Tuduj v. Sanofi-Aventis U.S. LLC et al

Filing 119

ORDER granting 85 Motion to Dismiss for Failure to State a Claim; granting 87 Motion to Dismiss for Failure to State a Claim; granting 88 Motion to Dismiss for Failure to State a Claim. The Court Clerk is directed to enter judgment in favor of defendants Sanofi-Aventis U.S. LLC, GlaxoSmithKline and Wyeth-Pfizer and against plaintiff Tom Tuduj. Signed by Magistrate Judge Reona J. Daly on 4/18/17. (kos)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TOM TUDUJ,
Plaintiff,
v.
SANOFI-AVENTIS U.S. LLC,
GLAXOSMITHKLINE and
WYETH-PFIZER,
Defendants.

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Case No. 3:15-cv-00320-RJD

MEMORANDUM AND ORDER
DALY, Magistrate Judge:
Following a 2009 bench trial in Cook County Circuit Court, plaintiff Tom Tuduj was
found guilty of first degree murder and the disarming of a police officer.1 People v. Tuduj, 2014
IL App (1st) 092536, ¶ 1, 9 N.E.3d 8, 13. According to the record in his criminal case, Tuduj
murdered his supervisor on May 16, 2006, following a workplace dispute. Id. at ¶ 8, 9 N.E.3d at
15. At trial, Tuduj raised the affirmative defense of involuntary intoxication. Id. at ¶ 57, 9 N.E.3d
at 24. At the time of the murder, Tuduj was taking prescription medications consisting of
Wellbutrin (an antidepressant), Ambien (a sleep aid) and Propranolol (hypertension medication).
Id. at ¶ 26, 9 N.E.3d at 18. Tuduj argued at trial that the combination of the medication (the
Wellbutrin, specifically) and underlying mental illness created “a drugged state that prevented
him from conforming his behavior to the requirements of law.” Id. at ¶ 27, 9 N.E.3d at 18. Tuduj
was permitted to raise the affirmative defense, but the trial court judge ultimately concluded that
he “was able to appreciate the criminality of his actions” despite the medication. Id. at ¶ 77, 9

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This Court takes judicial notice of Tuduj’s underlying criminal proceedings. See Green v. Warden, U.S.
Penitentiary, 699 F.2d 364, 369 (7th Cir. 1983). (“federal courts may also take notice of proceedings in other courts,
both within and outside of the federal judicial system, if the proceedings have a direct relation to matters at issue”).

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N.E.3d at 30. Tuduj was found guilty and sentenced to 40 years for the murder charge and 5
years for the disarming of a police officer. Id. at ¶ 79, 9 N.E.3d at 31.
Tuduj, now incarcerated at Menard Correctional Center, filed this product liability action
pro se on March 23, 2015. (Doc. 1). Tuduj was granted leave to amend and he now proceeds on
his fourth amended complaint. (Doc. 83). In his fourth amended complaint, Tuduj asserts various
products liability causes of action against Sanofi-Aventis U.S. LLC (the manufacturer of
Ambien),2 GlaxoSmithKline (the manufacturer of Wellbutrin)3 and Wyeth-Pfizer (the
manufacturer of Propranolol).4 Essentially, Tuduj asserts that the medications induced his
criminal conduct. In other words, he would not have committed the murder had he not been
prescribed the medications.5
The defendants have now filed motions to dismiss. (see Docs. 85 – 89). The motions
present three main arguments for dismissal: Tuduj is collaterally estopped from asserting that the
murder was caused by the medications because the issue was already litigated in his criminal
case; the claims are time barred; and Tuduj has failed to plead sufficient facts necessary to
survive a motion to dismiss. It is unclear whether collateral estoppel is appropriate under these
circumstances because while Tuduj presented a theory that the combination of medications
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Tuduj asserts the following claims against Sanofi-Aventis U.S. LLC: Count I: Negligence, Count II: Strict
Liability, Count III: Breach of Implied Warranties, Count IVA: Fraud, Count IVB: Primary Physician Fraud, Count
V: Unfair Trade Practices, Count VI: Express Warranty, Count VII: Consumer Fraud Violations, Count VIII:
Concert of Action Liability, Count IX: Civil Conspiracy Liability, Count X: Enterprise Liability, Count XI:
Alternate Liability.
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Tuduj asserts the following claims against GlaxoSmithKline: Count I: Negligence, Count II: Strict Liability, Count
III: Breach of Implied Warranties, Count IVA: Fraud, Count IVB: Primary Physician-Fraud, Count V: Unfair Trade
Practices, Count VI: Express Warranty, Count VII: Consumer Fraud Violations, Count VIII: Concert of Action
Liability, Count IX: Civil Conspiracy Liability, Count X: Enterprise Liability and Count XI: Alternate Liability.
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Tuduj asserts the following claims against Wyeth-Pfizer: Count I: Negligence, Count II: Breach of Implied
Warranties, Count III: Concert of Action Liability, Count IV: Civil Conspiracy Liability, Count V: Fraud, Count VI:
Unfair Trade Practice; Count VII: Express Warranty, Count VIII: Consumer Fraud Violations, Count IX:
Alternative Liability, Count X: Strict Liability.
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The complaint initially included claims against Dr. Eleonora Kul-Lipski and her employer, Community First
Medical Center. Dr. Kul-Lipski prescribed Tuduj the medications currently at issue. The claims were later
voluntarily dismissed because Tuduj was unable to obtain a physician’s affidavit of merit that is required under the
Illinois “Healing Art Malpractice” statute. See 735 ILCS 5/2-622.

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caused him certain side effects, Tuduj did not, in fact, raise the “Ambien defense” at his criminal
trial. Tuduj appears to assert in this civil action that the Ambien was the primary contributing
medication that induced his criminal acts, while at his criminal trial he argued that the Wellbutrin
induced the criminal acts. Collateral estoppel may therefore be applicable to claims against
Wellbutrin manufacturer GlaxoSmithKline, but it is unclear whether it should be applied against
the other two defendants.
Nevertheless, this matter may be resolved on a much simpler basis – timeliness. Failure
to file suit within the applicable statute of limitations is an affirmative defense, but 12(b)(6)
dismissal is appropriate if the complaint itself provides all of the elements of the affirmative
defense. Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 935 (7th Cir. 2012). The
murder occurred on May 16, 2006 and Tuduj was found guilty in January, 2009. He then
initiated this lawsuit on March 23, 2015, almost nine years after the murder took place. In
Illinois, the statute of limitations is two years for personal injury negligence claims, 735 ILCS
5/13-202; two years for products liability strict liability claims, 735 ILCS 5/13-213; four years
for warranty claims, 810 ILCS 5/2-725; five years for fraud claims, 735 ILCS 5/13-205; and
three years for claims brought pursuant to the Illinois Consumer Fraud and Deceptive Business
Practices Act, 815 ILCS 505/10a. The Illinois Supreme Court has held that the statute of
limitation period begins to run when “a person knows or reasonably should know of his injury
and also knows or reasonably should know that it was wrongfully caused.” Knox Coll. v. Celotex
Corp., 88 Ill. 2d 407, 415, 430 N.E.2d 976, 980 (1981). When that occurs, “the burden is upon
the injured person to inquire further as to the existence of a cause of action.” Witherell v.
Weimer, 85 Ill. 2d 146, 156, 421 N.E.2d 869, 874 (1981).

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From the very beginning, Tuduj has asserted that the medications were a contributing
factor in the murder. The record in the criminal case states that Tuduj was interrogated by the
Chicago police several hours after the murder took place. The detective who interrogated Tuduj
testified at trial that during the interrogation Tuduj admitted committing the murder and he
“blamed it on his medications.” People v. Tuduj, 2014 IL App (1st) 092536, ¶ 21, 9 N.E.3d 8, 17.
The involuntary intoxication argument was then a central component of Tuduj’s defense through
trial and appeal. Tuduj’s claims thus accrued on the date of the murder, May 16, 2016.
In response to the motions to dismiss, Tuduj argues that his claims are timely (or his
untimeliness should be excused) according to the discovery rule, the continuing violations rule
and the fraudulent concealment statute. Pursuant to the discovery rule, “a party's cause of action
accrues when the party knows or reasonably should know of an injury and that the injury was
wrongfully caused.” Clay v. Kuhl, 189 Ill. 2d 603, 608, 727 N.E.2d 217, 220 (2000). The purpose
of the rule is to “to prevent the unduly harsh result of a statute of limitations barring a plaintiff's
lawsuit before she was even aware that she was injured.” Hawkins v. Nalick, 2012 IL App (5th)
110553, ¶ 15, 975 N.E.2d 793, 796. Tuduj provides vague assertions that he “discovered” the
defendants’ wrongdoing around 2013 and 2014. However, since May 16, 2006, Tuduj has
continuously maintained that the medications caused him to commit murder.
The continuing violations rule is also inapplicable. “A continuing violation or tort is
occasioned by continuing unlawful acts and conduct, not by continual ill effects from an initial
violation.” Feltmeier v. Feltmeier, 207 Ill. 2d 263, 278, 798 N.E.2d 75, 85 (2003). The alleged
violation occurred on May 16, 2006, but Tuduj presumably ceased taking the medication
immediately thereafter. A “continuing violation” cannot be said to have occurred after the

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murder took place and Tuduj was no longer consuming the medication. Thus, the continuing
violation doctrine cannot extend the statute of limitations under these circumstances.
Finally, Tuduj’s untimeliness is not excused through the fraudulent concealment statute.
Pursuant to 735 ILCS 5/13-215, “If a person liable to an action fraudulently conceals the cause
of such action from the knowledge of the person entitled thereto, the action may be commenced
at any time within 5 years after the person entitled to bring the same discovers that he or she has
such cause of action, and not afterwards.” Tuduj argues that the defendants have concealed the
risks of side effects for the medications. However the Illinois Supreme Court noted, “[a]s a
general rule, the concealment of a cause of action sufficient to toll the statute of limitations
requires affirmative acts or representations designed to prevent discovery of the cause of action.”
Chicago Park Dist. v. Kenroy, Inc., 78 Ill. 2d 555, 561, 402 N.E.2d 181, 184 (1980). The
defendant’s “mere silence” is insufficient to establish fraudulent concealment. Zagar v. Health &
Hosps. Governing Comm'n of Cook Cty., 83 Ill. App. 3d 894, 898, 404 N.E.2d 496, 500 (1980).
Here, Tuduj argues that the defendants should have been more forthcoming in identifying
potential side effects of their medications. However Tuduj fails to identify which affirmative
acts or representations by the defendants constitute fraudulent concealment. Tuduj “knew of
sufficient facts upon which to base a cause of action” throughout his criminal trial and, according
to the Chicago detective who interrogated him, on the day of the murder. Smith v. City of
Chicago Heights, 951 F.2d 834, 838 (7th Cir. 1992). Fraudulent concealment is therefore
inapplicable.
Tuduj’s claims accrued on May 16, 2006 and he filed this lawsuit almost nine years later
on March 23, 2015. Regardless of the theory of liability, Tuduj’s products liability claims
against the defendants were filed too late.

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CONCLUSION
The defendants’ motions to dismiss are hereby granted. The Court Clerk is directed to
enter judgment in favor of defendants Sanofi-Aventis U.S. LLC, GlaxoSmithKline and WyethPfizer and against plaintiff Tom Tuduj. No further claims remain.

IT IS SO ORDERED.
DATED: April 18, 2017.
s/Reona J. Daly
REONA J. DALY
UNITED STATES MAGISTRATE JUDGE

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