Luberda v. Purdue Frederick Corp et al

Filing 186

ORDER ruling on 126 Motion to Dismiss; 129 Motion to Dismiss; 133 Motion to Dismiss; 143 Motion to Dismiss; 183 Motion to Appoint Guardian ad Litem. The Court dismisses this action without prejudice as to Defend ants Edward Mahony, Stuart Baker, David A. Long, James Dolan, Robin Abrams, Richard S. Silbert, Craig Landau, M.D., Robert F. Kaiko, Bert Weinstein, Phillip C. Strassberger, J. David Haddox, DDS, M.D., James Heins, Curtis Wright, Charles Robert Hogen , Danielle Nelson, William Malin, Perry Fine, M.D., Lynn Webster, M.D., Russell Portenoy, M.D., Alan Spanos, M.D., and Scott Fishman, M.D. The motion to dismiss is denied as to Defendants Paul Goldenheim, M.D., Michael Friedman, Russell Gasdia, and J ohn N. Stewart. The plaintiff is allowed to engage in jurisdictional discovery as to these defendants during the general discovery period in the case. The motions to dismiss by the Purdue Defendants and Defendant Friedman on the basis that the neglig ence, gross negligence, and fraud claims fail to state a claim are denied, and the plaintiff is given leave to file a second amended complaint addressing the pleading deficiencies argued by the defendants as to those claims within 15 days. The plaint iffs Motion for Appointment of Guardian ad Litem (ECF No. 183 ) is granted, and Daniel L. Luberda as Guardian ad Litem for Daniel C. Luberda is substituted as Plaintiff. The motions to dismiss the action pursuant to Fed. R. Civ. P. 12(b)(6) on the basis of the statute of limitations are denied. Signed by the Honorable R Bryan Harwell on 3/28/2014. (hcic, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Daniel C. Luberda, by his appointed agent
Daniel L. Luberda,

)
)
)
Plaintiff,
)
)
Purdue Frederick Corp., et al,
)
)
Defendants. )
____________________________________)

Civil Action No. 4:13-cv-00897-RBH

ORDER

Before the Court are [126] Motion to Dismiss filed by Defendant, Scott Fishman; [129]
Motion to Dismiss filed by Defendants Perry Fine, Russell Portenoy, Alan Spanos, and Lynn
Webster; [133] Motion to Dismiss filed by Individual Defendants Robin Abrams, et al and the
Perdue Defendants; and [143] Motion to Dismiss filed by Defendant, Michael Friedman. A hearing
was held on the motions on March 14, 2014 at 9:30 a.m. Present at the hearing were Carla GrabertLowenstein on behalf of the plaintiff and Susan Glenn, Erin Stuckey, Chilton Varner, Stephen
Devereaux, Daniel Blanchard, and Bob Horner (appearing in place of attorney Monteith Todd) on
behalf of the various defendants as reflected by the docket in this case. Attorney Jeffrey Mann, who
has been admitted pro hac vice, appeared by telephone for Defendant Fine.
MOTIONS TO DISMISS INDIVIDUAL DEFENDANTS
The individual defendants have moved to dismiss based upon their argument that the Court
lacks personal jurisdiction, as they do not have contacts with South Carolina sufficient to satisfy the
South Carolina Long-Arm Statute or the requirements of constitutional due process. These
defendants assert by way of affidavit that they have never owned property in South Carolina; nor
have they earned substantial revenue from selling goods or rendering services in the state. Many of

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them have never been to South Carolina. Some have traveled here on a limited basis, but none of
these trips were in any way connected to the plaintiff’s claims in this lawsuit. These defendants
also assert that, because the Court lacks personal jurisdiction over them under the Long-Arm
Statute, Plaintiff’s attempts to serve them by certified mail (or by personal service as to Defendant
Michael Friedman) were invalid.1

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In their supplemental filings with the Court after the hearing was held on the motions to
dismiss (ECF Nos. 179 and 181), many of the individual Purdue defendants also contended that
(even if the Long-Arm Statute was satisfied) the plaintiff has not met the requirements under Fed.
R. Civ. P. 4(e), incorporating S.C.R.C.P. 4(d)(8), for the proper method of service by certified mail
and requested an order requiring Plaintiff to file proof of service within ten days or for dismissal for
lack of proof of service. Subsequently, the plaintiff filed what she had regarding proof of service.
The Court notes that many of the certified mail receipt cards do not indicate they were restricted
delivery to the addressee and were signed by someone other than the addressee individual defendant.
However, this argument was not made in the Motions to Dismiss made by these defendants, other
than as to individual defendants Nelson and Udell. See ECF Nos. 133 and 143. (The argument was
also made by Defendant Fine in his Motion to Dismiss.) (ECF No. 129) Therefore, any argument
as to insufficiency of service of process as to those defendants who did not include this argument
in their Rule 12(b) motions has been waived. Fed. R. Civ. P. 12(g) provides: “Except as provided
in Rule 12(g)(2) or (3), a party that makes a motion under this rule must not make another motion
under this rule raising a defense or objection that was available to the party but omitted from its
earlier motion.” Rule 12(g)(2) and (3) concern motions to dismiss on the basis of failure to state a
claim, to join a party under Rule 19(b), to state a legal defense, and for lack of subject matter
jurisdiction. Those defenses are not at issue here. Rule 12(h)(1)(A) provides that “[a] party waives
any defense listed in Rule 12(b)(2) to (5) by: omitting it from a motion in the circumstances
described in Rule 12(g)(2).” The Court also notes that affidavits by the defendants which are
attached to #133 and 143 state that each defendant received a copy of the Summons and Complaint
by certified mail, return receipt requested (ECF No. 133-5 through 17, No. 133-19 through 21, and
No. 133-23 through 24). “A litigant [must] exercise great diligence in challenging personal
jurisdiction, venue, or service of process. If that party wishes to raise any of these defenses, that
must be done at the time the first significant defensive move is made-whether it be by way of a Rule
12 motion or a responsive pleading.” 5 Charles Alan Wright & Arthur Miller, Federal Practice and
Procedure Section 1391. By failing to raise this defense in the pre-answer motion, the defendants
have waived this defense. See Pusey v. Dallas Corp., 938 F.2d 498 (4th Cir. 1991). The Court
would have been inclined to dismiss many of these defendants on the basis of insufficiency of
service of process for failing to properly serve them by certified mail, return receipt requested,
delivery restricted to the addressee. However, where the defense was not raised in the Rule 12(b)
motion, the defense has been waived. Defendants clearly knew that the defense might be available
where it was raised on behalf of Defendants Nelson, Udell, and Fine.
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Service by Certified Mail
Plaintiff attempted to serve most of the nonresident defendants by certified mail. Fed. R.
Civ. P. 4(e) provides that an individual within a judicial district of the United States shall generally
be served by (1) following state law in the state where the district court is located or where service
is made or (2) serving the individual personally, leaving a copy with someone of suitable age and
discretion at the individual’s dwelling, or serving an agent authorized by appointment or by law.
South Carolina state law allows service of individuals by certified mail. S. C. R. C. P. 4(d)(8).
However, service is not effective unless the certified mail is “return receipt requested and delivery
restricted to the addressee.” Id.
South Carolina Code Section 36-2-804 provides that service by certified mail may be made
outside South Carolina when personal jurisdiction is allowed by the long-arm statute. Under South
Carolina Code § 36-2-806(1)(c), such service must be “addressed only to the person to be served
and require(s) a return receipt showing the acceptance by the defendant.” The South Carolina
Long-Arm Statute, S.C. Code Ann. Section 36-2-803(A) contains several subsections. Plaintiff
does not dispute that Subsection (4) is the only part of the statute under which he could arguably
assert jurisdiction. That subsection allows courts in South Carolina to assert personal jurisdiction
over a non-resident defendant “[c]ausing tortious injury or death in this State by an act or omission
outside this State if he regularly does or solicits business, or engages in any other persistent course
of conduct, or derives substantial revenue from the goods used or consumed or services rendered in
this State.” The individual defendants contend that this subsection is not sufficiently broad to cover
their activities outside South Carolina as employees of a corporation which does business in South

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Carolina.
Law Relating to Personal Jurisdiction. A federal “district court has personal jurisdiction
over a defendant if the state courts where the federal court is located would possess such
jurisdiction.” ePlus Tech., Inc. v. Aboud, 313 F.3d 166, 176 (4th Cir. 2002). In other words, federal
district courts exercise personal jurisdiction over a defendant to the extent provided by state law,
including state general jurisdiction and long-arm statutes. Aboud, 313 F.3d at 176; see Combs v.
Bakker, 886 F.2d 673, 675 (4th Cir. 1989). South Carolina courts have held that the state’s long arm
statute is coextensive with the limits set by the due process clause. See Power Prods. & Servs. Co.
v. Kozma, 379 S.C. 423, 665 S.E.2d 660, 664 (Ct. App. 2008). Thus, the statutory inquiry merges
with the constitutional inquiry. Carefirst of Maryland, Inc. v. Carefirst Pregnancy Centers, Inc.,
334 F.3d 390, 396-97 (4th Cir. 2003).
In a lawsuit with multiple defendants, the court must examine each defendant's separate
and distinct contacts with South Carolina individually. Keeton v. Hustler Magazine, Inc.,
465 U.S. 770, 781 n.13 (1984); Calder v. Jones, 465 U.S. 783, 790 (1984).
Personal jurisdiction is exercised as “general jurisdiction” or “specific jurisdiction.” ESAB
Group, Inc. v. Centricut, LLC, 34 F. Supp.2d 323 (D.S.C. 1999). General jurisdiction exists where
a defendant has such “continuous and systematic” contacts with the forum state that it may be haled
into court on any claim. Helicopteros Nacionales deColombia, S.A. v. Hall, 466 U.S. 408 (1984).
Specific jurisdiction is narrower and exists only when the suit against the defendant arises out of his
specific contacts with the forum state or is related thereto. ESAB, 34 F. Supp.2d at 331-32.
The party seeking to invoke personal jurisdiction over a nonresident defendant bears the
burden of proving the existence of personal jurisdiction. ESAB Group, Inc. v. Centricut, LLC,

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34 F.Supp.2d 323, 328 (D.S.C.1999). At the pretrial stage, the burden of proving personal
jurisdiction over a nonresident is met by a prima facie showing of jurisdiction either in the
complaint or in affidavits. In determining whether a prima facie showing has been made, the Court
may consider the uncontroverted allegations in Plaintiff’s pleading. However, whenever the
allegations in Plaintiff’s pleading are contested by sworn affidavit, Plaintiff can no longer rest on
those allegations. Instead, it then becomes Plaintiff’s burden to present an affidavit or other
evidence proving that jurisdiction exists over the nonresident defendant. See Wolf v. Richmond
Cnty. Hosp. Auth., 745 F.2d 904, 908 (4th Cir. 1984); Clark v. Remark, 993 F.2d 228 (table), 1993
WL 134616, at *2 (4th Cir. 1993).
The Due Process Clause is satisfied for personal jurisdiction purposes if a defendant
“purposefully avails itself of the privilege of conducting activities within the forum State, thus
invoking the benefits and protections of its laws,” by establishing sufficient “minimum contacts”
such that maintenance of the suit does not offend traditional notions of “fair play and substantial
justice.” Burger King v. Rudzewicz, 471 U.S. 462, 475-76 (1985). A defendant has sufficient
minimum contacts with a state only when “the defendant’s conduct and connection with the forum
state are such that he should reasonably anticipate being haled into court there.” World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
The Fourth Circuit has articulated a three-part test for evaluating whether exercising
personal jurisdiction comports with due process: (1) whether and to what extent the defendant
“purposely availed” himself of the privileges of conducting activities in the forum state, and thus
invoked the benefits and protections of its laws; (2) whether the plaintiff’s claims arise out of
those forum-related activities; and (3) whether the exercise of jurisdiction is constitutionally

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“reasonable.” Christian Sci. Bd. of Dirs. of the First Church of Christ v. Nolan, 259 F.3d 209,
215-16 (4th Cir. 2001) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,
415-16 (1984).
DISCUSSION OF EACH INDIVIDUAL DEFENDANT
Edward Mahony, Stuart Baker, David A. Long, James Dolan, Robin Abrams, Richard S.
Silbert, Craig Landau, M.D., Robert F. Kaiko, Bert Weinstein, Phillip C. Strassberger, J.
David Haddox, DDS, M.D., James Heins, Curtis Wright, Charles Robert Hogen, William
Mallin, Lynn Webster, M.D., Russell Portenoy, M.D., Alan Spanos, M.D. and Scott Fishman,
M.D..
Based upon the record in this case and the arguments and briefs by counsel, the Court lacks
personal jurisdiction over these above named defendants. Even if the long-arm statute could
arguably allow the exercise of personal jurisdiction over them, these defendants lack minimum
contacts with the state of South Carolina and, thus, haling them into court in South Carolina would
violate due process. These defendants are dismissed without prejudice.
Danielle Nelson
According to her affidavit, Ms. Nelson retired from Purdue in June, 2007, and this lawsuit
was not filed until 2013. Plaintiff attempted to serve Ms. Nelson by certified mail, return receipt
requested. See ECF No. 180-1, p. 15. The mail was addressed to her at 201 Tresser Blvd.,
Stamford, CT 06901, which was apparently Purdue’s address. The green card contains an illegible
signature, apparently by someone at Purdue. Also, the two pertinent places on the green card do not
show that delivery was restricted to her. Service was not effected on Ms. Nelson, and the lawsuit is
dismissed as to her without prejudice. See argument in ECF No. 133, p. 60.

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Additionally, based upon her uncontroverted affidavit, she lacks minimum contacts with
South Carolina, and the motion to dismiss is also granted on the basis of lack of personal
jurisdiction.
Perry Fine, M.D.
The statute permitting service by certified mail requires that it be “addressed
only to the person to be served” and that “a return receipt show[s] the acceptance by the
defendant.” S.C. Code § 36-2-806(1)(c). Plaintiff attempted to serve Dr. Fine by certified mail on
three separate occasions, however, in no instance did Dr. Fine sign for the certified mail. Fine Decl.
at ¶¶ 17–20. Therefore, even if South Carolina had personal jurisdiction over Dr. Fine and thus
service by certified mail was authorized, because Dr. Fine did not sign for the certified mail
personally, the attempted service in this manner failed. Plaintiff's attempt to serve him by certified
mail was unsuccessful, and the motion to dismiss is granted, without prejudice, as to Dr. Fine.
In addition, based upon the record in this case and the arguments by counsel, the Court lacks
personal jurisdiction over Dr. Fine. Dr. Fine lacks minimum contacts with the state of South
Carolina and, thus, haling him into court in South Carolina would violate due process.
Paul Goldenheim, M.D.,, John N. Stewart, Michael Friedman, and Russell Gasdia
Goldenheim, Stewart, and Gasdia each filed an affidavit with the Court stating: “I received
a copy of the original Summons and Complaint by Certified Mail, return receipt requested.” (ECF
No. 133-8, -9, -17, -20, attached to Motion to Dismiss) Friedman stated in his affidavit in support of
his motion to dismiss: “ I was handed a copy of the Summons and Amended Complaint on July 9,
2013, by a Connecticut Marshal, at my home.” (ECF No. 143-1) Sufficiency of service of process
on these defendants was not contested in the motion to dismiss.

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However, each defendant has requested the Court to dismiss them based on lack of personal
jurisdiction.
Friedman’s affidavit indicates that he was employed in various positions with the Purdue
entities from June 1985 until July 2007 and that, at the time he left Purdue, he was President, Chief
Executive Officer. (ECF No. 143-1) Friedman entered a guilty plea in 2007 to the strict liability
misdemeanor offense of misbranding a drug in violation of 21 U.S.C. §§ 331(a) and 333(a)(1).
(Attachment to Amended Complaint, ECF No. 15) The affidavit of Paul Goldenheim states that he
was employed with Purdue from 1985 until May 31, 2004. At the time he left Purdue, he was the
Executive Vice President, Wordwide Research & Development and Chief Scientific Officer. (ECF
No. 133-9) Goldenheim also entered a guilty plea to the misdemeanor offense of misbranding.
(ECF No. 151-5) The affidavit of Russell J. Gasdia indicates that he is the Vice President, Sales and
Marketing for Purdue Pharma L.P. and that he has been employed by Purdue since September 1985.
(ECF No. 133-8) John H. Stewart’s affidavit indicates that he is President and CEO of Purdue
Pharma L.P. and that he has served in that position since June, 2007. (ECF No. 133-20)
In Columbia Briargate Co. v. First Nat’l Bank in Dallas, 713 F.2d 1052 (4th Cir. 1983), the
Fourth Circuit cited with approval Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902, 907
(1st Cir. 1980), which held that direct personal involvement by a corporate agent in a tort committed
in the forum state exists when “the defendant [agent is] the guiding spirit behind the wrongful
conduct, or the central figure in the challenged corporate activity.” Id. Here, it is unclear what
involvement each of these defendants may have had in the decision-making regarding the marketing
of OxyContin. The gravamen of this lawsuit appears to be based on the alleged misbranding and
misrepresentations made in the marketing of OxyContin. Therefore, the Court will allow the

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plaintiff to conduct jurisdictional discovery as to Friedman, Stewart, Gasdia, and Stewart. Also,
with regard to these defendants, the motion is denied without prejudice to their right to raise
personal jurisdiction again at the summary judgment stage.
Howard Udell
This defendant was dismissed at the hearing in this matter with consent of the plaintiff.
MOTIONS TO DISMISS AS TO SUFFICIENCY OF PLEADING NEGLIGENCE, GROSS
NEGLIGENCE, AND FRAUD (FIRST, SECOND, AND THIRD CAUSES OF ACTION)
The United States Supreme Court has held that "[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged." Id. Defendants contend that Plaintiff’s negligence and gross negligence
claims do not satisfy Fed. R. Civ. P. 8 and lack facial plausibility. A negligence claim consists of
three elements: (1) a duty of care owed by the defendant to the plaintiff; (2) a breach of that duty by
a negligent act or omission; and (3) damage proximately resulting from the breach. Crolley v.
Hutchins, 387 S.E.2d 716, 717 (S.C. Ct. App. 1989).
Defendant asserts that Plaintiff’s negligence based claims arise from failure to properly warn
concerning the risks associated with taking Oxycontin. The negligence cause of action in Paragraph
62 of the Amended Complaint alleges that “Defendants owed Plaintiff a duty to properly warn of
the potential for and/or risk of addiction associate (sic) with their product.” They allegedly breached
this duty by failing to properly warn of the potential for addiction in the way they “labeled,

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marketed and misbranded their product.” The breach was allegedly the direct and proximate cause
of the plaintiff’s injuries. Defendants, however, contend that South Carolina law does not impose on
manufacturers a duty to warn patients directly; they only have a duty to warn physicians, who are
learned intermediaries. Therefore, in order to state a claim, defendants argue that the complaint
must contain sufficient allegations that Purdue failed to warn Dr. Chambers, Luberda’s physician
who prescribed him the Oxycontin.
A prescription drug manufacturer’s duty to warn is governed by the learned intermediary
doctrine, under which a manufacturer has a duty to warn only a prescribing physician of the risks
associated with a drug. The physician serves as an intermediary between the manufacturer and the
patient. Brooks v. Medtronic, Inc., 750 F.2d 1227 (4th Cir. 1984)(predicting South Carolina law)2.
In addition to showing that a drug manufacturer’s warning was inadequate, a plaintiff in a failure to
warn case must also show that the inadequacy of the warning was the proximate cause of the
plaintiff’s injury. To do so, the plaintiff must show that the undisclosed risk was sufficiently high
that it would have changed the doctor’s decision. Odom v. G.D. Searle & Co., 9l79 F.2d 1001,
1003 (4th Cir. 1992).
The Court agrees with the defendants that the plaintiff has not stated a claim for negligence
or gross negligence because he has not alleged that his physician would have changed his
prescribing decision had there been a different warning. The Court will allow the plaintiff to file a
Second Amended Complaint amending his negligence and gross negligence claims in accordance

2

The Court is not aware of any decision by the South Carolina Supreme Court or the South
Carolina Court of Appeals rejecting the learned intermediary doctrine in a prescription drug case.
The doctrine was applied to a claim against a pharmacist in Madison Am. Home Prods. Corp., 358
S.C. 449, 595 S.E.2d 493, 496 (2004). See also, Carnes v. Eli Lilly and Co., No. 0:13-591-CMC,
2013 WL 6622915 (D.S.C. December 16, 2013).
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with the learned intermediary doctrine.
When a plaintiff alleges fraud, Federal Rule of Civil Procedure 9(b) requires courts to apply
a heightened pleading standard to those claims. Rule 9(b) requires that, when “alleging fraud . . . a
party must state with particularity the circumstances constituting fraud.” Id. The heightened
pleading standard contained in Rule 9(b) requires plaintiffs to plead with particularity "'the time,
place, and contents of the false representations, as well as the identity of the person making the
misrepresentation and what he obtained thereby.'" Harrison v. Westinghouse Savannah River Co.,
176 F.3d 776, 784 (4th Cir. 1999)(quoting 5 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure: Civil § 1297 at 590 (2d ed. 1990)). In order to prove fraud, the following
elements must be shown by clear and convincing evidence: (1) a representation; (2) its falsity; (3)
its materiality; (4) either knowledge of its falsity or a reckless disregard of its truth or falsity; (5)
intent that the representation be acted upon; (6) the hearer's ignorance of its falsity; (7) the hearer's
reliance on its truth; (8) the hearer's right to rely thereon; and (9) the hearer's consequent and
proximate injury. Ardis v. Cox, 431 S.E.2d 267, 269 (S.C. Ct. App. 1993). In addition to pleading
these elements, the plaintiff must plead facts in accordance with the learned intermediary doctrine3
regarding the misrepresentation or failure to disclose to Luberda’s physician and the other elements
of fraud including reliance by the physician on the misrepresentations. The Court will allow the
plaintiff to file a Second Amended Complaint amending the fraud claim as discussed herein.
The plaintiff is granted leave to file a Second Amended Complaint within 15 days to address

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The Fourth Circuit has applied the learned intermediary doctrine to a fraud case brought
under Virginia law. This Court predicts that South Carolina courts would also apply the doctrine
in a fraud case regarding prescription drugs involving misbranding or the failure to warn. See Talley
v. Danek Medical, Inc., 179 F.3d 154 (4th Cir. 1999).
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the deficiencies noted and reflecting the dismissal of individual defendants as ordered.
MOTION TO DISMISS FOURTH CAUSE OF ACTION FOR VIOLATION OF S.C. CODE
§ 39-23-80
Defendants also assert that there is no claim for negligence per se under S.C. Code Ann. §
39-23-80, a criminal statute addressing the misbranding of drugs. Plaintiff contends that the theory
of negligence per se applies anytime a statute is violated and results in tortious injury. “Negligence
per se is established by showing a statute created a duty to the plaintiff and the defendant breached
that duty by violating the statute.” Seals by Causey v. Winburn, 314 S.C. 416, 445 S.E.2d 94 (Ct.
App. 1994). After establishing negligence per se, a plaintiff must prove that violation of the statute
was causally linked to the injury. Id. Defendants cite Williams v. Hill Mfg. Co., Inc., 489 F. Supp.
20 (D.S.C. 1980) which found that South Carolina has adopted the statutory purpose doctrine and
applied three tests in applying it: (1) whether the legislature intended to create a private rather than
public liability; (2) whether the person injured is a person or member of a class for whose benefit
the law was intended to protect; and (3) whether the injury complained of was the type the statute
was intended to prevent. The Court has been furnished no authority indicating that the South
Carolina legislature intended to create a private cause of action for violation of this statute.
Therefore, the Fourth Cause of Action is dismissed.
MOTIONS TO DISMISS BY PURDUE DEFENDANTS AND DEFENDANT FRIEDMAN AS
TO STATUTE OF LIMITATIONS
The defendants assert that the entire case should be dismissed as barred by South Carolina’s
3-year statute of limitations for personal injury actions, S.C. Code Ann. § 15-3-530(5). They
further cite S.C. Code Ann. § 15-3-535, providing that a personal injury action must be brought

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“within three years after the person knew or by the exercise of reasonable diligence should have
known that he had a cause of action.” See also, Code Section 15-3-530(7) providing a three year
statute of limitations for a fraud action, “the cause of action in the case not considered to have
accrued until the discovery by the aggrieved party of the facts constituting the fraud.”
A defendant’s statute of limitations affirmative defense can be raised in a 12(b)(6) motion to
dismiss; however, it is seldom appropriate to do so. “A motion under Rule 12(b)(6) is intended to
test the legal adequacy of the complaint, and not to address the merits of any affirmative defenses.”
Richmond, Fredricksburg & Potomac R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993).
Accordingly, a statute of limitations defense must “clearly appear[] on the face of the complaint.”
Id. In other words, the complaint must clearly “allege all facts necessary to the affirmative
defense.” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (citing Forst, 4 F.3d at 250).
The Amended Complaint alleges in ¶ 55 that “[b]y October of 2004 Daniel C. Luberda
became involuntarily addicted to OxyContin; and while suffering involuntary addiction, and to
satisfy the addiction, Daniel C. Luberda took OxyContin that was not prescribed for him for his
own use, and did use this Oxycontin to satisfy his own involuntary addiction.” The Amended
Complaint also alleges in ¶ 59 that Luberda was arrested on December 21, 2010 and began serving
his five year federal sentence on August 19, 2011. Defendants assert that the only plausible
inference from the above allegations is that Luberda knew or should have known by late 2004 that
he was “having problems” with Oxycontin. He filed the lawsuit in state court on February 28, 2013.
(The case was removed to this court on April 3, 2013.) Therefore, Defendants assert that the
lawsuit is barred by the statute of limitations.
Defendants have cited many cases from states other than South Carolina, most of which

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dealt with motions for summary judgment or directed verdicts at trial. However, the most
analogous reported South Carolina cases appear to be Preer v. Mims, 323 S.C. 516, 476 S.E.2d 472
(1996)4 and Moriarty v. Garden Sanctuary Church of God, 341 S.C. 320, 534 S.E.2d 672 (2000).
In Preer, a patient brought a medical malpractice action against his physician claiming that
he had become addicted to the prescription drug Vicodin as a result of the physician’s negligence.
The physician moved for directed verdict at trial on the basis of the medical malpractice statute of
limitations, S.C. Code § 15-3-545(A). Under that code section, any action for medical malpractice
“must be commenced within three years from the date of the treatment, omission, or operation
giving rise to the cause of action or three years from date of discovery or when it reasonably ought
to have been discovered, not to exceed six years from date of occurrence, or as tolled by this
section.” The trial court ruled that Preer knew or reasonably should have discovered this cause of
action by March of 1990, as shown by the evidence at trial. Therefore, the statute of limitations
began to run at that time. He did not initiate the lawsuit until April of 1993; accordingly, the court
found the action was barred by the statute of limitations. On appeal, the South Carolina Supreme
Court held:
“Because Preer had knowledge of his addiction, and hence, knowledge of Mims’s
negligence, by March 1990, the statute of limitations began running at that time, and
any action after March 1993 would be barred. . . accordingly, he is barred by the
statute of limitations.”
Preer, 476 S.E.2d at 474 (Emphasis added).

4

Similarly, the South Carolina Court of Appeals affirmed a grant of motion for directed
verdict at trial on the basis of the statute of limitations in Wilson v. Shannon, 299 S.C. 512, 386
S.E.2d 257 (Ct. App. 1989). In that case, the court found that facts actually known by plaintiff were
sufficient to put a person of common knowledge and experience on notice that doctor had
improperly prescribed Valium.
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In Moriarty, a repressed memory case, the South Carolina Supreme Court reviewed the law
concerning the discovery rule and held that the Court of Appeals properly reversed the trial court’s
grant of summary judgment to the defendant on the basis of the statute of limitations. The court
held that the discovery rule may toll the statute of limitations during the period a victim
psychologically represses her memory of sexual abuse. The court noted that under South Carolina
Code section 15-3-535, “the statute of limitations is triggered not merely by knowledge of an injury
but by knowledge of facts, diligently acquired, sufficient to put an injured person on notice of the
existence of a cause of action against another.” Id., 534 S.E.2d at 676, citing Wiggins v. Edwards,
314 S.C. 126, 442 S.E.2d 169, 170 (1994). Importantly, the Moriarty court refers to “whether a
reasonable person in her circumstances would have been on notice by a certain date”. (Emphasis
added)
The statute of limitations thus begins to run either when the injured party knows that he is
addicted to a drug or when a reasonable person in the addicted person’s circumstances would have
been on notice that he was addicted. Therefore, the allegations of the Amended Complaint in this
case are not sufficiently clear that the case is barred by the statute of limitations. It merely alleges
that Plaintiff became involuntarily addicted by October of 2004, not that the plaintiff knew he was
addicted or that a reasonable person in his circumstances would have known that he was addicted.
This may at a later time in the case be a viable defense. However, the motions to dismiss under
Rule 12(b)(6) based upon the statute of limitations, at this stage, are denied.
Conclusion
For the reasons stated herein, the Court dismisses this action without prejudice as to
Defendants Edward Mahony, Stuart Baker, David A. Long, James Dolan, Robin Abrams, Richard

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S. Silbert, Craig Landau, M.D., Robert F. Kaiko, Bert Weinstein, Phillip C. Strassberger, J. David
Haddox, DDS, M.D., James Heins, Curtis Wright, Charles Robert Hogen, Danielle Nelson,
William Malin, Perry Fine, M.D., Lynn Webster, M.D., Russell Portenoy, M.D., Alan Spanos,
M.D., and Scott Fishman, M.D. The motion to dismiss is denied as to Defendants Paul
Goldenheim, M.D., Michael Friedman, Russell Gasdia, and John N. Stewart. The plaintiff is
allowed to engage in jurisdictional discovery as to these defendants during the general discovery
period in the case. The motions to dismiss by the Purdue Defendants and Defendant Friedman on
the basis that the negligence, gross negligence, and fraud claims fail to state a claim are denied, and
the plaintiff is given leave to file a second amended complaint addressing the pleading deficiencies
argued by the defendants as to those claims within 15 days. The plaintiff’s Motion for Appointment
of Guardian ad Litem (ECF No. 183) is granted, and Daniel L. Luberda as Guardian ad Litem for
Daniel C. Luberda is substituted as Plaintiff. The motions to dismiss the action pursuant to Fed. R.
Civ. P. 12(b)(6) on the basis of the statute of limitations are denied.
AND IT IS SO ORDERED.
March 28, 2014
Florence, SC

s/R. Bryan Harwell
R. Bryan Harwell
United States District Judge

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