Parker et al v. Astrazeneca Pharmaceuticals LP et al

Filing 13

MEMORANDUM OPINION & ORDER: 1) Defs' MOTION to Dismiss 6 is GRANTED; 2) Separate judgment shall enter concurrently herewith. Signed by Judge William O. Bertelsman on 2/12/2015.(ECO)cc: COR, Jessica Vanden Brink via U.S. Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO. 2:14-cv-205 (WOB-CJS)
WILLIAM R. PARKER, ET AL.

PLAINTIFFS

VS.
ASTRAZENECA PHARMACEUTICALS LP,
ET AL.

DEFENDANTS

MEMORANDUM OPINION AND ORDER

This

is

a

products-liability

action

for

personal

injuries.

Plaintiff William Parker alleges that he suffered a heart attack and
contracted

diabetes

manufactured
AstraZeneca

by
LP

after

ingesting

Defendants

husband’s consortium.

cholesterol

AstraZeneca

(collectively

McKesson Corporation.

the

drug

CRESTOR®,

Pharmaceuticals

“AstraZeneca”)

and

LP

distributed

and
by

Plaintiff Merry Parker alleges loss of her
(Doc. 1-1, KY Complaint, at 4-15.)

The case is currently before the Court on a motion to dismiss
filed by AstraZeneca.

(Doc. 6.)

The Court has reviewed the parties’

briefs and concludes that oral argument is not necessary.

For the

following reasons, the Court grants Defendants’ motion to dismiss.
I. FACTS
On

July

22,

2010,

Plaintiff

William

Parker,

a

citizen

resident of Demossville, Kentucky, suffered a heart attack.
the same time, Plaintiff was diagnosed with diabetes.

and

Around

Plaintiffs

allege that Parker’s health problems are related to his use of the
cholesterol drug CRESTOR®, manufactured and distributed by Defendants.
(Doc. 1-1, KY Complaint, at 4-5.)
Plaintiffs filed an action in California state court arising out
of the same events and asserting the same claims against the same
defendants on July 19, 2011.

(Doc. 6-2, CA Complaint, at 4-17.)

On

September 30, 2011, the California state court granted Defendants’
forum non conveniens motion and stayed the case in order to allow
Plaintiffs to re-file in Kentucky.
Plaintiffs

then

Kentucky state court.

waited

(Doc. 6-4, CA Order, at 2-3.)

more

than

three

years

to

re-file

in

They filed the exact same suit in Pendleton

Circuit Court on November 5, 2014.

(Doc. 1-1, KY Complaint, at 4-15.)

AstraZeneca removed the Kentucky state-court action to this Court
on December 8, 2014, (Doc. 1-1, Notice of Removal, at 1), and filed
the instant motion to dismiss based on the statute of limitations on
December 15, 2014, (Doc. 6).
II. ANALYSIS
Kentucky Revised Statutes section 413.140(1)(a) provides a oneyear statute of limitations for actions based on personal injuries.
That statute of limitations begins to run after a cause of action
accrues.

See Ky. Rev. Stat. Ann. § 413.140(1).

For purposes of the

instant motion, the Court assumes that Plaintiffs’ claims accrued at
latest when they filed their initial action in California state court
on July 19, 2011.

Because Plaintiffs did not file their complaint in

Kentucky state court until November 5, 2014, more than three years
after the filing of the initial lawsuit and more than four years after

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Parker’s heart attack, the statute of limitations presumptively bars
their claims.
Plaintiffs’ argument against dismissal of this case based on the
statute of limitations is nonsensical.

Their argument essentially

boils down to the following: Because the California state-court action
was

timely

filed

and

that

court

stayed

that

action

rather

than

dismissing it, this Court must prevent Defendants from ever raising a
statute of limitations defense.
contemplates

that

the

Kentucky

But the California court’s order
statute

of

limitations

might

bar

Plaintiffs’ claims:

“The forum non conveniens motion is GRANTED and

the

pending

case

Kentucky.

is

STAYED

final

resolution

of

a

case

filed

in

The stay may be lifted upon a determination . . . that the

claims are time barred.”

(Doc. 6-4, CA Order, at 3 (emphasis added).)

The effect of a dismissal by this Court, then, does not somehow
give Defendants an additional advantage as Plaintiffs claim.

Despite

Plaintiffs’ wholly unreasonable delay in filing an identical lawsuit
in Kentucky, this litigation likely will resume in California because
the state court there retained jurisdiction over the case.
III. CONCLUSION
For the foregoing reasons, the Court grants AstraZeneca’s motion
to dismiss Plaintiffs’ claims as barred by the statute of limitations.
Therefore,

having

heard

the

parties

and

the

Court

being

sufficiently advised,
IT IS ORDERED that:
(1)

Defendants’ motion to dismiss (Doc. 6) be, and is hereby,

GRANTED;

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(2)

A separate judgment shall enter concurrently herewith.

This 12th day of February, 2015.

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