Welsh v. Pfizer, Inc. et al
Filing
39
CORRECTED Memorandum Opinion and Order granting 21 MOTION for Summary Judgment of defendant Wyeth, LLC, as set out herein. A separate judgment will be entered. (*corrects Document 38 to change division from 'WESTERN' to 'HATTIESBURG'). Signed by District Judge Tom S. Lee on 12/21/12 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
ELAINE G. WELSH
PLAINTIFF
VS.
CIVIL ACTION NO. 2:10CV40TSL-MTP
PFIZER, INC., WYETH, LLC
AND JOHN DOES 1-10
DEFENDANT
CORRECTED
MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of defendant
Wyeth, LLC for summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure on the basis of the statute of
limitations.
Plaintiff Elaine G. Welsh has responded to the
motion and the court, having considered the memoranda of
authorities, together with attachments, submitted by the parties,
concludes that the motion should be granted.
Plaintiff Elaine Welsh took various hormone replacement
therapy (HRT) medications to relieve menopausal symptoms,
including the Wyeth-manufactured Prempro, from 1991 until her
diagnosis with breast cancer on April 28, 2000.1
On April 21,
2004, nearly four years after her breast cancer diagnosis,2 Ms.
1
Ms. Welsh took Prempro for a period of approximately
fourteen months during 1996 and 1997. Wyeth notes in its motion
that it also manufactured Premarin, another HRT medication, which
Ms. Welsh took for several months in 1995.
2
Ms. Welsh had a successful surgery for the breast
cancer, and has remained free of breast cancer since her surgery.
Welsh filed the present lawsuit alleging her breast cancer was
caused by Prempro.3
Ms. Welsh has asserted products liability
claims (including negligence, strict liability and breach of
warranty), as well as claims for negligent and fraudulent
misrepresentations, based on allegations that Wyeth knew or should
have known that Prempro caused breast cancer and yet concealed
and/or affirmatively misrepresented the risks posed by the drug.
Wyeth has moved for summary judgment, contending that plaintiff’s
claims are barred by the three-year statute of limitations in
Mississippi Code Annotated § 15-1-49.
The parties agree that the applicable statute of limitations
for all of the claims asserted by plaintiff is the general threeyear statute of limitations set forth in Mississippi Code
Annotated § 15-1-49.
See § 15-1-49(1) (“All actions for which no
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 centers on the when the limitations
3
In addition to Wyeth, plaintiff has named as a defendant
Pfizer, Inc., apparently on the basis that Wyeth is a wholly-owned
subsidiary of Pfizer, and that Pfizer has assumed responsibility
for all Wyeth’s obligations. In its motion, Wyeth asserts that
Pfizer should be dismissed along with Wyeth on the basis fo the
statute of limitations having expired. As plaintiff acknowledges
in her response that Pfizer is sued herein on the basis that it
controls Wyeth LLC and is responsible for all its obligations, it
follows that if Wyeth is entitled to dismissal on statute of
limitations grounds, then so, too, is Pfizer.
2
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
Wyeth argues that 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
asserts she was unaware of her cause of action until sometime
after July 2002, when published reports of the results of a
Women’s Health Initiative (WHI) study first linked HRT drugs to
breast cancer.
She contends it was then that she first knew or
should (or could) have known that there was a causal link between
HRT drugs and breast cancer and thus that this was the first date
on which she knew or should have known that she had a “legally
recognizable injury.”4
4
The court acknowledges plaintiff’s argument that Wyeth
waived the statute of limitations defense by failing to timely
pursue it. The court rejected this same argument in Bryant v.
Wyeth, Inc., where it held there was no waiver because Wyeth had
raised the defense at a “pragmatically sufficient time,” so that
the plaintiff was not prejudiced in her ability to respond. 816
F. Supp. 2d 329, 333 (S.D. Miss. 2011) (citations omitted).
3
However, the argument that a cause of action involving a
latent injury does not accrue under § 15-1-49(2) until the wouldbe plaintiff discovers or reasonably should have discovered both
the injury and the cause of her injury has been repeatedly
rejected by the Mississippi Supreme Court, the Fifth Circuit and
this court.
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
4
F. Supp. 2d 329 (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,
not knowledge of the injury and its cause”); Hewitt v. Wyeth, No.
5:03CV333TSL-MTP (S.D. Miss. July 7, 2011) (same).
In fact, just
like this case, Bryant and Hewitt involved claims against Wyeth
based on allegations that its 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 Wyeth-manufactured
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 Wyeth 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 learned, or reasonably could have learned of
the causal link between Wyeth’s HRT products and breast cancer.
The court thus concludes that all of plaintiff’s claims
accrued on April 28, 2000, the date she was diagnosed with breast
cancer.
Plaintiff did not bring her claims within the three-year
5
limitations period.
Nevertheless, plaintiff submits that her
claims are timely because Wyeth’s 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
reasonable diligence might have been, first known or
discovered.
Miss. Code Ann. § 15–1–67.
“To establish fraudulent concealment,
plaintiff must demonstrate (1) that defendant[] acted
affirmatively to conceal the fraud; and (2) that plaintiff[] could
not have discovered the alleged fraud with the exercise of due
diligence.”
Liddell v. First Family Financial Servs., 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 Wyeth undertook affirmative
acts to conceal the fact that Prempro causes breast cancer.
Bryant, the court explained that
[t]he requirement of proof of an affirmative act refers
not to proof of the act that gives rise to the claim but
rather to a subsequent affirmative act of concealment.
See Liddell v. First Family Financial Servs., Inc., 146
Fed. Appx. 748, 751, 2005 WL 2044555, 2 (5th Cir. 2005)
(highlighting that part of Mississippi fraudulent
concealment doctrine requiring that affirmative acts of
concealment must occur “after the transactions at
issue”); Ross v. Citifinancial, Inc., 344 F.3d 458, 464
(5th Cir. 2003) (“Mississippi law is unambiguous:
6
In
Plaintiffs must prove a subsequent affirmative act of
fraudulent concealment to toll the limitations.”).
Bryant, 816 F. Supp. 2d at 335.
Here, plaintiff has offered no
evidence of any subsequent affirmative act of concealment and has
therefore failed to support her claim of fraudulent concealment.
Since there is no proof of fraudulent concealment, the running of
the statute of limitations on plaintiff's causes of action was not
tolled.5
Accordingly, based on the foregoing, it is ordered that
Wyeth’s 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 21st day of December, 2012.
/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE
5
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 purported to make the
showing required by Federal Rule of Civil Procedure 56(d).
7
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