Knollenberg v. Wyeth, et al

Filing 48

MEMORANDUM OPINION AND ORDER. Signed by Honorable Robert T. Dawson on November 7, 2011. (rw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION

JANICE KNOLLENBERG

PLAINTIFF

v.

Civ. No. 2:05-CV-2044

WYETH d/b/a/ WYETH, INC. d/b/a WYETH
PHARMACEUTICALS and PFIZER, INC.,
Individually and as Successor-in-interest to
PHARMACIA & UPJOHN COMPANY and
THE UPJOHN COMPANY

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Before the Court are Defendants’ Motion for Summary Judgment
(Doc. 32) and Brief in Support (Doc. 33), Plaintiff’s Response in
Opposition (Doc. 41), and Defendants’ Response in Support (Doc.
45). For the reasons reflected below, Defendants’ Motion (Doc. 32)
is GRANTED.
I.

Background
Plaintiff contends that her use of the hormone replacement

therapy

(“HRT”)

drugs

Premarin

and

Provera,

manufactured

by

Defendants, caused her breast cancer and that Defendants failed to
adequately test the products, warn of the risks, and market the
products appropriately. Defendants deny that their products caused
Plaintiff’s breast cancer and contend that their products were
appropriately tested, labeled, and marked.
Plaintiff was a resident of California for nearly 60 years
before moving to Arkansas in 1995.

In the mid-1980s Plaintiff was

living in California when she began using the HRT drugs Premarin

and Provera for the treatment of menopausal symptoms.

Plaintiff

discontinued HRT when she was diagnosed with breast cancer in 1993
in California.

Plaintiff filed her Complaint against Defendants

more than two years after the public announcement on July 9, 2002,
that

the

National

Institutes

of

Health

had

determined

that

preliminary data from a large-scale, controlled study showed that
ingestion of certain HRT drugs posed a risk of breast cancer in
women.
Plaintiff in her First Amended Complaint (Doc. 41-3) asserts
claims against Defendants for negligence, gross negligence/malice,
strict product liability, fraud and constructive fraud, breach of
express warranty, breach of implied warranty, and violation of the
Arkansas Deceptive Trade Practices Act.

The parties agree that

California law applies in this case, as the allegedly tortious
behavior and resulting injury complained of by Plaintiff occurred
exclusively in California.
Defendants’ sole basis for their Motion for Summary Judgment
is that California’s two-year statute of limitations for personal
injury, codified at Cal. Code Civ. Proc. § 335.1, bars all of
Plaintiff’s claims.

Plaintiff replies that her claims were tolled

by the previous filing of a nationwide class action in which
Plaintiff was a putative class member. She further argues that her
claims for fraud and constructive fraud are governed by a threeyear limitations period, rather than a two-year limitations period,

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and are timely filed.

Finally, Plaintiff contends that summary

judgment at this stage in the litigation would be premature because
case-specific discovery needs to be completed.

The Court will

address all of these arguments.
II.

Legal Standard
In determining whether summary judgment is appropriate, the

moving party bears the burden of establishing both the absence of
a genuine issue of material fact and that it is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(c); Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106
S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Nat’l. Bank of Commerce of El
Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602 (8th Cir. 1999).
Summary judgment is only appropriate when the dispute may be
decided on purely legal grounds.
874 (8th Cir. 19878).

Holloway v. Lockhart, 813 F.2d

The Court must review the facts in a light

most favorable to the party opposing a motion for summary judgment
and give that party the benefit of any inferences that logically
can be drawn from those facts. Canada v. Union Elec. Co., 135 F.3d
1211, 1212-13 (8th Cir. 1998) (citing Buller v. Buechler, 706 F.2d
844, 846 (8th Cir. 1983).
III. Discussion
Plaintiff contends that Defendants’ Motion must be denied
because the filing of a national class action of which Plaintiff
was a putative member tolled the running of the limitations period.
3

On July 15, 2002, a national class action complaint in Lewers v.
Wyeth (Doc. 41-4) was filed in the Northern District of Illinois
alleging damages arising from the use of HRT drugs.

The case was

transferred to the Multi-District Litigation docket in the Eastern
District of Arkansas, along with all other pending HRT cases, and
was voluntarily dismissed on May 21, 2003.

Plaintiff asserts that

the Lewers v. Wyeth case put Defendants on notice of the substance
and nature of the claims against them and tolled the limitations
period.
Taking the allegations asserted in the Complaint as true, as
the Court is required to do, the Plaintiff consumed the same drugs
as were at issue in the Lewers case (specifically, the drug
Prempro, which according to Plaintiff is composed of a combination
of Premarin and Provera).

However, the Court finds that Plaintiff

would not have been a putative member of the plaintiff class in the
Lewers case, for the Lewers class was defined as “all persons in
the United States who took or purchased Prempro after November 17,
1995.”

Doc. 41-4, p. 12.

Plaintiff admits that she ingested

the HRT drugs that allegedly caused her to develop cancer before
1993.

After being diagnosed with cancer in 1993, she no longer

took HRT drugs; therefore, she could not have been a putative class
member in Lewers.
Accordingly,

Defendants

are

correct

that

the

event

that

triggered the statute of limitations is the date on which the
4

National Institutes of Health published a study disclosing the link
between HRT drugs and cancer on July 9, 2002.

Plaintiff’s suit

should have been filed no later than July of 2004, but it was not
filed until eight months later, in March of 2005.
Plaintiff now asks the Court to make an exception to the twoyear limitations rule and preserve her fraud and constructive fraud
claims because those are purportedly governed by a three-year
limitations period under California law (Cal. Code. Civ. Proc.
§ 338(d)).

However, all of Plaintiff’s claims are related to

personal injury based on defective products and are subject to the
two-year statute of limitations.

Prior to the enactment of Cal.

Code Civ. Proc. § 335.1 in 2003, California had a one-year statute
of limitations for personal injury, codified at Cal. Code Civ.
Proc. § 340(3)(2001).

California courts interpreting the former

one-year statute of limitations “look[ed] to the nature of the
rights sued upon rather than to the form of action or to the relief
demanded.” Rivas v. Safety-Kleen Corp., 119 Cal. Rptr. 2d 503, 512
(Cal. Ct. App. 2002). Even though a products liability lawsuit may
assert separate fraud claims for failure to warn and fraudulent
concealment, the styling of the claims does not alter the fact that
the

lawsuit

is

one

defective product.

for

personal

injury

due

to

an

allegedly

See Weinstock v. Eissler, Cal. App. 2d 212

(Cal. 1963) (statute of limitations on personal injury due to
faulty product applies to all causes of action based on false

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representations or fraudulent concealment of nature and extent of
injury); Soliman v. Philip Morris, Inc., 311 F.3d 966, 971 (9th
Cir. 2002) (statute of limitations “bars untimely personal injury
claims based on defective products regardless of the particular
legal theory invoked”); Jefferson v. French Co., 54 Cal. 2d 717,
718 (1960) (“. . . the nature of the right sued upon, not the form
of the action or the relief demanded, determines the applicability
of the statute of limitations”).
In view of California law regarding the applicability of the
two-year

limitations

period

on

product

liability

lawsuits,

Plaintiff’s claims governed by California law are time-barred.1
As for Plaintiff’s argument that case-specific discovery is
1

Plaintiff’s claim that Defendants violated the Arkansas
Deceptive Trade Practices Act (A.C.A. § 4-88-101, et seq.) is
dismissed sua sponte due to Plaintiff’s lack of standing.
Plaintiff is currently a resident of Arkansas, but she concedes
that she purchased and consumed all allegedly defective HRT drugs
in question in California, not in Arkansas. She further admits
that she stopped taking the drugs in question after she was
diagnosed with cancer, again while she was living exclusively in
California. Therefore, Plaintiff lacks standing to assert a claim
under the ADTPA because she did not purchase, consume, or sustain
injury due to products that were advertised, manufactured,
purchased, or sold in Arkansas. It is well settled that a court
may dismiss a claim sua sponte due to a party’s lack of standing to
assert that claim. Lujan v. Defenders of Wildlife, 504 U.S. 555,
559-60 (1992) (“[S]tanding is an essential and unchanging part of
the case-or-controversy requirement of Article III”); Adarand
Construction, Inc. v. Mineta, 534 U.S. 103, 109 (2001) (a court is
“obliged to examine standing sua sponte where standing has
erroneously been assumed...”); Meuir v. Greene County Jail
Employees, 487 F.3d 1115, 1119 (8th Cir. 2007); Mayo v. Norris,
2009 WL 4730687 (E.D. Ark. Dec. 4, 2009) (party dismissed sua
sponte for lack of standing, even though issue of standing was not
raised by defendants in their motion to dismiss).

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ongoing and summary judgment is premature, Plaintiff has failed to
identify what remaining facts that would be necessary to respond to
the instant Motion.

It appears to the Court that extensive fact

discovery has taken place in this 2005 case, especially considering
the Court’s review of the hundreds of pages of depositions and
other documents attached to both the Motion for Summary Judgment
and Plaintiff’s Response.
IV.

Conclusion
Accordingly, Defendants’ Motion for Summary Judgment (Doc. 32)

is GRANTED.

This case is dismissed with prejudice with all

parties directed to bear their own fees and costs.
IT IS SO ORDERED this 7th day of November 2011.

/s/ Robert T. Dawson
Robert T. Dawson
United States District Judge

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