Hull et al v. Wyeth et al
***THIS DOCUMENT REPLACES 20 (which was entered with no signature) ***Memorandum Opinion and Order granting 13 MOTION for Summary Judgment on Statute of Limitations as to Upjohn and Greenstone, but denying as to Wyeth. Signed by District Judge Tom S. Lee on 10/11/12 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 3:05CV177TSL-MTP
WYETH; WYETH PHARMACEUTICALS INC.;
PFIZER, INC.; PFIZER, INC.;
PHARMACIA & UPJOHN COMPANY;
PHARMACIA CORPORATION AND
MEMORANDUM OPINION AND ORDER
Defendants Wyeth, Wyeth Pharmaceuticals Inc. (collectively
Wyeth), Pharmacia & Upjohn Company (a/k/a Pharmacia & Upjohn,
Inc.) and Pfizer, Inc. (collectively Upjohn), and Greenstone Ltd.
have moved pursuant to Federal Rule of Civil Procedure 56 for
summary judgment on the basis of the statute of limitations.
Plaintiff Barbara Hull has responded in opposition 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 as to Upjohn and Greenstone, but
denied as to Wyeth.
Plaintiff Barbara Hull alleges she took Premarin, Provera and
Prempro, hormone replacement therapy (HRT) medications, to relieve
menopausal symptoms from 1993 until her diagnosis with breast
cancer in August 2000.1
On March 17, 2005, more than four years
Ms. Hull had a successful surgery for the cancer,
followed by radiation treatments and chemotherapy, and has
remained free of breast cancer since her treatment.
after her breast cancer diagnosis, Ms. Hull filed the present
lawsuit alleging her breast cancer was caused by the HRT drugs
manufactured by defendants.2
Ms. Hull has asserted products
In 1942, Wyeth introduced Premarin, a prescription
product containing conjugated equine estrogen intended to replace
the estrogen naturally decreasing in women during menopause and
reduce the associated symptoms. In re Prempro Products Liability
Litigation, 586 F.3d 547, 554 (8th Cir. 2009). In 1959, defendant
Upjohn Company launched Provera, a progestin product approved for
treatment of abnormal uterine bleeding. Id.
By the 1970s, studies showed a link between estrogen
replacement drugs such as Premarin and endometrial
cancer. It was later determined that prescribing
progestin along with estrogen reduced this risk.
Although the Food and Drug Administration (FDA) had not
approved the combination of estrogen and progestin for
treating menopausal symptoms, such combination hormone
therapy became the standard of care. Provera was often
lawfully prescribed for this off-label use in
conjunction with Premarin. In 1994, Wyeth became the
first pharmaceutical company to combine estrogen and
progestin into one package with the launch of Prempro.
In 1995, Prempro became the first pharmaceutical that
combined the two hormones into a single tablet. As of
2008, Premarin and Provera were the most common forms of
estrogen and progestin replacement drugs.
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 Premarin or Provera during the time plaintiff took
those medications, is not a successor-in-interest to any other
defendant 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.
While defendant Greenstone manufactures a generic
medroxyprogesterone acetate (MPA) (the base ingredient in
Provera), plaintiff does not appear to contend she took a generic
liability claims (including negligence and strict liability), and
claims for breach of express and implied warranties and negligent
and fraudulent misrepresentations, all based, in general, on
allegations that defendants knew or should/could have known that
their HRT medications 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 their
HRT medications, which proximately caused plaintiff’s breast
Defendants have moved for summary judgment, contending
plaintiff’s claims are barred by the three-year statute of
limitations in Mississippi Code Annotated § 15-1-49.3
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
Their dispute – or their first dispute – centers on
This case was originally filed in state court and was
removed by defendants 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 27, 2012, when it was
remanded to this court. Defendants filed their motion for summary
judgment motion promptly after remand from the MDL court.
when the limitations period commenced.
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 Wyeth argues 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.4
Plaintiff submits 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
is the first date on which she knew or should have known that she
had a “legally recognizable injury.”
In July 2002, the National Institutes of Health
published the results of its Women's Health Initiative (WHI)
study, linking the use of hormone replacement therapy to breast
cancer. In re Prempro Products Liability Litigation, 586 F.3d
547, 554 (8th Cir. 2009). Plaintiff alleges that defendants knew
or should have known of the link between their HRT drugs and
breast cancer prior to publication of the WHI study results and
yet concealed this information and misrepresented the drugs were
safe and effective not only for treatment of menopausal symptoms
but for other uses as well.
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
Mississippi Supreme Court, and by the Fifth Circuit and this court
applying the Mississippi Supreme Court’s interpretation of the
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
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,
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 first learned, or reasonably could have
learned of the causal link between defendants’ HRT products and
The court acknowledges, but rejects as patently without
merit plaintiff’s argument that the Mississippi Supreme Court's
opinion in Angle v. Koppers, Inc., 42 So. 3d 1 (Miss. 2010),
announced a new interpretation of § 15-1-49(2) that should not be
given “retroactive” effect. As defendants correctly point out,
Angle merely applied the plain language of § 15-1-49 in a way that
was consistent with earlier opinions discussed in that opinion.
See 42 So. 3d at 5-7.
The court thus concludes that all of plaintiff’s claims
accrued in August 2000, when she was diagnosed with breast
Plaintiff did not bring her claims within three years of
the date of her diagnosis.
Nevertheless, she submits that her
claims are timely because defendants' fraudulent concealment
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
between HRT drugs and breast cancer. However, the court is not
persuaded that a different accrual rule applies to her fraud
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).
tolled the running of the limitations period.7
Annotated § 15-1-67 provides tolling for fraudulent concealment:
Plaintiff also urges, presumably as an alternative to
tolling based on fraudulent concealment, that her claim was timely
(even without proof of fraudulent concealment) as the statute of
limitations was tolled by the filing and during the pendency of
two nationwide class actions against Wyeth of which she was a
putative member. Specifically, on July 15, 2002, a national class
action complaint in Lewers v. Wyeth, No. 02–4970 (N.D. Ill.), was
filed in the Northern District of Illinois alleging damages
arising from the use of Prempro. The case was transferred to the
Multi–District Litigation docket in the Eastern District of
Arkansas, along with all other pending HRT cases, and was
voluntarily dismissed on May 21, 2003. A second putative
nationwide class action, Michael v. Wyeth Pharmaceuticals, Inc.,
No. 2:04-cv-00435 (S.D. W.Va.), was filed May 6, 2004, for
injuries allegedly caused by the defendants’ HRT products. That
case was also transferred to the Eastern District of Arkansas,
where the class allegations of the complaint were dismissed on
October 20, 2005.
However, while the filing of a class action suit tolls the
statute of limitations for all the members of the class until
class certification is denied or the suit is dismissed without
prejudice, see American Pipe and Construction Co. v. Utah, 414
U.S. 538, 554, 94 S. Ct. 756, 38 L. Ed. 2d 713 (1974); Crown, Cork
& Seal Co. v. Parker, 462 U.S. 345, 350, 352-55, 103 S. Ct. 2392,
76 L. Ed. 2d 628 (1983), such tolling is recognized only for the
first class certification petition and not for any subsequent
petitions involving the same class. See Lanzas v. American
Tobacco Co., Inc., 46 Fed. Appx. 732, 2002 WL 1973817, 3 (5th Cir.
2002); Salazar-Calderon, 765 F.2d 1334, 1351 (5th Cir. 1985)
(applying a no-“piggyback” rule that precludes class members from
availing themselves of the Crown rule to file successive class
actions involving members of the same putative class to “toll the
statute of limitations indefinitely” for the purpose of later
filing individual claims and indicating that “it has repeatedly
been noted that the tolling rule [in the context of class actions]
is a generous one, inviting abuse,” and that “to construe the
rule” to allow for successive class action tolling “presents just
such dangers”) (internal quotation and citations omitted). Thus,
even assuming the statute of limitations on plaintiff’s claims was
tolled during the pendency of Lewers, it plainly was not tolled
during the pendency of the later-filed Michael case, and even
excluding the 310 days Lewers was pending from the limitations
calculation, plaintiff’s claim was still untimely (unless she can
establish 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
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 submits that fraudulent concealment tolling applies in
this case because defendants undertook affirmative acts (both
preceding and following her breast cancer diagnosis) to conceal
from plaintiff and her physicians that HRT drugs can cause breast
cancer, and because she did not and could not have discovered that
defendants’ HRT drugs caused her breast cancer until the results
of the Women’s Health Initiative study were published in July 2002
reporting an increased risk of breast cancer from defendants’ HRT
Addressing the first element of proof, this court in Bryant
explained as follows:
The 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:
Plaintiffs must prove a subsequent affirmative act of
fraudulent concealment to toll the limitations.”).
Bryant, 816 F. Supp. 2d at 335.
Thus, as defendants correctly
point out, plaintiff cannot sustain her burden to prove fraudulent
concealment with proof of alleged acts of alleged concealment that
occurred prior to her diagnosis with breast cancer.
plaintiff purports to have presented evidence demonstrating such
prior affirmative acts of concealment, this evidence is immaterial
in the fraudulent concealment inquiry.
However, plaintiff has also offered evidence of what she
submits are subsequent affirmative acts of concealment by Wyeth
which prevented her from discovering her claims, including
disseminating “Dear Doctor” letters to physicians in 2000 which
she contends fraudulently and deliberately misled physicians about
the level of breast cancer risk from HRT drugs and fraudulently
represented that the drugs had unproven and off-label heart
benefits, and “ghostwriting” numerous medical articles which
downplayed the breast cancer risk and encouraged use of HRT
medications for unproven heart and brain benefits.8
Defendants purport to interpret plaintiff’s response as
asserting fraudulent concealment as a basis for tolling the
statute of limitations only as to her fraud and misrepresentation
claims, noting, as they do, that “Ms. Hull has not argued her
negligence/strict products liability claims were fraudulently
respond that these purported acts of concealment cannot be a basis
for finding fraudulent concealment to toll the statute of
limitations since these same alleged acts of concealment are part
of the basis for plaintiff’s fraud cause of action.
defendants have argued, and as the court has concluded supra,
plaintiff’s cause of action for fraud accrued at the time she was
diagnosed with breast cancer.
That is the date on which she
suffered consequent and proximate injury from defendants’ alleged
Acts of concealment which post-dated her injury are not a
basis of her fraud cause of action but rather of her assertion of
fraudulent concealment as a basis for tolling the statute of
Contrary to defendants’ urging, that fact
distinguishes this case from Bryant.
In Bryant, the plaintiff
alleged that Wyeth’s labeling/package insert “does nothing to
illuminate the problems of combined estrogen and progestin hormone
therapy, even though Wyeth had known for well over a decade that
physicians had been prescribing the two strictly in combination
for women with intact uteri.”
Bryant, 816 F. Supp. 2d 335-36.
concealed, nor could she prove it in light of the clear law ...
regarding accrual of those types of causes of actions.”
The court acknowledges that plaintiff’s memorandum is
somewhat murky on this point; but ultimately, it seems reasonably
clear that plaintiff is asserting that defendants’ fraudulent
concealment tolled the statute of limitations as to all her
claims, not just as to her fraud-based claims. Further, the court
fails to perceive the basis of defendants’ assertion that
plaintiff is somehow less able to establish fraudulent concealment
relative to her products liability claims than she is relative to
her fraud-based claims.
The plaintiff thus concluded that Wyeth had “concealed the true
risks of breast cancer from the entire medical and scientific
community, and they were certainly concealed from a layman like
Id. at 336.
The court found that “[i]nadequacies
in Wyeth’s labeling which ultimately form the basis of plaintiff’s
claims for relief do not constitute subsequent affirmative acts of
The court specifically noted that Mrs. Bryant
“ha[d] not identified any subsequent affirmative act(s) of
concealment as required by § 15-1-67.”
Id. at 336, n.5.
In support of her claim of fraudulent concealment in this
cause, plaintiff herein, in contrast to Mrs. Bryant, has not
alleged merely that the product drug labeling was inadequate or
deceptive or fraudulent; she has alleged that after she was
diagnosed with breast cancer, Wyeth undertook actions specifically
designed to conceal known (and/or reasonably knowable) risks of
breast cancer from the use of HRT drugs, so that plaintiff was
unable to discover her causes of action herein.
In the court’s
opinion, her evidence is sufficient to create an issue for trial
on the first element of fraudulent concealment as it relates to
However, plaintiff has not identified any subsequent
affirmative acts of concealment by Upjohn or by defendant
Greenstone nor suggested any basis on which Wyeth’s alleged acts
of fraudulent concealment might be properly attributed to the
Accordingly, the court concludes that Upjohn
and Greenstone are entitled to summary judgment.
As for the second element of proof on her assertion of
fraudulent concealment by Wyeth, Wyeth contends plaintiff cannot
obtain the benefit of tolling through fraudulent concealment
because she cannot show that she was diligent in trying to
discover her substantive claims.
More particularly, it contends
that plaintiff cannot be found to have been diligent because she
did not do anything at all to attempt to discover her claims prior
to the announcement of the WHI study results.
Indeed, it does
appear that from the time of her diagnosis with breast cancer
until the time she learned of the WHI study results in 2002,
plaintiff did not undertake any investigation into the cause of
her breast cancer.
In the court’s opinion, however, that does not
necessarily foreclose her reliance on fraudulent concealment as a
basis for tolling the statute of limitations.
The Mississippi Supreme Court has held that “a plaintiff
cannot satisfy the due diligence requirement if he had information
regarding the claim and failed to take action before the statute
of limitations expired.”
Trustmark Nat. Bank v. Meador, 81 So. 3d
1112, 1120 (Miss. 2012) (emphasis added) (citing Andrus v. Ellis,
887 So. 2d 175, 181 (Miss. 2004)).
“The proper test is ‘whether a
reasonable person similarly situated would have discovered
Whitaker v. Limeco Corp., 32 So. 3d 429, 436
(Miss. 2010) (quoting Andrus, 887 So. 2d at 180).
Andrus, 887 So. 2d at 181 (observing that once informed she had no
health insurance, diligence required that plaintiff either “object
or inquire as to why her understanding of the insurance contract
fundamentally differs from Commercial Credit's understanding”).
In the related context of the discovery rule, the court in
Sundbeck v. Sundbeck, No. 1:10CV23–A–D, 2011 WL 5006430 (N.D.
Miss. Oct. 20, 2011), described reasonable diligence as requiring
investigation when one has notice, or should have notice that she
may have a claim and that inquiry is therefore warranted.
The intent of the discovery rule is to protect potential
plaintiffs who cannot, through reasonable diligence,
discover injuries done to them. Wayne General Hosp. v.
Hayes, 868 So. 2d 997, 1001 (Miss. 2004). Mississippi
courts have consistently held that a plaintiff seeking
to avail himself of the tolling provided by the
discovery rule must show that he “exercise[d] reasonable
diligence in determining whether an injury suffered is
actionable.” See, e.g., Blailock ex rel. Blailock v.
Hubbs, 2005 WL 1385214, at *2 (Miss. 2005); Wright v.
Quesnel, 876 So. 2d 362, 366 (Miss. 2004) (“But to
benefit from the discovery rule, a plaintiff must be
reasonably diligent in investigating her injuries.”);
Punzo v. Jackson County, 861 So. 2d 340, 349 (Miss.
2003) (“To claim benefit of the discovery rule, a
plaintiff must be reasonably diligent in investigating
the circumstances surrounding the injury.”).
Elaborating on this requirement of reasonable diligence,
the Fifth Circuit in First Trust National Association v.
First National Bank of Commerce, stated:
The would-be plaintiff need not have become
absolutely certain that he had a cause of
action; he need merely be on notice-or should
be-that he should carefully investigate the
materials that suggest that a cause probably
or potentially exists. Neither need the
plaintiff know with precision each detail of
breach, causation, and damages, but merely
enough to make a plain statement of the case
backed by evidence sufficient to survive a
summary judgment motion.
The [Mississippi Supreme Court] [has]
The plaintiffs need not have actual knowledge of
the facts before the duty of due diligence arises;
rather, knowledge of certain facts which are
“calculated to excite inquiry” give rise to the
duty to inquire. The statute of limitations begins
to run once plaintiffs are on inquiry that a
potential claim exists.
220 F.3d 331, 337 (5th Cir. 2000)(citing Smith v.
Sanders, 485 So. 2d 1051, 1052 (Miss. 1986)).
Sundbeck, 2011 WL 5006430, at 5.
In Simon v. Wyeth Pharmaceuticals, Inc., 989 A.2d 356 (Pa.
Super. Ct. 2009), the Pennsylvania Superior Court discussed the
reasonable diligence component of that state’s discovery rule in
the context of an HRT case against Wyeth, stating:
If the injured party could not ascertain when he was
injured and by what cause within the limitations period,
"despite the exercise of reasonable diligence," then the
discovery rule is appropriate. Pocono International
Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 468
A.2d 468, 471 (1983). The test is objective but takes
into account individual capacities and society's
expectations of "attention, knowledge intelligence and
judgment" for citizens to protect their own interests.
[Fine v. Checcio, D.D.S., 582 Pa. 253, 870 A.2d 850, 858
(2005)]. The party who invokes the discovery rule has
the burden of proving its applicability by establishing
he acted with reasonable diligence in determining the
fact and cause of his injury but was unable to ascertain
it. Weik v. Estate of Brown, 794 A.2d 907, 909 (Pa.
Super. 2005) (citing Fine, supra at 858).
This determination is a factual one as to whether the
party, despite the exercise of reasonable diligence, was
unaware of his injury and unable to determine its cause.
Id. Where the rule's application involves a factual
determination regarding whether the plaintiff exercised
due diligence in discovering his injury, the jury must
decide whether the rule applies. Crouse v. Cyclops
Industries, 560 Pa. 394, 745 A.2d 606 (2000).
989 A.2d at 365-66.
The court in Simon concluded there was
sufficient evidence for the jury to find that until the WHI study
was published in July 2002, the plaintiff had no reason to suspect
a link between her use of HRT and breast cancer, and thus
implicitly, that there was sufficient evidence to support a
finding that in making no investigation, she exercised reasonable
diligence under the circumstances.
Id. at 366.
elaborated on these principles in Coleman v. Wyeth
Pharmaceuticals, Inc., 6 A.3d 502 (Pa. Super. Ct. 2010), stating,
[A]t some point, a plaintiff should become sufficiently
aware of his injury and that it was caused by another to
trigger or "awaken inquiry." Hayward v. Medical Center
of Beaver County, 530 Pa. 320, 608 A.2d 1040, 1043
(1992). Knowledge of an injury alone is not sufficient
to trigger such inquiry. One must have some reason to
suspect that the injury was caused by a third party to
impose a duty to investigate further. Where the injury
is one that may result from nontortious conduct, such as
a disease, that point may be difficult to discern
without resolving factual issues. Subjective
differences among persons and the situations in which
they find themselves are relevant in making that
6 A.3d at 510-11.
In the case at bar, the proper inquiry is not merely whether
the plaintiff investigated to determine whether she had a
potential claim against a third party once she was diagnosed with
breast cancer, but rather whether what steps, if any, a reasonable
person in her position would have taken to investigate; or put
another way, whether in failing to make such an investigation, she
failed to exercise the level of diligence that a reasonable person
would employ under the facts of her case.
at 436; Andrus, 887 So. 2d at 180.
See Whitaker, 32 So. 3d
If she had information
regarding a potential claim and yet failed to take action before
the statute of limitations expired, she could not establish that
she acted with reasonable diligence; but nothing suggests that she
had any such information.
In the court’s opinion, under the
circumstances of this case, a genuine issue of material fact
exists on the issue of the diligence component of the plaintiff’s
fraudulent concealment defense to the statute of limitations.
Based on all of the foregoing, the court concludes that
Upjohn is entitled to summary judgment on limitations grounds as
plaintiff filed suit more than three years after her claims
accrued and as she cannot establish fraudulent concealment by
Upjohn or Greenstone.
The court further concludes that genuine
issues of material fact preclude a determination as a matter of
law that the limitations period had expired on her claims against
Wyeth before she filed suit.
Accordingly, it is ordered that
defendants’ motion for summary judgment is granted as to Upjohn
and Greenstone but denied as to Wyeth.
SO ORDERED this 11th
day of October, 2012.
/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE
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