IS IT TOO LATE TO FILE SUIT?

It has been asked more than once, "Is it too late to file suit if I only recently discovered I have EMS?" It depends.

"New" cases of EMS arise when a patient and/or his doctor determine that a person's symptoms which have been previously thought to be fibromyalgia, eosinophilic fascitis or something else may in fact be EMS. This is determined first by establishing that a person in fact consumed L-tryptophan produced by Showa Denko (SDK). While many believe there were pre-epidemic cases of EMS which were either given another diagnosis or no diagnosis at all because the term "eosinophilic myalgia syndrome" was not a part of the medical lexicon, some people are only now discovering that they have EMS.

This depends on a number of different factors, including most significantly the state in which the person resides or the state in which the L-tryptophan was consumed. Some states have very strict statute of limitation rules that prohibit a lawsuit even though a person may not have known that he had EMS or that his EMS was attributable to contaminated L-tryptophan for years after the epidemic of 1989. Some states have preemptive statutes or statutes of repose that put an upper limit (as little as three or as many as ten years) from the time in which a consumer last purchased, or took a harmful product, in order to file suit, even if the injury that results from that product does not manifest itself until many years later. Many states, however, have one form or another of the discovery rule which provides, in essence, that the running of the statute of limitations does not begin until that person knows or has reason to know the real nature and extent of the injury and its connection to the product.

It has certainly been argued that there were a number of pre-epidemic cases of EMS going back as far as 1983 shortly after SDK began selling L-tryptophan in the United States. It is also true that before 1989 doctors either were at a loss to explain these patient’s symptoms or diagnosed diseases with similar if not identical features. Years after the EMS epidemic occurred, some patients and/or their doctors have gone back to review the patient’s history and medical records and use of L-tryptophan products to conclude that the condition was in fact EMS.

It depends on the particular facts of your case and the law of the state in which you reside. The only way to know for sure is to talk to an attorney who can help you determine whether you still have a claim. One thing is certain, if you have any doubt, do not lose any more time in obtaining proper legal advice to determine your rights.

Re: Janet Vaught (EMS Statute)

Saddletx@aol.com

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