Dyan R Moore et al v. Eli Lilly and Company et al
Filing
29
MEMORANDUM, ORDER and JUDGMENT granting 11 Motion for Summary Judgment: Dyan Moore's action is barred by res judicata. The statute of limitations bars Larry Moore's action. The arguments made by plaintiffs at a hearing conducted on April 19,2012 and in a letter of that same day do not require the court to conclude differently. As noted in Part II.C, supra, the claims of the other plaintiffs originally named in this action have previously been dismissed without prejudice. The case is dismissed as against all defendants. No costs or disbursements. Ordered by Senior Judge Jack B. Weinstein, on 4/19/2012. Copies mailed to plaintiffs by Chambers. (Barrett, C)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM, ORDER,
AND JUDGMENT
In re: ZYPREXA PRODUCTS LIABILITY
LITIGATION
04-MD-1596
DYAN R. MOORE, LARRY B. MOORE,
LASHAUNTA B. MOORE, MALIKA M.
MOORE, individually and as successors in
interest to ZETIIE MARSHALL,
II-CV-5552
Plaintiffs,
- against-
II"'fLfED
ELI LILLY & COMPANY, JOHN DOES 110,
U:l.
*
Defendants.
cir~fk~~Klocu-FF/CE
RTED.N Y.
APR232012 ...-
BROOKLYN OFFICE
Appearances:
For the Plaintiffs:
Dyan R. Moore, pro se
Los Angeles, CA
Larry B. Moore, pro se
Coalinga, CA
For the Defendants:
Adam B. Michaels
Pepper Hamilton LLP
New York, NY
David L. Foberg
Pepper Hamilton LLP
Philadelphia, PA
1
JACK B.WEINSTEIN, Senior United States District Judge:
Table of Contents
I.
Introduction ....................................... .............................................................................................................. 2
1I.
Facts ................................................................................................................................................................ 3
A.
Contents and Use of Zyprexa .......................................................................................................................... .4
B.
Labeling and Warnings to Patients and Medical Professionals ....................................................................... .4
J.
2.
FDA March 2007 Letter ...... ...... .......................................... ................................................................. .... .... 9
4.
III.
Consensus Statement of American Diabetes Association and Other Learned Groups ................................ 7
3.
c.
FDA Labeling and the "Dear Doctor Letter" .................. ............................................ ............................ .... .4
Findings on Medical Community's Knowledge ofZyprexa's Risks ...................................... .... .... ............. 9
Zettie Marshall's Zyprexa Use and Procedural History ....................................... ................................... ....... II
Law ...................................................... ......................................................................................................... 13
A.
Summary Judgment Standard ......................................................................................................................... 13
B.
C.
Choice of Law ... ............................................................................................................................................. 14
D.
California Law-Statute of Limitations ..................................................................... .......... .... .. .................... 15
California Law-Res Judicata .................. ...................................................................... ... .. .. ......................... 14
IV.
Application of Law to Facts .................................................................................... ....... ...... ......................... 16
V.
Conclusion .................................................................................................................................................... 16
I.
Introduction
Defendant Eli Lilly & Company ("Lilly") moves to dismiss the complaint of plaintiffs
Dyan Moore and Larry Moore (collectively, "Plaintiffs"). Plaintiffs commenced this action
against Lilly in a California state court in November 2010. Since the parties' moving papers rely
on and make reference to matters outside of the pleadings, the court treated Lilly's motion as one
for summary judgment, with the parties' consent. See Fed. R. Civ. P. l2(d); Roth v. Jennings,
489 F.3d 499,509 (2d Cir. 2007); Global Network Comms. v. City o/New York, 458 F.3d 150,
154·55 (2d Cir. 2006); see also March 20, 2012 Hearing Transcript.
2
The present action is essentially a wrongful death claim. Plaintiff Dyan Moore is the
daughter of Zettie Marshall. Plaintiff Larry B. Moore is the former brother-in-law of Dyan
Moore. Plaintiffs contend that Zyprexa, a drug manufactured by Lilly, caused Ms. Marshall's
death in December 2005.
For the reasons indicated below, summary judgment against Plaintiffs is granted.
II.
Facts
The present case is part of a massive and highly complex multi district litigation that has
included claims by individual Zyprexa users, state attorneys general, third-party payors, and
other entities alleging physical or financial injury. Some 30,000 cases have been brought against
Lilly by individual plaintiffs suffering from serious psychiatric problems who were treated with
Zyprexa. These individuals plaintiffs principally allege that Zyprexa caused deleterious side
effects, including excessive weight gain, hyperglycemia, and diabetes; that Lilly misled them and
their physicians about the likelihood of these side effects; and that, had they or their attending
physicians been aware of the risks, they would not have taken Zyprexa. The court has previously
detailed the procedural history and factual background of this multi district litigation. See, e.g.,
Mississippi v. Eli Lilly & Co. (In re Zyprexa Prods. Dab. Litig.), 671 F. Supp. 2d 397 (E.D.N.Y.
2009); Blume v. Eli Lilly & Co. (In re Zyprexa Prods. Dab. Litig.), Nos. 04-MD-1596, 06-CV-
2782,2009 WL 3596982 (E.D.N.Y. Oct. 20, 2009). See generally Amalea Smirniotopouios,
Note, Bad Medicine: Prescription Drugs, Preemption, and the Potential for a No-Fault Fix, 35
N.Y.D. Rev. L. & Soc. Change 793, 813-19 (2011) (describing similar mass drug litigation).
3
•.
~
A.
Contents and Use of Zyprexa
Zyprexa's active ingredient is olanzapine, one of a class of medications known as
"atypical" or "second generation" antipsychotics. It was approved for use in treating
schizophrenia and acute manic episodes associated with bipolar disorder by the United States
Food and Drug Administration ("FDA") in 1996. In 2004, the FDA also approved Zyprexa for
the treatment of bipolar disorder generally.
B.
Labeling and Warnings to Patients and Medical Professionals
1.
FDA Labeling and the "Dear Doctor Letter"
The original 1996 Zyprexa package insert accompanying the drug disclosed information
about possible side effects of administration of olanzapine based on clinical trials. The insert
provided, in part, the following information:
Adverse Events Occurring at an Incidence of 1% or More Among
Olanzapine-Treated Patients in Short-Term, Placebo-Controlled
Trials - - Table 1 enumerates the incidence, rounded to the nearest
percent, of treatment-emergent adverse events that occurred during
acute therapy (up to 6 weeks) of schizophrenia in 1% or more of
patients treated with olanzapine (doses ::0: 2.5 mg/day) where the
incidence in patients treated with olanzapine was greater than the
incidence in placebo-treated patients.
The prescriber should be aware that the figures in the tables
and tabulations cannot be used to predict the incidence of side
effects in the course of usual medical practice where patient
characteristics and other factors differ from those that prevailed in
the clinical trials. Similarly, the cited frequencies cannot be
compared with figures obtained from other clinical investigations
involving different treatments, uses, and investigators. The cited
figures, however, do provide the prescribing physician with some
basis for estimating the relative contribution of drug and nondrug
factors to the side effect incidence in the population studies.
Zyprexa Package Insert 11 (Oct. 1, 1996) (original emphasis).
4
Two tables in the insert provided the results of placebo-controlled clinical studies of
olanzapine-treated patients. The data indicates that, over a six-week administration of Zyprexa,
six percent of olanzapine-treated patients reported weight gain, while only one percent of the
placebo-treated patients reported weight gain. Id. at 12-16.
For several years, this information on the insert remained substantially the same insofar
as it provided physicians information on reported weight-gain-related adverse events. During
this period, the results of longer-term studies and clinical experience with Zyprexa and
competing drugs supporting weight gain, hyperglycemia, and diabetes became widely known.
See Part ILB.4, infra.
In May 2000, the FDA undertook an analysis of the incidence of diabetes and
hyperglycemia in patients using atypical antipsychotics. The director of the FDA's Division of
Neuropharmacological Drug Products requested additional safety information about Zyprexa
from Lilly. In its letter, the FDA cited post-marketing reports of diabetes-related adverse events
associated with Zyprexa use. In response, Lilly provided the FDA with clinical studies, data
analysis, and case report reviews. See In re Zyprexa Prods. Liab. Litig., 253 F.R.D, 69, 119
(E.D.N.Y.2008). There is disagreement about whether the information given by Lilly to the
FDA was complete and accurate.
On September 11, 2003, the FDA announced it would require a warning about risks of
hyperglycemia and diabetes mellitus and treating precautions to appear in the package insert of
all atypical antipsychotics, including Zyprexa. Designed for prescribing doctors, the label noted
that epidemiological studies and other information indicated that the relationship between the
drug and hyperglycemia and diabetes was not yet fully understood. It reads as follows:
5
WARNINGS
Hyperglycemia and Diabetes Mellitus
Hyperglycemia, in some cases extreme and associated with
ketoacidosis or hypersomolar coma or death has been reported in
patients treated with atypical antipsychotics including Zyprexa.
Assessment of the relationship between atypical antipsychotic use
and glucose abnormalities is complicated by the possibility of an
increased background risk of diabetes mellitus in patients with
schizophrenia and the increasing incidence of diabetes mellitus in
the general population. Given these confounders, the relationship
between atypical antipsychotic use and hyperglycemia-related
adverse events is not completely understood.
However,
epidemiological studies suggest an increased risk of treatmentemergent hyperglycemia-related adverse events in patients treated
with the atypical antipsychotics studied. Precise risk estimates for
hyperglycemia-related adverse events in patients treated with
atypical antipsychotics are not available .. ..
Patients with an established diagnosis of diabetes mellitus who are
started on atypical antipsychotics should be monitored regularly
for worsening of glucose control. Patients with risk factors for
diabetes mellitus (e.g., obesity, family history of diabetes) who are
starting treatment with atypical antipsychotics should undergo
fasting blood glucose testing at the beginning of treatment and
periodically during treatment. Any patient treated with atypical
antipsychotics should be monitored for symptoms of
hyperglycemia including polydipsia, polyuria, polyphagia, and
weakness. Patients who develop symptoms of hyperglycemia
. during treatment with atypical anti psychotics should undergo
fasting blood glucose testing....
Letter from Russell Katz, M.D., Dep't of Health & Human Servs., to Gregory T. Brophy, Ph.D.,
Eli Lilly & Co., Sept. II, 2003, at 1-2. The label did not mention weight gain or diabetes in the
"warning to patients" section.
Lilly added the FDA-required language to the Zyprexa label on September 16,
2003. See Zyprexa Package Insert (Sept. 16,2003). At the FDA's request, on March 1,2004, it
6
sent a "Dear Doctor" letter to physicians in the United States informing them of the 2003 label
change. See In re Zyprexa Prods. Liab. Litig., 253 F.R.D. at 134-36.
2.
Consensus Statement of American Diabetes Association and Other
Learned Groups
In November 2003, the American Diabetes Association, American Psychiatric
Association, American College of Clinical Endocrinologists, and the North American
Association for the Study of Obesity convened a consensus development conference (the "ADA
consensus conference") on the subject of the association between antipsychotic drugs and
diabetes. An eight-member panel heard presentations from fourteen experts drawn from the
fields of psychiatry, obesity, and diabetes, FDA representatives, and atypical antipsychotic drug
manufacturers. The panel reviewed the relevant peer-reviewed English language scientific
articles.
The ADA consensus conference concluded that Zyprexa and Clozaril posed an increased
risk of diabetes as compared to other atypical antipsychotic drugs. The consensus statement
produced by the conference declared that these relative risks as well as advantages of the drugs
for individual patients in a heterogeneous population "should ... influence drug choice." In part,
its report concluded:
There is considerable evidence, particularly in patients with
schizophrenia, that treatment with [atypical antipsychotics] can
cause a rapid increase in body weight in the first few months of
therapy that may not reach a plateau even after 1 year of treatment.
There is, however, considerable variability in weight gain among
the various [atypical anti psychotics ] .. ..
***
7
Clozapine [Clozaril] and olanzapine [Zyprexa] ... produce the
greatest weight gain.
***
Despite limitations in study design, the data consistently show an
increased risk for diabetes in patients treated with clozapine
[Clozaril] or olanzapine [Zyprexa] compared with patients not
receiving treatment with [first generation antipsychotics] or with
other [atypical anti psychotics]. The risk in patients taking
risperidone and quetiapine is less clear; some studies show an
increased risk for diabetes, while others do not. The two most
recently approved [atypical anti psychotics ], aripiprazole and
ziprasidone, have relatively limited epidemiological data, but
available clinical trial experience with these drugs has not shown
an increased risk for diabetes.
***
[T]he risks of obesity, diabetes, and dyslipidemia have
considerable clinical implications in this patient population and
should ... influence drug choice.
Even for those medications associated with an increased
risk of metabolic side effects, the benefit to specific patients could
outweigh the potential risks. For example, clozapine [Clozaril] has
unique benefits for treatment-refractory patients and those at
significant risk for suicidal behavior. Since treatment response in
many psychiatric conditions is heterogeneous and unpredictable,
physicians and patients can benefit from the availability of a broad
array of different therapeutic agents.
***
These three adverse conditions [obesity, diabetes, and
dyslipidemia] are closely linked, and their prevalence appears to
differ depending on the [atypical antipsychotic] used. Clozapine
[Clozaril] and olanzapine [Zyprexa] are associated with the
greatest weight gain and highest occurrence of diabetes and
dyslipidemia.
Risperidone and quetiapine appear to have
intermediate effects. Aripiprazole and ziprasidone are associated
with little or no significant weight gain, diabetes, or dyslipidemia,
although they have not been used as extensively as other agents.
8
The choice of [atypical antipsychotic] for a specific patient
depends on many factors. The likelihood of developing severe
metabolic disease should also be an important consideration.
American Diabetes Association, et al., Consensus Development Conference on Antipsychotic
Drugs and Obesity and Diabetes, 27 Diabetes Care 596, 596-97 (Feb. 2004)
3.
FDA March 2007 Letter
On March 27, 2007, the FDA raised new concerns about the adequacy of Zyprexa's
warning label in a letter to Lilly:
[Wle are concerned that the labeling is deficient with regard to
information about weight gain, hyperglycemia, and hyperlipidemia
that is associated with olanzapine [Zyprexa] use ....
Our overall goal is to improve labeling with regard to these
findings so that clinicians will be better informed on what the risks
are for their patients. They cannot make reasonable treatment
decisions until they have such information. We do not feel that
current labeling for ... Zyprexa provides sufficient information on
these risks, and we fully intend to insure that . . . labels are
enhanced with the best available information to characterize these
risks.
In re Zyprexa Prods. Liab. Litig., 253 F.R.D. at 141 (quoting Letter from Thomas Laughren,
,
FDA, to Robin Pitts Wojcieszek, Eli Lilly & Co., Mar. 27, 2007).
4.
Findings on Medical Community's Knowledge of Zyprexa's Risks
A universally applicable date from which the statute of limitations is to be considered to
run on an individual Zyprexa user's claim has not been determined. Numerous events represent
moments at which a patient, health care provider, institution, or the medical community at large
arguably discovered that the cause of an alleged injury may have been the administration of
Zyprexa. The evidence in this mass litigation, including medical records and the depositions of
numerous doctors, suggests that it was widely known and understood in the late 1990s among
9
treating and prescribing physicians that weight gain might follow the administration of Zyprexa.
The association between weight gain and heightened risk of diabetes was also broadly
recognized by that time.
Formal events bringing this information to the medical profession include the September
2003 Zyprexa label change and contemporaneous press release, the 2003 consensus statement of
the American Diabetes Association, and the March 2004 "Dear Doctor" letter distributed
nationwide to physicians by Lilly.
In its June 2007 memorandum, order, and judgment on four motions for summary
judgment in individual Zyprexa injury cases, this court found that, for purposes of these motions,
the March 1, 2004 "Dear Doctor" letter would be considered the latest possible date on which
members of the medical community knew or should have known about Zyprexa's obesity- and
diabetes-related risks to patient health. See Souther v. Eli Lilly & Co. (In re Zyprexa Prods.
Liab: Litig.), 489 F. Supp. 2d 230, 278 (E.D.N.Y. 2007). In Souther, applying the relevant
"learned intermediary" doctrine, it was determined that the claim of one of the plaintiffs was
barred by the statute of limitations:
Diabetes developed and Zyprexa was prescribed [to plaintiff
Cusella] years before the September 2003 label change. At least
from the date of [the} March 2004 Dear Doctor letter, the causal
connection between Zyprexa and diabetes was known to Dr.
Ganime, Cusella's treating physician. Since Lilly's duty to warn
ran to Dr. [Ganime] rather than Cusella, it becarne Dr. Ganime's
duty from that point onwards to disclose to Cusella that Zyprexa
might exacerbate his diabetes, and that it may have been the
impetus behind Cusella's insulin-dependancy in the first place.
Dr. Ganime's medical records and deposition testimony ...
show that Cusella was warned numerous times about the link
between Zyprexa and diabetes. While the pre-label change
warnings Dr. Ganime received from Lilly may not have been
adequate to absolve Lilly of liability to Cusella, those warnings
10
".
,
.'
Cusella received from Dr. Ganime following the label change
placed him on notice that use of Zyprexa might have worsened his
diabetes and caused him to become insulin-dependent.
Measured either against the date Cusella developed
diabetes-August 1999~r the latest possible date Dr. [GanimeJ
was aware of the potential causal connection between Zyprexa and
diabetes-March 2004-Pennsylvania's two year statute of
limitations had run on Cusella's claim before he filed this suit in
Aprilof2006.
Id (emphases added; citations to record omitted).
The March I, 2004 date represents the "latest possible date" prescribing physicians and,
in effect, their patients are deemed aware of the potential causal connection between Zyprexa
and diabetes and from which the statute of limitations may run as to any individual plaintiff.
Nevertheless, a fact-specific analysis is necessary for each case to determine when the plaintiffwhether independently or by operation of the learned intermediary doctrine-knew of the
potential causal connection between Zyprexa and adverse health effects. The facts in many
individual cases indicate a much earlier date of discovery for purposes of the statute of
limitations. See, e.g., Appendices A-D of Souther v. Eli Lilly & Co. (In re Zyprexa Prods. Liab.
Litig.), Nos. 04-MD-1596, 06-CV-I729, Docket Entries Nos. 88-1 to 88-4 (E.D.N.Y. June II ,
2007) (including relevant depositions demonstrating doctors' awareness of Zyprexa's association
with patient weight gain).
C.
Zettie Marshall's Zyprexa Use and Procedural Historv
Zettie Marshall, the mother of plaintiff Dyan Moore, was born in Florida. She moved to
California as a young woman, and had three children. See PL's Fact Sheet 2-3. Ms. Marshall
was prescribed Zyprexa in 2001 by her California physician. She died ofa heart attack in
December 2005. She was seventy-two years old.
II
Plaintiffs in the instant case are California residents. They submitted a claim to Lilly for
damages in January 2006, contending that Zyprexa had caused Ms. Marshall's death. See
Request for JUdicial Notice 38-40, Moore v. Eli Lilly & Co., No. II-CV-5552 (E.D.N.Y. Nov. 8,
2011), CMlECF No. 12. Several years later, plaintiffDyan Moore filed a wrongful death action
in a California state court in Los Angeles County, California, on November 8, 2010. See id. at 6.
That case-in which Dyan Moore was the sole plaintiff.- was voluntarily dismissed with
prejudice in February 20 II. See id. at 6-7, 29.
Plaintiffs brought the present wrongful death action in a California state court in Orange
County, California, on November 22,2010, contending that Zyprexa caused Ms. Marshall's
death. See Notice of Removal with Attachments 12, Moore v. Eli Lilly & Co., No. ll-CV-5552
(E.D.N.Y. Nov. 1,2011), CMlECF No.1. Lilly attempted to remove the case to federal court,
see 28 U.S.c. § 1441 (a), but Judge Percy Anderson of the United States District Court for the
Central District of California remanded the case to state court, concluding that defendants had
not adequately demonstrated complete diversity of citizenship between the parties. See Notice of
Removal with Attachments 5-6, Moore v. Eli Lilly & Co., No. ll-CV-5552 (E.D.N.Y. Nov. I,
2011), CMlECF No.1-I. The claims of two plaintiffs originally named in this action, Malika
Moore and LaShaunta Moore, were dismissed without prejudice by a state-court judge in
October 2011. See id. at 50.
After ascertaining from discovery that there was complete diversity as between Lilly and
the Plaintiffs, see 28 U.S.C. § 1446(b), Lilly removed the case in late 2011 to the United States
District Court for the Central District of California. See Notice of Removal 1-8, Moore v. Eli
12
Lilly & Co., No. II-CV-5552 (E.D.N.Y. Nov. 1,2011), CMlECF No. I. The case was
transferred to this court pursuant to an order of the Judicial Panel on Multidistrict Litigation.
In the instant motion, Lilly moves to dismiss the complaint, contending that Plaintiffs'
claims are barred by the doctrine of res judicata and by the statute of limitations. As noted above
in Part I, supra, Lilly's motion is deemed one for summary judgment.
III.
Law
A.
Summary Judgment Standard
Summary judgment is appropriate only if "there is no genuine issue as to any material
fact and if the moving party is entitled to judgment as a matter oflaw." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986); see, e.g., Mitchell v. Washingtonville Cent. Sch. Dist., 190
F.3d I, 5 (2d Cir. 1999). Summary judgment is warranted when after construing the evidence in
the light most favorable to the non-moving party and drawing all reasonable inferences in its
favor, there is no genuine issue as to any material fact and the movant is entitled to judgment as a
matter oflaw. Fed. R. Civ. P. 56(a); see Anderson, 477 U.S. at 247-50, 255.
The burden rests on the moving party to demonstrate the absence of a genuine issue of
material fact. Goenaga v. March ofDimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995);
see, e.g. , Celotex Corp. v. Catrell, 477 U.S. 317, 322-23 (1986). If the moving party appears to
meet this burden, the opposing party must produce evidence that raises a question of material
fact to defeat the motion. See Fed. R. Civ. P. 56(c). This evidence may not consist of "mere
conclusory allegations, speculation or conjecture." Cifarelli v. Vill. ofBabylon, 93 F.3d 47, 51
(2d Cir. 1996); see Del. & Hudson Ry. v. Consolo Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990)
("Conclusory allegations will not suffice to create a genuine issue").
13
B.
Choice of Law
A multidistrict litigation transferee court applies the choice of law and statute of
limitations rules of the state in which the action was filed. Menowitz v. Brown, 991 F.2d 36, 40
(2d Cir. 1993) (citing Van Dusen v. Barrack, 376 U.S. 612 (1964». Because the instant action
was originally commenced in California, that state's choice oflaw principles apply .
"California applies the' governmental interest' approach to conflicts issues." Love v.
Associated Newspapers, Ltd., 611 F.3d 601, 610 (9th Cir. 2010) (applying California law).
Under California law, "[w)here . . . parties do not address choice-of-law issues, California courts
presumptively apply California law." Johnson v. Lucent Techs. Inc., 653 F.3d 1000, 1008 (9th
Cir. 2011) (applying California Jaw) (citing Washington Mut. Bank, FA v. Superior Court, 15
P.3d 1071, 1080 (Cal. 2001».
In this case, the decedent was a resident of California, and critical relevant conduct took
place in that state. Ms. Marshall was prescribed Zyprexa in California, all of her known
physicians practice in that state, and she was hospitalized there; Lilly's alleged national failure to
warn had an impact there, as well. Because California has the largest interest in the resolution of
this litigation, the court will apply that state's law to adjudicate the Plaintiffs' claims.
C.
California Law
Res Judicata
Plaintiffs' complaint rests on the basic allegation that Zyprexa wrongfully caused Ms.
Marshall's death.
A federal court must give to a prior state-court judgment "the same preclusive effect as
would be given that judgment under the law of the State in which the judgment was rendered."
Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S . 75, 81 (1984); see 28 U.S .C. § 1738.
14
,
.
;
...-~" -=-".
,
'- j..
California law provides that a "dismissal with prejudice by plaintiff of its action is a bar
to a subsequent action on the same cause; otherwise there would be no meaning to the 'with
prejudice' feature. A dismissal with prejudice terminates the action and the rights of the parties
are affected by it. It is a final judgment in favor of defendants." Roybal v. Univ. Ford, 207 Cal.
App. 3d 1080, 1085-86 (Cal. Ct. App. 1989) (internal quotation marks omitted). A "request for
dismissal with prejudice ... bars a new action." Id (emphasis omitted).
"California law defines a 'cause of action' for purposes of the res judicata doctrine by
analyzing the primary right at stake: A 'cause of action is comprised of a primary right of the
plaintiff, a corresponding primary duty of the defendant, and a wrongful act by the defendant
constituting the breach of that duty. The most salient characteristic of a primary right is that it is
indivisible: the violation of a single primary right gives rise to but a single cause of action." Le
Parc Cmty. Ass 'n v. Workers' Compo Appeals Ed, 110 Cal. App. 4th 1161, 1170 (Cal. Ct. App.
2003) (internal quotation marks and bracketing omitted).
D.
California Law-Statute of Limitations
Pursuant to California law, wrongful death actions are subject to a two-year statute of
limitations. See Cal. Civ. Proc. Code § 335.1.
California law provides that the statute of limitations "normally begins to run when the
claim accrues, that is, when the cause of action is complete with all of its elements." Soliman V.
Phillip Morris Inc., 311 F.3d 966, 971 (9th Cir. 2002) (applying California law) (internal
quotation marks omitted). "An exception to the general rule for defining the accrual of a cause
of action-indeed, the most important one-is the discovery rule.... It postpones the accrual of
IS
a cause of action until the plaintiff discovers, or has reason to discover, the cause of action."
Norgart v. Upjohn Co., 981 P.2d 79,88 (Cal. 1999) (Mosk, J.).
IV.
Application of Law to Facts
In the Los Angeles County action, plaintiff Dyan Moore asserted an identical claim
against Lilly to the one pressed here. That claim was voluntarily dismissed with prejudice in
February 2011. See Request for Judicial Notice 29, Moore v. Eli Lilly & Co., No. II-CV-5552
(E.D.N.Y. Nov. 8,2011), CMlECF No. 12. Pursuant to California law, the voluntary dismissal
with prejudice of her wrongful death claim bars her relitigation of that cause of action.
Plaintiff Larry Moore submitted a claim for damages to Lilly in January 2006,
demonstrating that he believed that Zyprexa had played a role in causing Ms. Marshall's death.
See id. at 40. Assuming that application of the discovery rule is appropriate, he had two years
from that date, at the latest, to bring an action against Lilly. The Orange County action, in which
he was named as a plaintiff, was not brought until late November 2010. See Notice of Removal
with Attachments 12, Moore v. Eli Lilly & Co., No. II-CV-5552 (E.D.N.Y. Nov. 1,2011),
CMlECF No. I. His claim is thus barred by the statute of limitations. There is no basis for
application of the doctrine of equitable tolling; no substantial reason has been proffered to justify
plaintiff's delay in bringing his claim against Lilly. See, e.g. , Daviton v. ColumbialHCA
Healthcare Corp., 241 F.3d 1 \31,1 \36-39 (9th Cir. 2001) (describing California's equitable
tolling doctrine).
V,
Conclusion
Dyan Moore's action is barred by res judicata. The statute of limitations bars Larry
Moore' s action. The arguments made by plaintiffs at a hearing conducted on April 19,2012 and
16
in a letter ofthat same day do not require the court to conclude differently. As noted in Part II.C,
supra, the claims of the other plaintiffs originally named in this action have previously been
dismissed without prejudice. The case is dismissed as against all defendants. No costs or
disbursements.
eins ein
enior United States District Judge
Date: April 19, 2012
Brooklyn, New York
17
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