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF
OHIO
BEFORE: BATCHELDER, ROGERS, and COOK, Circuit Judges.
COOK, Circuit Judge. This multi-district products liability litigation arises out of the
manufacture and sale of heparin, a clinical drug used to prevent blood clotting. Plaintiffs allege
that contaminated heparin manufactured by Defendants was administered to Katherine Nya
during open-heart surgery, causing serious injury and death. The district court dismissed the

-- 1 of 6 --

Case No. 15-3123
Nya v. Baxter
- 2 -
complaint for Plaintiffs’ failure to obtain leave of court under Arizona’s savings statute before
filing their untimely claims. We AFFIRM.
I.
Baxter Healthcare Corporation is an international healthcare company that manufactures
heparin, a blood thinner used in cardiac and other medical procedures. See In re Heparin Prods.
Liab. Litig., 803 F. Supp. 2d 712, 720–21 (N.D. Ohio 2011). Mustapha Nya and Kendra Davis,
as joint administrators of Katherine Nya’s estate (Plaintiffs), filed suit in Illinois state court in
2009 against Baxter International, Inc., Baxter Healthcare Corporation, B. Braun Medical,
Scientific Protein Laboratorie, LLC, and American Capital, Ltd. (Defendants). The complaint
alleged that on three separate occasions Ms. Nya was administered contaminated heparin
manufactured by Defendants.
In August 2012, the Illinois state court granted Plaintiffs’ counsel leave to withdraw as
counsel of record. Defendants moved for summary judgment in April 2013, and Plaintiffs
voluntarily dismissed their complaint on November 19, 2013.
Purportedly relying on Arizona’s savings statute, Plaintiffs refiled their complaint in
Arizona state court on April 8, 2014, after the statute of limitations for their claims had expired.
See Ariz. Rev. Stat. § 12-542. Defendants removed the case to the District of Arizona, and the
United States Judicial Panel on Multidistrict Litigation transferred the case to the Northern
District of Ohio.
Defendants again moved for summary judgment alleging (1) that Plaintiffs had not shown
that Ms. Nya’s injuries were caused by contaminated heparin, let alone contaminated heparin
manufactured by Defendants, and (2) that the complaint was untimely because Plaintiffs, having
refiled their complaint without leave of court, failed to properly invoke the savings statute.

-- 2 of 6 --

Case No. 15-3123
Nya v. Baxter
- 3 -
The district court granted summary judgment on both grounds. It reasoned that Plaintiffs “failed
to comply with procedural requirements under [Arizona] law for invoking the savings statute,”
and also agreed that Plaintiffs failed to show that Ms. Nya “either received contaminated heparin
. . . or experienced any of the reactions a plaintiff’s medical records must show she experienced
within sixty minutes of receiving heparin.”
Plaintiffs then filed a Rule 59(e) motion to alter or amend the judgment and sought leave
to refile under the savings statute. As grounds for altering the judgment, Plaintiffs offered
evidence obtained from former counsel purporting to show that Ms. Nya was administered
Defendants’ heparin and exhibited symptoms within sixty minutes. The district court denied the
motion to amend because the evidence was available prior to summary judgment and, in any
event, did not support Plaintiffs’ case. The court’s decision bypassed Plaintiffs’ leave-to-refile
request.
Plaintiffs now appeal the grant of summary judgment and denial of their Rule 59(e)
motion to alter or amend summary judgment and motion for leave to file under the savings
statute.
II.
Defendants press for abuse-of-discretion review and we indeed apply that deferential
standard when reviewing the equitable factors permitting refiling under Arizona’s savings
statute. Perry v. Cnty. of Maricopa, 808 P.2d 343, 345–46 (Ariz. Ct. App. 1991); Jepson v. New,
792 P.2d 728, 737 (Ariz. 1990). But here a legal judgment—the absence of the requisite leave of
court—drove the district court to grant summary judgment on statute-of-limitations grounds,
warranting fresh review and preempting any equitable consideration. See Campbell v. Grand

-- 3 of 6 --

Case No. 15-3123
Nya v. Baxter
- 4 -
Trunk W. R.R. Co., 238 F.3d 772, 775 (6th Cir. 2001); Panzica v. Corr. Corp. of Am., 559 F.
App’x 461, 463 (6th Cir. 2014).
III.
Plaintiffs concede untimeliness under Arizona’s statute of limitations and their failure to
obtain prior leave of court that would have “saved” the complaint. Ariz. Rev. Stat. § 12-542.
Yet Plaintiffs nevertheless argue that obtaining leave of court is not an absolute precondition to
refiling under Arizona law. They point to Arizona’s savings statute that provides for relief from
a statute-of-limitations bar in two situations, captured in two consecutive sentences.
The first-sentence exception provides that when the plaintiff’s prior action was
“terminated in any manner other than by abatement, voluntary dismissal, dismissal for lack of
prosecution or a final judgment on the merits,” the plaintiff may, as a matter of right, refile the
untimely complaint within six months. Ariz. Rev. Stat. § 12-504(A) (emphasis added).
By contrast, the second-sentence exception—applicable where the plaintiff’s prior action was
“terminated by abatement, voluntary dismissal by order of the court, or dismissal for lack of
prosecution”—allows the refiling of an untimely complaint only if the court, in its discretion,
permits refiling. Id. The time period for which the court may grant leave to refile “shall not
exceed six months from the date of termination.” Id.
We agree with the district court’s understanding of the Arizona savings statute as
requiring leave of court before refiling an untimely complaint. See Bertrand v. Indus. Dev.
Auth., No. Civ 89-1087, 1990 WL 264525, at *3 (D. Ariz. Sept. 13, 1990); Short v. Dewald,
244 P.3d 92, 98 (Ariz. Ct. App. 2010). In Bertrand the court observed that “[a] close reading of
the second [sentence] of § 12-504(A) contemplates that the party seeking to rely on the ‘savings
statute’ should request a period of time up to six months within which to file a new action . . . .”

-- 4 of 6 --

Case No. 15-3123
Nya v. Baxter
- 5 -
1990 WL 264525 at *3. The court went on to grant summary judgment to the defendants
because “[n]o such request was made in this case.” Id. Similarly, Short held that “[t]he second
sentence of § 12-504(A) provides that when certain procedural defects have occurred resulting in
dismissal, the plaintiff can refile only with leave to do so from the court.” 244 P.3d at 98.
Plaintiffs unpersuasively attempt to distinguish these cases and offer no contrary
authority to support their position. For example, Plaintiffs argue that Bertrand’s use of the word
“should” was precatory—that it was merely “suggesting the proper course of action,” rather than
imposing an absolute requirement. Bertrand itself contradicts that stance. Bertrand, 1990 WL
264525 at *3.
Plaintiffs also seek to distinguish Bertrand as decided on other grounds, specifically, that
the savings statute was inapplicable to two complaints filed by different parties. True enough,
but both groundsincluding the absence of a request to refileindependently supported the
court’s holding. Bertrand, 1990 WL 264525 at *3.
Likewise, Plaintiffs incorrectly analyze the Short case, positing that “voluntary dismissal”
is not a “certain procedural defect[]” for which the Short court would insist on leave to refile.
(Reply Br. at 8–9.) This is not so. The Short court used the words “procedural defects” in
paraphrasing the language of § 12-504(A); it was not stating that only some second-sentence
dismissals require leave. Short, 244 P.3d at 98. And though Plaintiffs press that Short “went out
of its way to specifically exclude voluntary dismissals” from this requirement, our reading of the
opinion reveals no such exclusion. The footnote Plaintiffs cite discusses the appealability of the
order, not whether voluntary dismissals require leave before refiling. Short, 244 P.3d at 97 n.3.
Other Arizona cases support our take on § 12-504(A) regarding the need for leave of
court before refiling. See, e.g., Schwartz v. Ariz. Primary Care Physicians, 964 P.2d 491, 495

-- 5 of 6 --

Case No. 15-3123
Nya v. Baxter
- 6 -
(Ariz. Ct. App. 1998). And the language of the statute itself explains that refiling is not
automatic: the district court “provide[s] for a period for commencement of a new action.” Ariz.
Rev. Stat. § 12-504(A). The district court properly granted summary judgment on the grounds
that the complaint was untimely and not saved by § 12-504(A).1
IV.
For these reasons, we AFFIRM the district court’s judgment.
1 Although the district court did not address Plaintiffs’ later request for leave to refile in
its ruling on the motion to alter or amend judgment, it could not have granted such a request,
given that any refiling would have “exceed[ed] six months from the date of [the prior]
termination.” Ariz. Rev. Stat. § 12-504(A). Plaintiffs voluntarily dismissed the Illinois case on
November 19, 2013. They moved for leave to refile on December 1, 2014, more than a year
later.

-- 6 of 6 --