Linton v. Wyeth, et al
Filing
42
Memorandum Opinion and Order granting 31 MOTION for Summary Judgment on Statute of Limitations. A separate judgment will be entered. Signed by District Judge Tom S. Lee on 10/25/12 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
MARY LINTON
PLAINTIFF
VS.
CIVIL ACTION NO. 1:04CV705TSL-MTP
PHARMACIA INC.; PFIZER, INC.;
AND PHARMACIA AND UPJOHN CORPORATION
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of defendants
Pharmacia Inc., Pfizer, Inc. and Upjohn Corporation for summary
judgment on the basis of the statute of limitations.
Plaintiff
Mary Linton has responded to the motion and the court, having
considered the memoranda of authorities, together with
attachments, submitted by the parties, concludes the motion should
be granted.
Mary Linton took the hormone replacement therapy (HRT) drug
Provera from December 1984 or January 1985 until 1999 as treatment
for menopausal symptoms.
On January 6, 2000, Ms. Linton was
diagnosed with breast cancer.
More than four years later, on July
9, 2004, she filed the present lawsuit alleging her breast cancer
was caused by Provera.1
1
Ms. Linton has asserted product liability
Provera was manufactured, marketed and distributed by
Pharmacia, Inc. and Pharmacia and Upjohn.
Pfizer has been named as a defendant based on plaintiff’s
allegation, upon information and belief, that Pfizer is liable as
a successor-in-interest to Pharmacia & Upjohn (Upjohn).
Defendants assert in their motion that Pfizer did not manufacture
or distribute Provera during the time plaintiff took this
medication, is not a successor-in-interest to any other defendant
claims, and claims for breach of express warranty and negligent
and fraudulent misrepresentations, all based, in general, on
allegations that defendants knew or should/could have known that
Provera caused breast cancer and yet failed to adequately warn
about, and/or misrepresented and/or concealed the known or
knowable risk of breast cancer from ingestion of Provera, which
proximately caused plaintiff's breast cancer.
Defendants have
moved for summary judgment, contending plaintiff's claims are
barred by the three-year statute of limitations in Mississippi
Code Annotated § 15-1-49.2
The parties agree that the applicable statute of limitations
for all of the claims asserted by plaintiff is the general
three-year statute of limitations set forth in Mississippi Code
Annotated § 15-1-49.
See § 15-1-49(1) ("All actions for which no
and is not independently liable for the past acts of any other
defendant. However, while Pfizer has reserved the right to seek
dismissal on these bases, the present motion seeks dismissal
solely on the basis of the statute of limitations.
Defendant Wyeth manufactured the HRT drug Prempro. Although
plaintiff has named Wyeth as a defendant and alleges in her
complaint that she took Prempro, in her deposition testimony, she
denied having taken Prempro. For that reason, Wyeth is not a
proper defendant and will be dismissed.
2
This case was originally filed in state court and was
removed on the basis of diversity jurisdiction. Soon after
removal, it was transferred to the Multi–District Litigation (MDL)
Docket No. 1507: In re Prempro Products Liability Litigation (In
re Prempro) before District Judge William R. Wilson, Jr. of the
Eastern District of Arkansas. The case remained pending in the
MDL until March 9, 2012, when it was remanded to this court.
Defendants filed their motion for summary judgment promptly after
remand from the MDL court.
2
other period of limitation is prescribed shall be commenced within
three (3) years next after the cause of such action accrued, and
not after.").
Their dispute – or their first dispute – centers on
when the limitations period commenced.
Section 15-1-49(2)
establishes a latent injury discovery rule, stating,
(2) In actions for which no other period of
limitation is prescribed and which involve latent injury
or disease, the cause of action does not accrue until
the plaintiff has discovered, or by reasonable diligence
should have discovered, the injury.
Miss. Code Ann. § 15-1-49(2).
applies in this case.
There is no dispute that this rule
However, whereas defendants argue that all
of plaintiff's claims accrued on the date of diagnosis of her
breast cancer since that is the date on which she discovered "the
injury," plaintiff insists that she did not discover "the injury"
until at the earliest, July 2002, when published reports of the
results of a Women's Health Initiative (WHI) study first linked
HRT drugs to breast cancer.
Plaintiff submits it was then that
she first knew or should (or could) have known that there was a
causal link between Provera and breast cancer and thus that this
is the first date on which she knew or should have known that she
had a "legally recognizable injury."
The argument that a cause of action involving a latent injury
does not accrue under § 15-1-49(2) until the would-be plaintiff
discovers or reasonably should have discovered both the injury and
the cause of her injury has been repeatedly rejected by the
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Mississippi Supreme Court, and by the Fifth Circuit and this court
applying the Mississippi Supreme Court's interpretation of the
statute.
See Angle v. Koppers, Inc., 42 So. 3d 1, 3 (Miss. 2010)
(holding that a cause of action for recovery on account of latent
disease or injury "accrues upon discovery of the injury, not
discovery of the injury and its cause"); Lincoln Electric Co. v.
McLemore, 54 So. 3d 833 (Miss. 2010) (holding that "... Section
15–1–49 does not require a plaintiff to know the cause of the
injury before accrual of the cause of action[,]" and thus
"...knowledge of the cause of an injury is irrelevant to the
analysis [under §15-1-49(2)"); Owens-Illinois, Inc. v. Edwards,
573 So. 2d 704, 709 (Miss. 1990) (stating that "[t]he cause of
action accrues and the limitations period begins to run when the
plaintiff can reasonably be held to have knowledge of the injury
or disease....
Though the cause of the injury and the causative
relationship between the injury and the injurious act or product
may also be ascertainable on this date, these facts are not
applicable under § 15-1-49(2)..."); Barnes v. Koppers, Inc., 534
F.3d 357 (5th Cir. 2008) (stating that "[u]nder § 15-1-49, a cause
of action accrues when the plaintiff has knowledge of the injury,
not knowledge of the injury and its cause"); Bryant v. Wyeth, 816
F. Supp. 2d 329, 334 (S.D. Miss. 2011), aff'd, 2012 WL 3854550, 1
(5th Cir. Sept. 5, 2012) (holding that under § 15-1-49(2), a cause
of action accrues "when the plaintiff has knowledge of the injury,
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not knowledge of the injury and its cause"); Hewitt v. Wyeth, No.
5:03CV333TSL-MTP (S.D. Miss. July 7, 2011) (same).
In fact,
similar to this case, Bryant and Hewitt involved claims based on
allegations that a manufacturer’s HRT product(s) caused the
plaintiffs' breast cancers.
This court concluded that under
§ 15-1-49(2), the plaintiffs' claims for recovery based on the
allegation that their cancers were caused by the defendant’s HRT
medications were time-barred since the plaintiffs filed their
lawsuits more than three years after their respective diagnoses
with breast cancer, notwithstanding allegations that they neither
knew nor (according to their allegations) reasonably should (or
could) have known that the defendant’s HRT drugs they had taken
had caused their cancers.
For the reasons set forth in Bryant and
Hewitt, and in all of the cited authorities, the court rejects
plaintiff's argument herein that her claims accrued not when she
learned that she had breast cancer but rather later, in July 2002,
when she claims she first learned, or reasonably could have
learned of the causal link between Provera and breast cancer.
The court thus concludes that all of plaintiff's claims
accrued on January 6, 2000, when she was diagnosed with breast
cancer.3
Plaintiff did not bring her claims within three years
3
Plaintiff submits that even if her other claims are held
to have accrued when she was diagnosed with breast cancer, her
“fraud-based claims” did not accrue until, at the earliest, in
July 2002, upon publication of the WHI study results, since that
is the first time she knew, or could have known, of the link
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of the date of her diagnosis.
Nevertheless, she submits that her
claims are timely because defendants’ fraudulent concealment
tolled the running of the limitations period.
Mississippi Code
Annotated § 15-1-67 provides tolling for fraudulent concealment:
If a person liable to any personal action shall
fraudulently conceal the cause of action from the
knowledge of the person entitled thereto, the cause of
action shall be deemed to have first accrued at, and not
before, the time at which such fraud shall be, or with
between HRT drugs and breast cancer. However, the court is not
persuaded that a different accrual rule applies to her fraud
claims.
The Mississippi Supreme Court has consistently held that a
cause of action accrues, and the statute of limitations “begins to
run when all the elements of a tort, or cause of action, are
present.” Weathers v. Metro. Life Ins. Co., 14 So. 3d 688, 692
(Miss. 2009) (quoting Caves v. Yarbrough, 991 So. 2d 142, 147
(Miss. 2008)). This is consistent with the Mississippi Supreme
Court’s more specific holding that a cause of action for fraud
accrues “upon the completion of the sale induced by such false
representation, or upon the consummation of the fraud.” Dunn v.
Dent, 169 Miss. 574, 153 So. 798 (1934). The elements of a cause
of action for fraud are “(1) a representation, (2) its falsity,
(3) its materiality, (4) the speaker's knowledge of its falsity or
ignorance of its truth, (5) his intent that it should be acted on
by the hearer and in the manner reasonably contemplated, (6) the
hearer's ignorance of its falsity, (7) his reliance on its truth;
(8) his right to rely thereon, and (9) his consequent and
proximate injury.” Trim v. Trim, 33 So. 3d 471, 478 (Miss. 2010)
(citation omitted). Once plaintiff developed breast cancer, all
of the elements of her fraud claim were present. However, as hers
was a latent injury, her cause of action was subject to the latent
injury discovery rule of § 15-1-49(2), pursuant to which her cause
of action did not accrue until she discovered the injury, i.e.,
upon her breast cancer diagnosis. There is no statutory authority
for application of a fraud discovery rule or for excepting fraud
claims from the latent injury discovery rule of § 15-1-49(2). The
single case plaintiff cites for a different fraud accrual rule
plainly does not support her suggestion that fraud claims are
subject to a discovery rule (other than the latent injury
discovery rule when the fraud results in a latent injury).
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reasonable diligence might have been, first known or
discovered.
Miss. Code Ann. § 15–1–67.
"To establish fraudulent concealment,
plaintiff must demonstrate (1) that defendants acted affirmatively
to conceal the fraud; and (2) that plaintiffs could not have
discovered the alleged fraud with the exercise of due diligence."
Liddell v. First Family Financial Services, Inc., 146 Fed. Appx.
748, 750, 2005 WL 2044555, 1 (5th Cir. 2005) (quoting Stephens v.
Equitable Life Assurance Soc'y, 850 So. 2d 78, 82 (Miss. 2003)).
Plaintiff argues that fraudulent concealment tolling applies in
this case because “[d]efendants took active steps over decades,
both before her injury and subsequent to it, to fraudulently
conceal the risks from Plaintiff, thereby preventing her from
discovering her claim before the expiration of the three-year
statute of limitations.”
However, in the face of defendants’
motion, plaintiff offers only allegations and argument; she offers
no evidence of any acts of fraudulent concealment by the defendant
manufacturers of Provera.
It follows that her complaint, filed
more than three years after her claims accrued, is untimely and
should be dismissed.4
4
Plaintiff’s argument that summary judgment is premature
in view of the fact that case-specific discovery is incomplete is
not well taken. Completion of discovery is not a prerequisite to
summary judgment, and plaintiff has not even purported to make the
showing required by Federal Rule of Civil Procedure 54(d).
The court also rejects plaintiff’s contention that a
determination of defendants’ motion should be deferred until a
ruling on a motion to consolidate and transfer a related case
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Based on the foregoing, it is ordered that defendants’ motion
for summary judgment is granted.
A separate judgment will be entered in accordance with Rule
58 of the Federal Rules of Civil Procedure.
SO ORDERED this 25th day of October, 2012.
/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE
pending in Minnesota, Linton v. Abbott Laboratories Inc., USDC MN
- 0:08-cv-03796.
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