Falls v. Eli Lilly Company

Filing 32

OPINION AND ORDER: GRANTING 10 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Eli Lilly Company & 18 Amended MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM in Light of Additional Allegations in Docket No. 14. Other related motions ( 12 , 13 , 19 , 25 , 39 , and 30 ) are denied as moot. ***Civil Case Terminated. Signed by Judge Joseph S Van Bokkelen on 2/9/15. (jld)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

Kesi Azikiwe Falls, Sr.,
Plaintiff,

v.

Case No. 3:14-CV-746 JVB

Eli Lilly and Company, 

Defendant.

OPINION AND ORDER
A. Introduction
On April 4, 2014, pro se Plaintiff Kesi Azikiwe Falls filed a product liability action against
Defendant Eli Lilly and Company. Before the Court are Defendant’s motions to dismiss for
failure to state a claim (DE 10 and 18).

B. Background
Before the present action, Plaintiff had filed another case in 2007 alleging identical injuries.
That case was transferred to the Eastern District of New York by the Judicial Panel on
Multidistrict Litigation. The case was then dismissed without ruling on merits. See Falls v. Eli
Lilly and Co., 3:07-cv-166 (N.D. Ind. Mar. 7, 2008).
Seven years later, Plaintiff filed the present action using the court’s standard template for
Section 1983 claims. The complaint states that he started using Zyprexa, a drug produced by

Defendant, in 1999, when he was an incompetent minor. Later, he discovered that he was
permanently injured from using this drug. He alleges that the defendant’s negligence caused such
injuries.
After receiving the defendant’s motion to dismiss (DE 10), plaintiff filed an amended
complaint titled “Product Liability Complaint,” which substantively states the same allegations
as the initial complaint. Defendant subsequently filed another motion to dismiss (DE 18).

C. Discussion
(1) 42 U.S.C. § 1983 Claim
Allegations of a pro se complaint are held to less stringent standards than formal pleadings
drafted by lawyers. Accordingly, pro se complaints are liberally construed. Alvarado v. Litscher,
267 F.3d 648, 651 (7th Cir. 2001). Although Plaintiff filed his action using the template for §
1983 claims, both the original complaint and the amended complaint show that he is asserting a
product liability claim. As a result, the Court’s ruling will not be based on § 1983.

(2) Statute of Limitation
Under Indiana law, a product liability action based on the theory of negligence or strict
liability must be commenced within two years after the cause of action accrues. Ind. Code. 3420-3-1(b)(1). A cause of action accrues “when resultant damage of a negligent act is
ascertainable or by due diligence could be ascertained.” Burks v. Rushmore, 534 N.E.2d 1101,
1104 (Ind. 1989). This statute of limitation applies to all persons regardless of minority or legal
disability. Ind. Code. 34-20-3-1(a).

Although the amended complaint does not provide enough information about the date on
which the cause of action accrued, Plaintiff already knew of his alleged injury when he filed his
first action against Defendant asserting identical claims in 2007. Therefore, the cause of action
accrued, at the latest, in 2007. Because the present case was filed nearly seven years later, the
statute of limitation has run. Accordingly, Plaintiff’s claim is time-barred.

D. Conclusion
For these reasons, Defendant’s motion to dismiss (DE 18) is granted. Other related motions
(DE 10, 12, 13, 19, 25, 39, and 30) are denied as moot.

SO ORDERED on February 9, 2015.

s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE