Gilmore et al v. Bayer Corporation et al
Filing
172
ORDER granting 149 Motion for Partial Summary Judgment as to the Claims of Plaintiffs Leo Reyes, Darrell Morman, John Scaglione, and Betty Mangum brought by Defendants Bayer Corporation, Bayer Healthcare, LLC, and Bayer Healthcare Pharmaceuticals, Inc. The claims of Reyes, Morman, Scaglione, and Mangum are DISMISSED with prejudice; see attached order for details. Signed by Judge G. Patrick Murphy on 3/29/2012. (jhs)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
THOMAS L. GILMORE, et al.,
Plaintiffs,
vs.
BAYER CORPORATION, et al.,
Defendants.
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CIVIL NO. 09-986-GPM
MEMORANDUM AND ORDER
MURPHY, District Judge:
This lawsuit concerns personal injuries allegedly caused by Trasylol, a prescription
medication manufactured and distributed by Defendants Bayer Corporation, Bayer Healthcare, LLC,
and Bayer Healthcare Pharmaceuticals, Inc. (hereinafter, collectively, “Bayer”). This case was filed
originally in the Circuit Court of the Twentieth Judicial Circuit, St. Clair County, Illinois, and comes
to this Court on removal from state court; federal subject matter jurisdiction is proper on the basis
of diversity of citizenship pursuant to 28 U.S.C. § 1332, as amended by the Class Action Fairness
Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.).
Currently this case is before the Court on Bayer’s motion for summary judgment as to the claims
of Plaintiffs Leo Reyes, Darrell Morman, John Scaglione, and Betty Mangum (Doc. 149).
On February 1, 2012, counsel for Reyes, Morman, Scaglione, and Mangum filed a preliminary
response to Bayer’s summary judgment in which Reyes, Morman, Scaglione, and Mangum
requested forty-five days to supplement their response to Bayer’s summary judgment motion. See
Doc. 166. The request for a forty-five day extension of time for Reyes, Morman, Scaglione, and
Mangum to supplement their response to Bayer’s summary judgment motion was granted by the
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Court on February 2, 2012.
See Doc. 167.
Reyes, Morman, Scaglione, and
Mangum never supplemented their preliminary response to Bayer’s summary judgment. Thus, the
Court deems Bayer’s summary judgment motion to have been fully briefed, and now rules
as follows.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, generally at any time until thirty
days after the close of discovery in a case, “[a] party may move for summary judgment, identifying
each claim or defense – or the part of each claim or defense – on which summary judgment is
sought.” Fed. R. Civ. P. 56(a). The rule provides further that “[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law. The court should state on the record the reasons for
granting or denying the motion.” Id. Under Rule 56, “[a] party asserting that a fact cannot
be . . . genuinely disputed must support the assertion by . . . citing to particular parts of materials in
the record . . . or . . . showing that the materials cited do not establish the . . . presence of a genuine
dispute[.]” Fed. R. Civ. P. 56(c)(1)(A)-(B). The rule provides also that “[t]he court need consider
only the cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).
With respect to affidavits and declarations, the rule provides that “[a]n affidavit or declaration used
to support or oppose a motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to testify
on the matters stated.” Fed. R. Civ. P. 56(c)(4).
In responding to a summary judgment motion, the non-moving party may not simply rest
upon the allegations contained in the pleadings but must present specific facts to show that a genuine
issue of material fact exists. See Johnson v. City of Fort Wayne, Ind., 91 F.3d 922, 931
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(7th Cir. 1996); Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1317 (7th Cir. 1995). A genuine
issue of material fact is not demonstrated by the mere existence of some alleged factual dispute
between the parties or by some metaphysical doubt as to the material facts. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Weeks v. Samsung Heavy Indus.
Co., 126 F.3d 926, 933 (7th Cir. 1997). Rather, a genuine issue of material fact exists only if a
fair-minded jury could return a verdict for the non-moving party on the evidence presented. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Michas v. Health Cost Controls of Ill.,
Inc., 209 F.3d 687, 692 (7th Cir. 2000). In considering a summary judgment motion, a court must
draw all reasonable inferences in the light most favorable to the non-moving party. See Miller v.
Herman, 600 F.3d 726, 733 (7th Cir. 2010); Perdomo v. Browner, 67 F.3d 140, 144 (7th Cir. 1995).
On summary judgment a court may not make credibility determinations or weigh the evidence,
because these are tasks for a finder of fact. See O’Leary v. Accretive Health, Inc., 657 F.3d 625, 630
(7th Cir. 2011) (citing Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010)); Morfin v.
City of E. Chicago, 349 F.3d 989, 999 (7th Cir. 2003). In evaluating a motion for summary
judgment, “the court has one task and one task only: to decide, based on the evidence of record,
whether there is any material dispute of fact that requires a trial.” Payne v. Pauley, 337 F.3d
767, 770 (7th Cir. 2003) (quoting Waldridge v. American Hoechst Corp., 24 F.3d 918, 920
(7th Cir. 1994)) (brackets omitted). See also Watson v. Amedco Steel, Inc., 29 F.3d 274, 277
(7th Cir. 1994) (quoting Switzerland Cheese Ass’n, Inc. v. E. Horne’s Mkt., Inc., 385 U.S. 23, 25
(1966)) (“In denying [a summary judgment] motion, the court ‘decides only one thing – that the case
should go to trial’”). With the foregoing standard in mind, the Court turns to consideration of
Bayer’s summary judgment motion.
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With respect to Morman and Mangum, they have conceded in their preliminary response to
Bayer’s summary judgment motion that they “are unable at this time to present a genuine issue of
fact as to causation.” Doc. 166 at 3, 4. As to Reyes, the Court likewise finds that there is no genuine
issue for trial on his claim against Bayer. Reyes believes he may have been administered Trasylol
during surgery on August 25, 2007. However, the anesthesiology report and the billing records from
the surgery clearly show that Reyes was not given Trasylol and instead was administered Amicar
or aminocaproic acid. See Doc. 149-1 at 3; Doc. 171-1 at 2. Amicar is, like Trasylol, a medication
used to control bleeding during cardiac surgery but which, unlike Trasylol, is not manufactured by
Bayer. Accordingly, Reyes’s claim against Bayer will be dismissed. Finally, as to Scaglione, it is
plain that his claim for relief against Bayer is time-barred. Scaglione alleges that his father,
John F. Scaglione, was administered Trasylol during open heart surgery on April 12, 2004, and that
the medication caused Scaglione’s father to develop renal failure, leading to his death on
September 18, 2004. At Scaglione’s deposition, taken July 29, 2011, Scaglione testified that, shortly
after the death of Scaglione’s father, an attorney named Keach “wanted to take a look at what was
going on because everybody felt that there had to be something wrong[.]” Doc. 171-2 at 7.
However, Scaglione did not bring this suit against Bayer until 2009. Although Scaglione is a
resident of Nevada, Illinois courts, including federal courts sitting in Illinois, presumptively apply
Illinois statutes of limitations, including Illinois law governing accrual of claims for purposes of a
statute of limitations. See ABF Capital Corp. v. McLauchlan, 167 F. Supp. 2d 1011, 1014
(N.D. Ill. 2001). In Illinois, the statute of limitations for personal injuries, including personal
injuries caused by intentional infliction of emotional distress, is two years. See 735 ILCS 5/13-202;
Feng v. Sandrik, 636 F. Supp. 77, 84 (N.D. Ill. 1986). The Illinois statute of limitations for
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claims of breach of warranty is four years. See 810 ILCS 5/2-725(1) (2); Edwards v. Regis Corp.,
No. 10-1011, 2011 WL 777271, at *5 (C.D. Ill. Feb. 25, 2011). The Illinois statute of limitations
for common-law fraud and negligence is five years. See 735 ILCS 5/13-205; Clark v. Robert W.
Baird Co., Inc., 142 F. Supp. 2d 1065, 1074-75 (N.D. Ill. 2001); E.J. Korvette, Div. of Spartan
Indus., Inc. v. Esko Roofing Co., 350 N.E.2d 10, 13 (Ill. App. Ct. 1976). The Illinois statute of
limitations for claims under the Illinois Wrongful Death Act, 740 ILCS 180/0.01 et seq., is two
years. See 740 ILCS 180/2. Actions under the Illinois Survival Act, 755 ILCS 5/27-6, are governed
by a two-year statute of limitations. See 735 ILCS 5/13-209; McDaniel v. Johns-Manville Sales
Corp., 542 F. Supp. 716, 717 (N.D. Ill. 1982). A claim under the Illinois Family Expense Act, 750
ILCS 65/15, based upon personal injuries or the wrongful death of a family member is deemed to
be derivative of the family member’s claim for personal injuries and wrongful death, and therefore
is governed by the two-year limitation period for personal injury, Survival Act, and Wrongful Death
Act claims. See 735 ILCS 5/13-203; Ragsdell v. S.C. Johnson & Son, Inc., No. 00 C 3278, 2001
WL 629299, at **1-2 (N.D. Ill. May 29, 2001); Dewey v. Zack, 651 N.E.2d 643, 648
(Ill. App. Ct. 1995).
In general, of course, Illinois applies the so-called “discovery rule” in actions involving “tort,
tort arising from contract, or other breach of contractual duty.” Hermitage Corp. v. Contractors
Adjustment Co., 651 N.E.2d 1132, 1136 (Ill. 1995). Under the discovery rule, a cause of action does
not accrue for purposes of the statute of limitations, and thus the relevant limitations period does not
begin to run, “until the injured party knows or should have known of his injury.” City Nat’l Bank of
Fla. v. Checkers, Simon & Rosner, 32 F.3d 277, 282 (7th Cir. 1994) (quoting Knox Coll. v. Celotex
Corp., 430 N.E.2d 976, 979 (Ill. 1981)). See also Clay v. Kuhl, 727 N.E.2d 217, 220 (Ill. 2000)
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(the discovery rule delays the accrual of a cause of action, and hence the start of the clock on the
statute of limitations, until a plaintiff “knows or reasonably should know of an injury and that the
injury was wrongfully caused”). Importantly, “[t]he discovery rule does not allow a plaintiff to wait
until the defendant admits it has caused plaintiff’s damage,” and it “places the burden on plaintiffs
to inquire as to the existence of a cause of action.” Carey v. Kerr-McGee Chem. Corp., 999 F. Supp.
1109, 1116 (N.D. Ill.1998). Said differently, under the discovery rule, a cause of action accrues
when a person is “possessed of sufficient information concerning its injury to put a reasonable
person on inquiry to determine whether actionable conduct is involved.” Vector-Springfield Props.,
Ltd. v. Central Ill. Light Co., 108 F.3d 806, 809 (7th Cir. 1997). If the standard were otherwise, then
a person could wait comfortably until advised by a lawyer that he or she can sue, thus defeating one
of the primary purposes behind statutes of limitations, that is, “to encourage claimants to investigate
and pursue causes of action in order to discourage delay[.]” Langendorf v. City of Urbana, 754
N.E.2d 320, 326 (Ill. 2001) (citing Golla v. General Motors Corp., 657 N.E.2d 894, 902-03
(Ill. 1995)). Here it plain from the record that Scaglione knew of his cause of action, or at least was
on inquiry notice as to whether a cause of action existed, in 2004. Although in Scaglione’s affidavit
in response to Bayer’s summary judgment motion (Doc. 166-2), Scaglione claims that he did not
discover his cause of action until 2008, affidavits given on summary judgment that contradict a
party’s earlier deposition testimony are to be disregarded. See Ineichen v. Ameritech, 410 F.3d
956, 963 (7th Cir. 2005) (“Although at the summary judgment stage we must interpret the evidence
in the light most favorable to [the non-moving party], that does not allow her to contradict deposition
testimony with later-filed contradictory affidavits.”) (citation omitted). Scaglione’s claim against
Bayer will be dismissed.
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To conclude, Bayer’s motion for summary judgment (Doc. 149) is GRANTED, and the
claims of Plaintiffs Leo Reyes, Darrell Morman, John Scaglione, and Betty Mangum against
Bayer are DISMISSED with prejudice.
The Clerk of Court is directed to terminate
Reyes, Morman, Scaglione, and Mangum as parties to this litigation on the electronic docket of
the case.
IT IS SO ORDERED.
DATED: March 29, 2012
/s/ G. Patrick Murphy
G. PATRICK MURPHY
United States District Judge
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