Wyeth’s attorneys in the case of Burnett v. Wyeth have moved for summary judgment, which means they are asking the judge to “throw the case out.”
Plaintiff and Mrs. Burnett testified that they discovered the nature of Plaintiff's injury, tardive dyskinesia, and its link to Reglan when they conducted the Internet search in Fall, 2004. Thereafter, Mr. Burnett contacted attorneys on Plaintiff's behalf, and pursuant to instructions from this counsel, Plaintiff made the Haverty's videotape in November-December 2004. On December 8, 2004, Plaintiff asked his doctor for a referral to a neurologist, by this time aware that he had a neurological condition and believing that it was caused by Reglan. By the time that Plaintiff and his wife went to see Dr. Moore in mid-December, 2004, they already believed that Plaintiff had Reglan-induced tardive dyskinesia. They knew the elements of their claims by the time that Plaintiff sought neurological treatment on December 8, 2004. Thus, more than two years before Plaintiff filed suit in Minnesota on December 15, 2006, Plaintiff knew all the elements of his claim necessary to start limitations running, but he did not sue within those two years; he conceded in Minnesota federal court that this was fatal to his claim under Texas law.[FN10] Accordingly, Plaintiffs tort claims, filed more than two years after his cause of action accrued, are barred by limitations under section 16.003(a).
Wyeth wants the case “thrown out” because the plaintiffs waited too long to file their lawsuit. This shows the importance of contacting a movement disorder attorney quickly if you believe you have tardive dyskinesia after ingesting any gastrointestinal drugs containing metoclopramide.
TABLE OF CONTENTS
Table of Contents ... i
Index of Authorities ... ii
I. Summary ... 1
II. Summary Judgment Standard ... 2
III. The Lawsuit ... 2
A. History of the Case ... 2
B. Undisputed Facts Relevant to Limitations ... 4
1. Plaintiff's discovery of his cause of action ... 4
2. Plaintiff's use of Wyeth's drugs ... 12
IV. Wyeth Is Entitled to Summary Judgment on All Plaintiff's Claims ... 12
A. The Texas Statute of Limitations Applies to this Case ... 12
B. Plaintiff's Claims are Barred by Texas' Statute of Limitations ... 14
1. Plaintiff's claims ... 14
2. Plaintiff's tort claims are barred ... 15
3. Plaintiff's breach of warranty claims are barred ... 18
4. Plaintiff's unfair trade practices claim is barred ... 19
V. Conclusion and Request for Relief ... 21
Certificate of Service ... 23
INDEX OF AUTHORITIES
Case
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ... 2
Bell v. Showa Denko K.K., 899 S.W. 2d 749 (Tex. App.--Amarillo 1995, writ denied) ... 19, 20
Bordelon v. Peck, 661 S.W.2d 907 (Tex. 1983) ... 17
Burnett v. Wyeth, No. 06-4923 (DWF/SRN), 2008 WL 732425, (D. Minn. Mar. 17, 2008) ... 1, 3, 4, 12, 20
Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ... 2
Certain-Teed Prods. Corp. v. Bell, 422 S.W.2d 719 (Tex. 1968) ... 18
Childs v. Haussecker, 974 S.W. 2d 31 (Tex. 1999) ... 15
Davis v. A.G. Edwards & Sons, Inc., 823 F.2d 105 (5th Cir. 1987) ... 16
Earle v. Ratliff 998 S.W.2d 882 (Tex.1999) ... 17
Ferguson v. Neighborhood Housing Serv., Inc., 780 F.2d 549 (6th Cir. 1986) ... 16
Herter v. Wolfe, 961 S.W.2d 1 (Tex.App.-Houston [1st Dist.] 1995, writ denied ) ... 18
Hildebrandt v. Allied Corp., 839 F.2d 396 (8th Cir. 1987) ... 14
Hodge v. Northern Trust Bank of Texas, N.A., 54 S.W.3d 518 (Tex.App. Eastland 2001, pet. denied) ... 17
In re Baycol Prods. Litig., 218 F.R.D. 197 (D. Minn. 2003) ... 20
In re Kimball Hill Homes Texas, Inc., 969 S.W.2d 522 (Tex.App.-Houston [14th Dist.] 1998, orig. proceeding) ... 17
Jenkins v. Orkin Exterminating Co., Inc., 646 F. Supp. 1274 (E.D. Tex. 1986) ... 7
Martin v. Home Depot U.S.A. Inc., 369 F.Supp.2d 887 (W.D. Tex. 2005) ... 19
Martz v. Weyerhaeuser Co., 965 S.W.2d 584 (Tex. App.-Eastland 1998, no pet.) ... 17, 18
Nebraska v. Wyoming, 507 U.S. 584 (1993) ... 2
Nesladek v. Ford Motor Co., 46 F.3d 734 (8th Cir. 1995) ... 20
Nodak Mut. Ins. Co. v. Am. Family Mut. Ins. Co., 604 N.W.2d 91 (Minn. 2000) ... 19
Klempka v. G. D. Searle & Co., 963 F.2d 168 (8th Cir. 1992) ... 14
Safeway Stores, Inc. v. Certainteed Corp., 710 S.W.2d 544 (Tex. 1986) ... 18
Texas Am. Corp. v. Woodbridge Joint Venture, 809 S.W.2d 299 (Tex. App.-Fort Worth 1991, writ denied) ... 15
Upjohn Co. v. Freeman, 885 S.W.2d 538 (Tex. App.-Dallas 1994, writ denied) ... 15
U.S. Tire-Tech. Inc., v. Boeran, B. V., 110 S.W.3d 194 (Tex. App.-Houston [1st Dist.] 2003, pet. denied) ... 19
Van Dusen v. Barrack, 376 U.S. 612 (1964) ... 12, 14, 19
Wright v. Fowler, 991 S.W.2d 343 (Tex.App.-Fort Worth 1999, no pet.) ... 17
Statutes
28 U.S.C. §1404(a) ... 1, 3, 4, 12
Minn. Stat. Ann. § 541.05 (2007) ... 3
Minn. Stat. § 541.31 (2004) ... 13
Minn. Stat. § 541.32 (2004) ... 13
Minn. Stat. § 541.34 (2004) ... 13
Tex. Civ. Prac. & Rem. Code Ann. § 82.001 (Vernon 2005) ... 15, 18
Tex. Civ. Prac. & Rem. Code § 16.003 (Vernon 2005) ... 15, 16
Tex. Bus. & Comm. Code Ann.§ 2.607 (Vernon 1994) ... 19
Tex. Bus. & Com. Code Ann. §17.41 (Vernon 1987) ... 20
Tex. Bus. & Com. Code Ann. §17.565 (Vernon 1987) ... 20
Rules
Fed. R. Civ. P. 56(c) ... 2
Fed. R. Evid. Rule 201(b) ... 7
Other Authorities
Prefatory Note, Uniform Conflict of Laws-Limitations Act, 12 U.L.A. 156 (2008) ... 13
I.
Summary
This is a products liability case. Plaintiff Paul Burnett alleges that he suffered injuries arising from his use of the prescription drug Reglan or its generic version, metoclopramide, from February 1, 2000 until August 24, 2003.[FN1] Although Plaintiff is a citizen and resident of Texas who “was prescribed, ingested, and was allegedly injured by Reglan(R)/metoclopramide while living in Texas,” he originally sued Wyeth and other manufacturers of brand name Reglan and generic metoclopramide in Minnesota federal district court on December 15, 2006. Burnett v. Wyeth, No. 06-4923 (DWF/SRN), 2008 WL 732425, at * 1 (D. Minn. Mar. 17, 2008) (Wyeth's Appendix in Support of Motion for Summary Judgment [“App.”] at 1-3). “However, there is no question that this action lacks any meaningful connection to Minnesota.” ( Id. at *2). Accordingly, the case subsequently was transferred to the Northern District of Texas pursuant to 28 U.S.C. §1404(a). ( Id. at *3).
FN1. Paul Burnett's spouse, Patricia Burnett, also brings a claim for loss of consortium. Wyeth will refer to Paul Burnett as “Plaintiff” in the singular, and will refer to Patricia Burnett as “Mrs. Burnett.” Plaintiff last took the drugs in August, 2003, not 2005 as alleged in his Complaint. ( See, Section I. B.(2), infra).
Texas law governs the claims of this Texas citizen whose cause of action arose in this state. Texas imposes a two-year statute of limitations upon Plaintiff's personal injury claims. The evidence establishes that Plaintiff knew of the nature of his injury and its alleged cause in November to early December 2004, but by December 8, 2004 at the latest, more than two years before he sued Wyeth on December 15, 2006. His cause of action against Wyeth accrued at that time, and this suit against Wyeth, filed more than two years later, is barred by limitations. Indeed, while the case was pending in Minnesota, Plaintiff conceded that his claims were barred in Texas. Wyeth, therefore, is entitled to summary judgment on Plaintiff's claims.
II.
Summary Judgment Standard
Summary judgment is proper when it appears from the record “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The movant must identify those portions of the pleadings or other evidence that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
Once a proper motion has been made, the nonmoving party must present affirmative evidence, setting forth specific facts, to show the existence of a genuine issue for trial. See Celotex Corp., 477 U.S. at 322-23; Anderson, 477 U.S. at 247-48. “Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to her case on which he bears the burden of proof at trial.” Nebraska v. Wyoming, 507 U.S. 584, 590 (1993).
III.
The Lawsuit
A. History of the Case
On December 15, 2006, Plaintiff and his wife filed suit against Wyeth and other current or former manufacturers of Reglan or generic metoclopramide in the United States District Court for the District of Minnesota. (Plaintiffs Complaint for Damages [Pl.'s Compl.] at 1, Docket No. 1). Plaintiff claimed that his use of the drugs to treat his gastroesophageal reflux disease caused him to develop tardive dyskinesia, a neurological condition that causes uncontrolled body movements. ( Id. at 3). He alleged various products liability claims against the manufacturers, the gravamen of which was that they failed to provide adequate warnings about the risks of the drugs. ( Id. at 7-8, 11-12, 14-30).
Wyeth and another defendant moved to transfer the case to Texas under 28 U.S.C. § 1404(a), as Plaintiff's action had no relation to Minnesota: Plaintiff and his wife were residents and citizens of Texas, their claims arose in Texas, and all of the witnesses were located in Texas. See Burnett, 2008 WL 732425, at *2-3. In response to Wyeth's motion, Plaintiff conceded that the case was filed in Minnesota only because “[t]he statute of limitations had run in Plaintiff Paul Burnett's home state of Texas.” (Plaintiffs' Memorandum in Opposition to Defendant Wyeth and Schwarz Pharma, Inc.'s Motion to Transfer Venue at 3, 19-20; (App. at 7, 23-24).[FN2] Indeed, Plaintiff was frank with the Minnesota federal court that Minnesota was the “last available forum,” and the “only viable forum” for his claims due to Minnesota's longer statute of limitations for personal injury claims. ( Id. at 18, App. at 22).[FN3] Plaintiff asked the Minnesota court either to deny transfer, since “the practical effect [of transfer] ... would be to subject Plaintiffs' claim to dismissal by the Texas courts for failure to meet the statute of limitations,” ( Id. at 19-20; App. at 23-24), or to enter an order that upon transfer, the Minnesota statute of limitations would apply to the transferred case. ( Id. at 4, 18-20; App. at 8, 22-24).
FN2. Plaintiff's concession is an effective admission. See fn. 10, infra.
FN3. The Minnesota statute of limitations is four years for strict liability and breach of warranty claims, Minn. Stat. Ann. § 541.05, subdiv. 2 (2007), and six years for negligence and fraud claims. Minn. Stat. Ann. § 541.05, subdiv. 1 (2007).
On March 17, 2008, the Minnesota district court entered an order transferring the case to the Northern District of Texas pursuant to Section1404(a), finding that the case “lack[ed] any meaningful connection to Minnesota,” and declining to impose the Minnesota statute of limitations in the transferred case. Burnett, 2008 WL 732425, at *2 (App. at 3). Instead, the Minnesota court ruled that the issue of which state's statute of limitations would apply in this case “can be properly decided by the transferee court.” Id. The issue is now before this Court.
B. Undisputed Facts Relevant to Limitations
1. Plaintiffs discovery of his cause of action.
Plaintiff resides in Texas and “was prescribed, ingested, and was allegedly injured by Reglan(R)/metoclopramide while living in Texas.” Burnett, 2008 WL 732425, at * 1; (App. at 2). After Plaintiff suffered a heart attack, Dr. David Bragg prescribed Reglan to Plaintiff to treat his gastroesophageal reflux disease from February 1, 2000 until the last prescription was filled on August 7, 2003. (Deposition of Dr. David Bragg, September 18, 2008 (“Bragg Depo.”) at 44:19-46:20; 125:8-24; App. at 27-28, 30). During this time, Plaintiff was experiencing repeat non-cardiac chest pains, and was taking additional drugs prescribed by Dr. Bragg to treat other medical conditions such as anxiety, depression, and insomnia. (Records of Family Medical Center at North Garland, at FMC-000443-444; App. at 36-37; Bragg Depo. at 46:2-11; App. at 28).
On August 25, 2003, Dr. Bragg discontinued Plaintiffs Reglan prescription after Plaintiff reported that he was gritting his teeth. (Bragg Depo. at 67:13-68:2; App. at 29). At this time, Plaintiff did not attribute these movements to the Reglan. He testified that when Dr. Bragg told him to discontinue the Reglan, the doctor did not discuss the reasons, and Plaintiff did not associate the drug's discontinuation with his movements, or suspect that the drug might be the cause of them. (Deposition of Paul Burnett, July 17, 2008 (“Pl.'s Depo.”) at 199:16-200:19; 274:14-16; 279:13-18, App. at 42, 46-47).
Dr. Bragg confirmed that when he discontinued Plaintiff's Reglan in August 2003, he had not concluded that Reglan was causing Plaintiff's movements, and he did not know whether or not Plaintiff's movements were related to the drug. (Bragg Depo. at 150:11-14; App. at 31). Dr. Bragg thought that Plaintiff's movements might be caused by OCD (Obsessive Compulsive Disorder) or by Restless Leg Syndrome. ( Id. at 151:3-18; App. at 31). Until a neurologist, Dr. P. Terrance Moore, “made a definitive diagnosis [of tardive dyskinesia],” Dr. Bragg did not know what was causing Plaintiff's abnormal movements. ( Id. at 151:19-24).
Thus, Plaintiff maintained in his deposition that he did not suspect in 2003 that his facial movements were related to his use of Reglan, and Dr. Bragg did not make the connection either, considering that Plaintiff's movements might be caused by one of Plaintiffs other medical conditions. Plaintiff testified that he and Dr. Bragg did not even discuss the involuntary movements after he stopped taking Reglan. (Pl's. Depo. at 276:23-277:5; App. at 46).
Over the next almost year and a half, Plaintiffs uncontrolled body movements worsened. ( Id. at 303:18-304:11; 306:14-307:5; App. at 52-53). One day in the Fall 2004, Plaintiff was riding in the car with his wife, a nurse, who commented on his uncontrolled movements. (Pl.'s Depo. at 197:14-198:3; App. at 41-42). On that day, he and Mrs. Burnett undertook an Internet search to try to determine if any of the multiple drugs that Plaintiff had taken could be causing the uncontrolled movements, as Plaintiff believed at that time that “something was causing [the movements].” ( Id.). Mrs. Burnett conducted the Internet search that day, the specific date of which neither she nor Plaintiff could recall. ( Id. at 196:15-21; 198:4-8; 198:12-199:7; 287:4-9; 336:7-10; 336:19-337:1; 337:17-22; App. at 41-42, 49, 56). The Internet search culminated in Plaintiffs learning that he had a neurological condition that he believed was caused by Reglan, for which he sought a referral to a neurologist on December 8, 2004.
In the Internet search, Mrs. Burnett first searched all of Plaintiff's current medications, but none of them showed a relation to movement disorders. Plaintiff then remembered Reglan as a past medication, and asked his wife to search that medication. ( Id. at 198:9-21; App. at 42). Once Mrs. Burnett entered “Reglan” as a search term in the computer and Plaintiff read information about the link between Reglan and tardive dyskinesia, he believed for the first time that Reglan caused his involuntary movements:
Q: Did you and your wife have discussions about the possibility that your tardive dyskinesia may have been caused by metoclopramide before she did the research about law firms?
A: No, just after the Internet.
* * *
When she got on the Internet and it popped up that what I had been on had that side effect-
* * *
Q: Okay. But at that point in time, once your wife had popped that information up on the Internet, did you suspect that your tardive dyskinesia may have been caused or contributed to by your use of metoclopramide or Reglan?
A: Yes, sir.
( Id. at 287:16-288:11; App. at 44-45).
Plaintiff also testified that, through the Internet, he and his wife made contact with a law firm, whose representative called him at his workplace, Haverty's Furniture Store. ( Id. at 258:19-24; 259:17-260:5; 283:8-12; 316:10-22; App. at 45, 48, 54). Pursuant to a request from the law firm to document his uncontrolled movements, in 2004 Plaintiff had a coworker videotape him at the store; the tape has Christmas music playing in the background. ( Id. at 25:2-24; 202:12-203:7; 257:24-260:5; 283:8-12; 284:1-8; 285:8-286:2; 314:22-317:4; App. at 40, 43-45, 48, 54).[FN4] Plaintiff testified that the videotape was made at the “end of 2004,” or the October-November-December 2004 timeframe because there was Christmas music playing at the store. ( Id. at 202:12-203:7; 318:10-16; App. at 43, 55). The store generally did not begin playing Christmas music until “November or after Thanksgiving.” ( Id. at 285:12-286:2; App. at 48-49).[FN5]
FN4. Wyeth also offers the videotape, copied onto CD format, as additional summary judgment evidence. In the background of the tape, the songs “Rudolph the Red-Nosed Reindeer” and “Jingle Bells” are audible. (Videotape of Plaintiff at Haverty's Furniture Store, App. at 59).
FN5. Under Fed. R. Evid. Rule 201(b), the Court may take judicial notice of the fact that Thanksgiving in 2004 was on November 25, 2004. ( See Calendar Page from November 2004, App. at 60). See, e.g., Jenkins v. Orkin Exterminating Co., Inc., 646 F. Supp. 1274 (E.D. Tex. 1986) (court took judicial notice of 1981 calendar).
On December 8, 2004, Plaintiff then contacted Dr. Bragg to seek a referral to a neurologist, whom Plaintiff and his wife saw less than ten days later, after they already had concluded that Plaintiff had Reglan-induced tardive dyskinesia. (Deposition of Mrs. Burnett, September 18, 2008 (“Mrs. Burnett's Depo.”) at 114:12-115:7: App. at 68; Bragg Depo. at 161:18-162:4; App. at 32-33).
While Plaintiff was unable to remember the specific dates of either the Internet search or the subsequent contacts he had with attorneys about his use of Reglan, Mrs. Burnett was able to narrow this time to November-December 2004, but before December 8, 2004. Mr. Burnett testified at his deposition that his wife has a better recall of facts than he does. (Pl.'s Depo. at 357:7-10; App. at 57). Mrs. Burnett is a retired registered nurse and former legal secretary for a state appeals court judge (Mrs. Burnett's Depo. at 35:23-36:2; 184:23-185:3; App. at 65, 71). It was she who conducted the Internet search after she and her husband became suspicious that his involuntary movements might be related to one of the drugs that he had taken. (Mrs. Burnett's Depo. at 108:24-109:10; 109:19-110:12, App. at 66-67). She described the Internet search she conducted, and confirmed that when she entered the name “Reglan” into the computer and retrieved information, this was the first time that she or her husband learned that the drug could be associated with tardive dyskinesia ( Id. at 109:19-112:1) (App. at 66-67):
Q: And how did you conduct the search?
A: Put the name of the drug in the search machine, the search area. It came up, click down on different sites that-and I don't know which ones-and the drug came up with the side effects and what it's supposed to do. That was the first time that I'd really ever heard of tardive dyskinesia. I'd not heard about it when I was working....
* * *
Q: And this was the first time you learned that metoclopramide was associated with tardive dyskinesia?
A: Yes, I believe so.
Q: Was this before Paul saw Dr. Moore [on December 17, 2004]?
A: I want to say yes.
Q: So when you went in to see Dr. Moore, you already knew about the possible association?
A: Yes.
Q: And before you did this Internet research, did you know that metoclopramide had been associated with any type of movements, setting aside the actual term “tardive dyskinesia”?
A: No.
* * *
Q: So the first time you thought about it was when you did the Internet research?
A: Yes.
Q: That's the first time you made the connection?
A: Yes.
Q: Is that the first time, as far as you're aware, that Paul made the connection?
A: I believe so.
* * *
Q: Was this a surprise to both of you?
A: I believe so, yes.
Q: Did you discuss it with anyone else?
A: I don't remember.
Q: Did you call any of his doctors about it?
A: I don't -- I think not.
Q: Is that what led you to make the appointment with Dr. Moore?
A: Paul, I believe, spoke with Dr. Bragg, and I believe that's what led to Dr. Moore.
Q: Okay. Is the Internet research what led Paul to talk to Dr. Bragg about seeing a neurologist?
A I don't know. I would have to say yes, because I don't - but I don't know.
Q: Is that the first time either of you understood that what he had was a neurological condition?
A: That's when it hit the fan, yes. That's when the lights went on that “This is what you have, Paul, and this is the reason that you have this is a result of taking this medication over such a period of time.”
( Id. at 109:19-110:3; 110:21-111:12; 111:17-112:1; 114:5-115:7; App. at 66-68). When Mrs. Burnett and her husband discovered the association between Reglan and tardive dyskinesia, a neurological condition, it was a surprise to them. ( Id. at 113:21-114:6; App. at 67-68). Mrs. Burnett did not save anything or print any materials from the Internet search. ( Id. at 17:11-18:1; App. at 63-64).
At the time of the Internet search, Mrs. Burnett also located and contacted a law firm through the Internet, Martin & Jones, about her husband's use of Reglan and his tardive dyskinesia. (Mrs. Burnett's Depo. at 115:8-14; 116:4-7; 117:14-20; 177:11-14, App. at 68, 70). While she could not recall the exact date she contacted the law firm, Mrs. Burnett had contacted the lawyers before she and her husband saw Dr. Moore on December 17, 2004. ( Id. at 111:3-6; 115:17-21, App. at 67-68). Mrs. Burnett believed that she contacted the law firm “fairly soon,” within “a short time frame” after she and her husband learned that Reglan might be responsible for his tardive dyskinesia. ( Id. at 118:12-120:1; App. at 69). A representative of Martin & Jones then contacted Plaintiff at his place of work at Haverty's furniture store. ( Id. at 117:21-118:1; App. at 68-69). It was the law firm that asked Plaintiff to make the Haverty's Christmas videotape. ( Id. at 117:21-118:15; App. at 68-69). Mrs. Burnett concurred with her husband that the likely date for the videotaping of him at Haverty's store was in November to December, 2004, due to the Christmas music playing in the background of the tape. ( Id. at 116:20-117:9; App. at 68). If the videotape was made in November or December 2004, then Mrs. Burnett would have contacted the law firm a “short time” before. ( Id. at 119:17-120:1; App. at 69).
Then on December 8, 2004, the information that Plaintiff obtained from the Internet search about his neurological injury and its cause culminated in his decision to seek neurological treatment. On that date, Plaintiff called Dr. Bragg's office to seek a referral to a neurologist to evaluate his involuntary movements, now believing that they were drug-related neurological symptoms. Plaintiff then saw the neurologist, Dr. P. Terrance Moore, on December 17, 2004. (Bragg Depo. at 161:18-164:2; App. at 32-33). While Mrs. Burnett did not recall the precise date of the Internet search, she believed that the Internet search might have led Plaintiff to contact the neurologist, for she and her husband certainly knew of the link between tardive dyskinesia and Reglan before that visit. (Mrs. Burnett's Depo. at 111:3-6; 114:12-115:7; App. at 67-68). Dr. Moore diagnosed Plaintiff with likely drug-induced tardive dyskinesia (Bragg Depo. at 163:17-164:2; App. at 33). Thus, by December 8, 2004, the date that Plaintiff sought a referral to a neurologist, he was aware of the facts regarding his injury and its relation to Reglan.
2. Plaintiffs use of Wyeth's drugs.
Plaintiff took metoclopramide or brand name Reglan sold by Wyeth under the names of A.H. Robins Company, Inc. and ESI Lederle, Inc., from February 1, 2000 until February 19, 2002.[FN6] (Pl.'s Depo. at 292:5-16; App. at 50; Records attached to Plaintiffs Notice of Product Identification Obtained from Albertson's Pharmacy Archives at Bates Nos. PROD. ID. 10-11, 14-15, 17, 20-21; App. at 82-83, 86-87, 89, 92-93).[FN7] Plaintiff last purchased metoclopramide sold by Wyeth on February 19, 2002. ( Id. at 21; App. at 93). After February 19, 2002 until Plaintiff stopped the medication in August 2003, he took drugs manufactured by co-defendants Teva Pharmaceuticals, Inc. or Pliva, Inc. ( Id. 21, 23-24, 27-28, 30; App. at 93, 95-96, 99-100, 102).
FN6. In 1998, A.H. Robins Company, Inc. was merged into American Home Products Corporation (AHPC), which is now known as Wyeth. ESI Lederle, Inc. is a former division of AHPC.
FN7. These records were produced by Plaintiff and attached to Plaintiffs Notice of Product Identification, Docket No. 22, in Civil Action No. 06-4923 (DWF/SRN) while the case was pending in the United States District Court for the District of Minnesota.
IV.
Wyeth Is Entitled to Summary Judgment on All Plaintiffs Claims
A. The Texas Statute of Limitations Applies to this Case.
Plaintiff is a resident and citizen of Texas; he was prescribed the drugs in Texas and took the drugs in Texas. Burnett, 2008 WL 732425, at * 1. All the events in this case occurred in Texas and, as the Minnesota transferor court found, the case “lacks any meaningful connection to Minnesota.” Id. at *2.
In Van Dusen v. Barrack, 376 U.S. 612 (1964), the Supreme Court held that when a federal court grants a transfer of venue under 28 U.S.C. §1404(a), the transferee court must apply the choice-of-law rules that the transferor court would have applied had the case not been transferred. ( Id. at 639.) Thus, this Court must apply the law to this case that the Minnesota court would have applied had there been no venue transfer.
The Minnesota court would have applied the Texas limitations period to this case had it not been transferred. Minnesota has adopted the Uniform Conflict of Laws-Limitations Act, codified at sections 541.30 through 541.35 of the Minnesota Statutes. That Act originally was drafted and proposed by the National Conference of Commissioners on Uniform State laws in an effort to discourage “forum shopping” by plaintiffs seeking to file lawsuits in jurisdictions generally unrelated to their claims to take advantage of those jurisdictions' more generous limitations periods. See Prefatory Note, Uniform Conflict of Laws-Limitations Act, 12 U.L.A. 156 (2008). Section 541.31 of the Minnesota law provides:
Subdivision 1. General. (a) ... [I]f a claim is substantively based:
(1) upon the law of one other state, the limitation period of that state applies ...[FN8]
FN8. The statute provides exceptions if the plaintiff resides in Minnesota, or the law of the other state provides no fair opportunity to sue; neither of these exceptions apply here.
Minn. Stat. § 541.31 (2004). If another state's law applies, so do its accrual rules for the cause of action. See Id. at § 541.32.
The Minnesota “borrowing” statute applies to claims arising on or after August 1, 2004. Minn. Stat. § 541.34 (2004). Thus, if this Texas plaintiff's claims arose after August 1, 2004, then the Minnesota Uniform Conflict of Laws-Limitations Act, which “borrows” the Texas limitations statute for a claim substantively based on Texas law, will apply here. If applicable, the borrowing statute would require the Minnesota transferor court to apply Texas limitations law to this case.
Plaintiffs claims arose after August 1, 2004, and thus, the borrowing statute applies. In a personal injury case involving allegedly defective products, a plaintiffs claim accrues when he has “(1) a cognizable physical manifestation of the disease or injury, and (2) evidence of a causal connection between the injury or disease and the defendant's product, act, or omission.” Klempka v. G. D. Searle & Co., 963 F.2d 168, 170 (8th Cir. 1992) (quoting Hildebrandt v. Allied Corp., 839 F.2d 396, 398 (8th Cir. 1987)) (applying Minnesota law). As set forth above, Plaintiff knew of his injury and its alleged causal connection to Reglan in November 2004 to early December 2004, at the latest by December 8, 2004. ( See Section I. B. (1), supra). His cause of action accrued at that time, well after the August 1, 2004 effective date of the Uniform Conflict of Laws-Limitations Act. Accordingly, the Minnesota transferor court would apply the Minnesota statute's “borrowing provision” in section 541.31 and determine the timeliness of Plaintiffs suit based on the applicable Texas' statute of limitations. Because the transferor court would have applied Texas limitations law to the case, this Court must do so as well under Van Dusen.
B. Plaintiff's Claims Are Barred By Texas' Statute of Limitations
1. Plaintiffs claims.
Plaintiff has alleged causes of action for strict liability, negligence, negligent misrepresentation, fraud, breach of warranty, and for violation of the Minnesota Consumer Protection Act. (Plaintiffs Amended Complaint (“Pl.'s Am. Compl.”) at 19, 24, 29, 31, 37, 38, 42 and 44 (Docket No. 22)).[FN9] Under Texas law, all of Plaintiff's claims are “products liability” claims. Section 82.001(2) of the Texas Civil Practice and Remedies Code provides that:
FN9. Plaintiff amended his Complaint on April 13, 2007. (Docket No. 22).
“Products liability action” means any action against a manufacturer or seller for recovery of damages arising out of personal injury ... allegedly caused by a defective product whether the action is based in strict tort liability, strict products liability, negligence, misrepresentation, breach of express or implied warranty, or any other theory or combination of theories.
Tex. Civ. Prac. & Rem. Code Ann. § 82.001(2) (Vernon 2005).
2. Plaintiffs tort claims are barred.
Plaintiff's strict liability, negligence, and negligent misrepresentation claims are subject to the two-year statute of limitations applicable to personal injury claims. Tex. Civ. Prac. & Rem. Code § 16.003(a); see, e.g., Upjohn Co. v. Freeman, 885 S.W.2d 538, 541 (Tex. App.-Dallas 1994, writ denied) (holding two-year limitations period applies to negligence and strict products liability claims as well as family members' corresponding consortium claims); Texas Am. Corp. v. Woodbridge Joint Venture, 809 S.W.2d 299, 302 (Tex. App.-Fort Worth 1991, writ denied) (holding negligent misrepresentation claims are “governed by the two-year statute of limitations applicable to tort actions”). The “discovery rule” may extend limitations for a plaintiff who could not have discovered his legal injury within two years of use of the product; limitations under the “discovery rule” then begins to run when the plaintiff discovers the nature of his injury and its likely cause. Childs v. Haussecker, 974 S.W. 2d 31, 40 (Tex. 1999) (holding under discovery rule, accrual of cause of action is tolled until a claimant discovers or in exercise of reasonable diligence should have discovered the injury and that it was likely caused by the wrongful acts of another.)
Plaintiff and Mrs. Burnett testified that they discovered the nature of Plaintiff's injury, tardive dyskinesia, and its link to Reglan when they conducted the Internet search in Fall, 2004. Thereafter, Mr. Burnett contacted attorneys on Plaintiff's behalf, and pursuant to instructions from this counsel, Plaintiff made the Haverty's videotape in November-December 2004. On December 8, 2004, Plaintiff asked his doctor for a referral to a neurologist, by this time aware that he had a neurological condition and believing that it was caused by Reglan. By the time that Plaintiff and his wife went to see Dr. Moore in mid-December, 2004, they already believed that Plaintiff had Reglan-induced tardive dyskinesia. They knew the elements of their claims by the time that Plaintiff sought neurological treatment on December 8, 2004. Thus, more than two years before Plaintiff filed suit in Minnesota on December 15, 2006, Plaintiff knew all the elements of his claim necessary to start limitations running, but he did not sue within those two years; he conceded in Minnesota federal court that this was fatal to his claim under Texas law.[FN10] Accordingly, Plaintiffs tort claims, filed more than two years after his cause of action accrued, are barred by limitations under section 16.003(a).
FN10. Plaintiff's concession is an effective admission that his claims accrued (i.e., that he knew or should have known of his injury and its likely cause) prior to December 15, 2004. This amounts to a judicial admission which is conclusively binding on Plaintiff. See Davis v. A.G. Edwards & Sons, Inc., 823 F.2d 105, 107-08 (5th Cir. 1987) (holding that judicial admission in pleading that plaintiffs were cognizant of facts upon which their claim was based more than two years before filing suit gave rise to limitations bar). “Facts that are admitted in pleadings ‘are no longer at issue.’ ” Id. at 108 (quoting Ferguson v. Neighborhood Housing Serv., Inc., 780 F.2d 549, 551 (6th Cir. 1986)). Plaintiff therefore should be precluded from contradicting his prior admissions. Id.
Although Plaintiff includes two claims titled “Fraud” in his Amended Complaint ( Id. at 37, 42), the gravamen of these claims is that the manufacturers failed to warn about the risks of Reglan, or misrepresented the risks of the drugs.[FN11] In such circumstances, the claims are treated as tort claims, since “it is the essence of the cause of action that controls, not what a pleader might choose to call it.” Martz v. Weyerhaeuser Co., 965 S.W.2d 584, 588 (Tex. App.-Eastland, 1998, no pet.) (holding that where cause of action for personal injury sounds in tort, fraud claims are treated as other personal injury tort claims subject to two-year limitations period). A plaintiff may not recast his claim in the language of another cause of action, or give it a new title, to avoid limitations, or compliance with mandatory statutes, or to circumvent existing case law contrary to his position. See Earle v. Ratliff, 998 S.W.2d 882, 893 (Tex. 1999) (finding gist of plaintiffs claims was that defendant was negligent by not holding to applicable standard of care, regardless of the fact that claims were phrased and labeled as DTPA causes of action); Hodge v. Northern Trust Bank of Texas, N.A., 54 S.W.3d 518 (Tex.App.-Eastland 2001 pet. denied)(holding plaintiff may not re-cast nature of his banking claim to avoid statute of limitations for conversation); Wright v. Fowler, 991 S.W.2d 343, 352 (Tex.App.-Fort Worth 1999, no pet.) (holding plaintiff cannot recast health care liability claim in language of another cause of action to avoid statute of limitations); In re Kimball Hill Homes Texas, Inc., 969 S.W.2d 522, 526 (Tex.App.-Houston [14th Dist.] 1998, orig. proceeding) (holding underlying nature of claim controls and plaintiff cannot, by artful pleading, recast claim in order to avoid adverse effect of statute); Martz, 965 S.W.2d 584, 589 (concluding plaintiff may not simply recast tort claim as fraud so it will not be statutorily barred); Herter v. Wolfe, 961 S.W.2d 1, 5 (Tex.App.-Houston [1st Dist.] 1995, writ denied) (holding appellant's claims for breach of fiduciary duty are same claims raised in breach of contract suit, merely recast as breach of fiduciary duty). Thus, the claims that Plaintiff entitles “Fraud” claims are treated as personal injury products liability claims, with the same two-year limitations period as the other torts he has pled, and they are barred as well.
FN11. Moreover, fraudulent concealment ( Id. at 42) is not a cause of action under Texas law, but an affirmative defense. Bordelon v. Peck, 661 S.W.2d 907, 908 (Tex. 1983).
3. Plaintiffs breach of warranty claims are barred.
Plaintiff's claims for breach of warranty (Pl's Am. Compl. at 44; Docket No. 18) also are product liability claims under section 82.001(2), recast as non-tort claims. Review of these claims reveals that they are merely failure-to-warn claims, too ( i.e. that the manufacturers of the drugs failed to provide accurate information about the risks of the drugs). ( Id. at 44-45). Accordingly, limitations for these claims is governed by section 16.003(a)'s two-year statute and they are barred as well. See, e.g., Martz, 965 S.W.2d 584, 588-89.
But even if these claims were treated as non-tort claims, they still are barred. While limitations for a legitimate breach of warranty claim is four years, Certain-Teed Prods. Corp. v. Bell, 422 S.W.2d 719, 721 (Tex. 1968), the claim accrues upon the delivery of the product that allegedly caused injury. Safeway Stores, Inc. v. Certainteed Corp., 710 S.W.2d 544, 545-47 (Tex. 1986). There is no discovery rule for breach of warranty claims. Id. at 546. Plaintiff last received the drugs marketed by Wyeth's predecessor companies on February 19, 2002. ( See Section II. B. (2), supra). Thus, limitations for a breach of warranty claim began to run on that date, and expired four years later on February 19, 2006. See Bell v. Showa Denko K.K., 899 S.W. 2d 749, 755-56 (Tex. App.-Amarillo 1995, writ denied) (holding limitations for breach of warranty claim runs from date of last sale of product).
Plaintiff's suit, filed on December 15, 2006, is untimely, as he conceded in his pleadings filed in Minnesota federal court; his breach of warranty claim is barred by the four-year statute of limitations.[FN12]
FN12. Plaintiff's breach of warranty claims are barred for another reason as well--Plaintiff admitted at his deposition he had not given notice to the companies of his claim before filing suit, as is required to maintain the claim. (Pl.'s Depo. at 295:24-296:3; App. at 51). See, Martin v. Home Depot U.S.A. Inc., 369 F.Supp.2d 887, 893 (W.D. Tex. 2005) (citing Tex. Bus. & Comm. Code Ann.§ 2.607(c)(1) (Vernon 1994) (holding buyer must notify seller within reasonable time after he discovers breach of warranty or be barred from remedy)); U.S. Tire-Tech. Inc., v. Boeran, B. V., 110 S.W.3d 194, 199 (Tex. App.-Houston [1st Dist.] 2003, pet. denied) (holding presuit notice requirement is condition precedent to cause of action for breach of warranty).
4. Plaintiff's unfair trade practices claim is barred.
Plaintiff has no cause of action under the Minnesota Consumer Protection Act. (Pl.'s Am. Compl. at 38; Docket No. 22). Since Van Dusen v. Barrack, 376 U.S. 612 (1964) requires the Court to apply the substantive state law that the transferee court in Minnesota would have applied had there been no venue transfer, this Court must use Minnesota's choice-of-law rules to make the determination whether substantive Minnesota or Texas law applies here.
Minnesota applies the “significant contacts test” to determine which jurisdiction's substantive law will apply, Nodak Mut. Ins. Co. v. Am. Family Mut. Ins. Co., 604 N.W.2d 91, 94 (Minn. 2000), and federal courts applying this test have held that in a personal injury, products liability case, the law of the venue where the plaintiff resides and where the events giving rise to the lawsuit occurred should apply. Nesladek v. Ford Motor Co., 46 F.3d 734, 738-41 (8th Cir. 1995) (holding Nebraska substantive law applicable under Minnesota's choice-of-law rules in product liability wrongful death lawsuit where injuries and almost all other events giving rise to the lawsuit occurred in Nebraska); In re Baycol Prods. Litig., 218 F.R.D. 197, 207 (D. Minn. 2003) (holding that the law of the state of the plaintiffs' residence and location of their injuries was applicable under Minnesota's choice-of-law rules in prescription drug product liability litigation). As the Minnesota district court stated in its transfer order, “... this case bears little or no connection to Minnesota.... There is no question that this action lacks any meaningful connection to Minnesota.” Burnett, 2008 WL 732425, at * 1-2. Because Texas law applies to this case, Plaintiff has no claim under the Minnesota statute. The law of Texas, the location of Plaintiff's residence and the place where he received and took the drugs, applies to this case transferred from Minnesota. ( See Section IV. A., supra).
Even if Plaintiff instead made a claim under the Texas Deceptive Trade Practices Act (DTPA), Tex. Bus. & Com. Code Ann. §17.41 et seq. (Vernon 1987), that claim would be barred under this statute as well. The statute of limitations for a claim under the DTPA is two years either from when the deceptive act occurred, or from the consumer's discovery of the deceptive act. Tex. Bus. & Com. Code Ann. § 17.565; see Bell v. Showa Denko K.K., 899 S.W. 2d 749, 753-54 (Tex. App.-Amarillo 1995, writ denied) (holding limitations for DTPA claim begins to run, under discovery rule, when plaintiff acquires knowledge of facts which would cause a reasonable person to make inquiry leading to cause of action). Plaintiff acknowledged that after Mrs. Burnett conducted the Internet search in November-December 2004, he believed on that day both that he likely had tardive dyskinesia and that it was related to his Reglan use. On December 8, 2004, he sought treatment by a neurologist for what he believed was a neurological injury. Thus, limitations for any potential DTPA claim began to run at the time of the Internet search in the Fall 2004, at the latest by December 8, 2004, and expired before he sued on December 15, 2006.
V.
Conclusion and Request for Relief
Plaintiff's claims, however cast and however pled, are barred by the Texas statute of limitations, as Plaintiff conceded in the Minnesota federal court. Thus, this Court should grant summary judgment on all his claims against Wyeth.
Respectfully submitted,
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