Atkinson v. Forest Research Inst., Inc.

• Decision Date: 18 June 2014
• Docket Number: Civil No. 13-1832,Civil No. 13-4703 (RBK/AMD)
• Citation: Atkinson v. Forest Research Inst., Inc., Civil No. 13-1832, Civil No. 13-4703 (RBK/AMD) (D. N.J. Jun 18, 2014)
• Parties: ERICA J. ATKINSON, Individually and as the Representative of the Estate of Sophia Cowan, Deceased, Plaintiffs, v. FOREST RESEARCH INSTITUTE, INC., FOREST LABORATORIES, INC., FOREST PHARMACEUTICALS, INC., Defendants,
• Court: U.S. District Court — District of New Jersey

ERICA J. ATKINSON, Individually andas the Representative of the Estate ofSophia Cowan, Deceased, Plaintiffs, v. FOREST RESEARCH INSTITUTE,INC., FOREST LABORATORIES, INC.,FOREST PHARMACEUTICALS, INC., Defendants,

Civil No. 13-1832

Civil No. 13-4703 (RBK/AMD)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE

Dated: June 18, 2014

NOT PRECEDENTIAL

(Doc. Nos. 6, 10)

OPINION

KUGLER, United States District Judge:

This matter comes before the Court on Defendants Forest Research Institute, Inc., Forest Laboratories, Inc., and Forest Pharmaceuticals, Inc.'s Motion to Dismiss Plaintiffs' Complaint for failing to timely commence this suit within the applicable statute of limitations. Although the Defendants do not specifically reference a provision of the Federal Rules of Civil Procedure in support of their motion, the Court construes their motion as falling under Fed. R. Civ. P. 12(b)(6). For the reasons stated herein, the Court will DENY Defendants' motion.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The decedent, Sophia Cowan, was born in the State of Indiana on July 14, 2011, with atrioventricular canal defects. (Compl. ¶ 2.) Several weeks later, on August 7, 2011, Sophia died as a result of these complications. (Id.) Plaintiffs allege that Sophia's cardiac birth defectsand resulting death were due to her mother's, Erica Akinson's, ingestion of "Lexapro and/or Celexa during the course of her pregnancy pursuant to a doctor's prescription (hereinafter, "Mother Plaintiff"). (Id. ¶ 22.) Mother Plaintiff is also a citizen of Indiana. (Id. ¶ 1.)

Defendants Forest Research Institute, Inc., Forest Laboratories, Inc., and Forest Pharmaceuticals, Inc. (collectively referred to in Plaintiffs' Complaint as "Forest"), are alleged to be the pharmaceutical companies "involved in developing, labeling, marketing, monitoring, performing regulatory compliance and reporting, performing and/or participating in clinical trials, performing drug surveillance, researching and testing of pharmaceuticals for distribution, sale, and use by the general public, including the drug Lexapro." (Id. ¶ 17.)

On August 2, 2013, Mother Plaintiff filed suit in this Court individually, and as the representative of Sophia's estate, invoking this Court's jurisdiction under 28 U.S.C. § 1332, and asserting the following claims: (1) strict liability - failure to warn; (2) strict product liability - design defect; (3) negligence; (4) negligent pharmaco-vigilance; (5) negligent design; (6) breach of express warranty; (7) breach of implied warranty; (8) fraud; (9) loss of consortium and pecuniary loss; (10) negligent infliction of emotional distress; (11) punitive damages; (12) wrongful death; and (13) a survival action. It appears that Mother Plaintiff seeks relief on her own behalf for her personal injuries, on behalf of Sophia's estate for Sophia's injuries by way of a survival cause of action, and on behalf of Sophia's heirs by way of a wrongful death cause of action.

On November 4, 2013, Defendants filed the instant Motion to Dismiss. (Doc. No. 6.) After the parties completed briefing, Plaintiffs filed their Unopposed Motion for Leave to File Sur-Reply in Opposition to Defendants' Motion to Dismiss. (Doc. No. 10.) As Plaintiffs'motion remains unopposed, the Court will GRANT that motion and turn to Defendants' Motion to Dismiss.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss an action for failure to state a claim upon which relief may be granted. With a motion to dismiss, "courts accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (internal quotations omitted). In other words, a complaint survives a motion to dismiss if it contains sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

A claim may be dismissed as untimely under Rule 12(b)(6) if "the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations." Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002) (quoting Hanna v. U.S. Veterans' Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir. 1975)). The statutory bar must be "apparent on the face of the complaint" in order to form the basis for a dismissal under Rule 12(b)(6). Bethel v. Jendoco Constr. Corp., 570 F.2d 1168, 1174 (3d Cir. 1978). See also Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.1 (3d Cir. 1994) ("While the language of Fed. R. Civ. P. 8(c) indicates that a statute of limitations defense cannot be used in the context of a Rule 12(b)(6) motion to dismiss, an exception is made where the complaint facially shows noncompliance with the limitations period and the affirmative defense clearly appears on the face of the pleading.").

III. DISCUSSION¹

Defendants argue that Plaintiffs' wrongful death claims are time barred because Indiana law, rather than New Jersey law, governs this action and Plaintiffs failed to comply with Indiana's commencement rules such that the applicable limitations period expired. (Defs.' Br. 2-10.)

Plaintiffs respond that New Jersey law applies to their claims and because they complied with New Jersey's commencement rules their claims are timely. (Pls.' Opp'n Br. 9-14.)

A. Choice of Law Analysis

"In a diversity case filed in New Jersey, New Jersey choice of law rules govern." Yocham v. Novartis Pharms. Inc., 736 F. Supp. 2d 875, 880 (D.N.J. 2010). Under New Jersey law, a court must first determine if an actual conflict of law exists, Gray v. Bayer Corp., No. 08-4716, 2011 WL 2975768, at *2 (D.N.J. July 21, 2011), which is done "by examining the substance of the potentially applicable laws to determine whether there is a distinction between them," P.V. ex re T.V. v. Camp Jaycee, 962 A.2d 453, 460 (N.J. 2008) (quoting Lebegern v. Forman, 471 F.3d 424, 430 (3d Cir. 2006) (internal quotation marks omitted)). "Once it has been determined that a conflict exists, the court must then determine which state has the 'most significant relationship' to the claim at issue, as analyzed under the Restatement (Second) Conflict of Laws." Gray, 2011 WL 2975768, at *2 (citing Camp Jaycee, 962 A.2d at 460).

Where the conflict of laws analysis results in the application of the substantive law of another jurisdiction, New Jersey also "borrows" the statute of limitations from that jurisdiction. Warriner v. Stanton, 475 F.3d 497, 500 n.2 (3d Cir. 2007) (citing Heavner v. Uniroyal, Inc., 305

A.2d 412, 418 (1973)); see also Clark v. Prudential Ins. Co. of Am., No. 08-6197, 2009 WL 2959801, at *4 (D.N.J. Sept. 15, 2009).

Here, there is a distinction between New Jersey and Indiana's survival and wrongful death laws.

Indiana's survival statute provides that "if an individual who has a personal injury claim or cause of action dies, the claim or cause of action does not survive—unless the individual dies from causes other than those personal injuries." Technisand, Inc. v. Melton, 898 N.E.2d 303, 305 (Ind. 2008) (citing I.C. § 34-9-3-1(a)(6) and holding that because claim was that decedent died from personal injuries allegedly caused by one of the defendants, once decedent died, claim brought by husband was one for wrongful death and thus subject to the two-year statute of limitations governing wrongful death claims regardless of the underlying tort). Accordingly, where an individual dies from causes stemming from his or her personal injuries, that personal injury claim or cause of action must be brought as a wrongful death claim. See Am. Int'l Adjustment Co. v. Galvin, 86 F.3d 1455, 1457-58 (7th Cir. 1996). As the Seventh Circuit noted in Galvin,

[this] [ ] distinction is important because each statue allows for different recoveries. In a case governed by the survival statute, [a decedent's] [ ] estate could receive full damages including pain and suffering. Under the wrongful death statute, the estate could recover only the [decedent's] [ ] medical and funeral expenses plus any other pecuniary or other loss suffered by her survivors.

Id.; see also Newkirk v. Bethlehem Woods Nursing & Rehab. Ctr., LLC, 898 N.E.2d 299, 300-301 (Ind. 2008) (summarizing precedent dealing with a wrongful death claim based on medical malpractice and stating that "[i]f the death was caused by the malpractice, (a) the malpractice claim (whether brought by the patient or another as the representative of the patient) terminatesat the patient's death . . . and (b) a wrongful death claim must be filed within two years of the occurrence of the malpractice").

Comparatively, in New Jersey, wrongful-death actions and survival actions can be brought simultaneously, regardless of the cause of death. The Supreme Court of New Jersey has observed that both statutory schemes serve different purposes and are designed to provide a remedy to different parties. See Smith v. Whitaker, 734 A.2d 243 (N.J. 1999). The Wrongful Death Act is meant to "compensate survivors for the pecuniary losses they suffer because of the tortious conduct of others," i.e., it is a "derivative action arising in favor of beneficiaries named under [the] act." Smith, 734 A.2d at 248-49 (quoting Alexander v. Whitman, 114 F.3d 1392, 1398 (3d Cir. 1997). The Survival Act "preserves to the decedent's estate any personal cause of action that decedent would have had if he or she had survived." Id. (citing N.J. Stat. Ann. § 2A:15-3). "Thus, the Wrongful Death Act benefits the heirs of the decedent, while the Surviv[al] Act provides a remedy to a decedent's executor or administrator." Galante v. May, 835 A.2d 352, 355 (N.J. Super. Ct. App. Div. 2003).

Due to this difference, the Court finds that there is a conflict...