Baughn v. Eli Lilly and Co.

• Decision Date: 04 February 2005
• Docket Number: No. CIV.A.03-2626-KHV.,CIV.A.03-2626-KHV.
• Citation: 356 F.Supp.2d 1166
• Parties: Barbara BAUGHN and Derek Baughn, Plaintiffs, v. ELI LILLY AND COMPANY, Defendant.
• Court: U.S. District Court — District of Kansas

356 F.Supp.2d 1166

Barbara BAUGHN and Derek Baughn, Plaintiffs, v. ELI LILLY AND COMPANY, Defendant.

No. CIV.A.03-2626-KHV.

United States District Court, D. Kansas.

February 4, 2005.

Patricia M. Stanford, Jacksonville, FL, Peter S. Obetz, Stephen M. Gorny, Bartimus, Frickleton, Robertson, & Obetz, P.C., Leawood, KS, for Plaintiffs.

David W. Brooks, Mark C. Hegarty, John F. Kuckelman, Shook, Hardy & Bacon L.L.P., Kansas City, MO, for Defendant.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Barbara and Derek Baughn filed this product liability action against Eli Lilly and Company. Plaintiffs allege that Barbara Baughn suffered injuries because her mother took diethylstilbestrol ("DES"), a prescription drug, during her pregnancy with Barbara in 1964 and 1965. This matter is before the Court on Defendant Eli Lilly And Company's Renewed Motion For Summary Judgment On Statute Of Repose Grounds (Doc. # 55) filed November 12, 2004. For reasons stated below, defendant's motion is overruled.

Summary Judgment Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505.

The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

"[W]e must view the record in a light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.

Factual Background

The following facts are uncontroverted, deemed admitted or, where disputed, viewed in the light most favorable to plaintiffs.

Barbara Baughn, who was born on August 19, 1965 in Chanute, Kansas, has lived in Kansas her entire life. Barbara's mother also lived in Kansas, where she purchased and took DES during her pregnancy with Barbara. Barbara claims that as a result of her exposure to DES in utero, she suffered pregnancy complications, pregnancy losses and infertility for which she sought medical treatment in Kansas. Barbara did not learn of her claim against defendant until late 2001. On May 8, 2003, Barbara and Derek Baughn, her husband, filed suit against Eli Lilly in the United States District Court for the District of Columbia. On November 7, 2003, pursuant to 28 U.S.C. § 1404(a), that court transferred its case to this Court.

Analysis

I. Choice Of Law

Where a case is transferred for the convenience of parties and witnesses under Section 1404(a), the transferee court must follow the choice of law rules of the transferor court. Viernow v. Euripides Dev. Corp., 157 F.3d 785, 793 (10th Cir.1998); see Van Dusen v. Barrack, 376 U.S. 612, 635-37, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964); Benne v. Int'l Bus. Machs. Corp., 87 F.3d 419, 423-25 (10th Cir.1996). Under Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), a federal court in the District of Columbia would apply the same statute of limitations that a District of Columbia court would apply. See Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 114 n. 11 (D.C.Cir.1982). Under District of Columbia choice of law principles, the laws of the forum apply to matters of procedure and unless the limitation is part of the cause of action itself, a limitation on the time of suit is procedural and is governed by the law of the forum. Huang v. D'Albora, 644 A.2d 1, 4 (D.C.1994); May Dep't Stores Co., Inc. v. Devercelli, 314 A.2d 767, 773 (D.C.App.1973) (statute of limitations is procedural); A.I. Trade Fin., Inc. v. Petra Int'l Banking Corp., 62 F.3d 1454, 1458 (D.C.Cir.1995) (D.C. treats statute of limitations as procedural and applies its own rule). The parties do not address the relevant District of Columbia statute of limitations, but it is three years. See D.C.Code § 12-301(8).

The parties and the Court agree that Kansas substantive law applies in this case.¹ The Court must address, however, whether under District of Columbia choice of law principles, the relevant Kansas statute — K.S.A. § 60-513(b) — is substantive or procedural. To answer this question, the Court must initially determine whether to apply Kansas or District of Columbia law. District of Columbia courts have not directly addressed this question, but they have consistently followed other states' interpretations as to whether their own statutes which contain periods of limitations are substantive or procedural. See Huang v. D'Albora, 644 A.2d 1, 4 (D.C.1994); Fowler v. A & A Co., 262 A.2d 344, 347 (D.C.1970); see also Ekstrom v. Value Health, Inc., 68 F.3d 1391 (D.C.Cir.1995); Jaffe v. Pallotta Teamworks, 276 F.Supp.2d 102, 107-08 (D.D.C.2003), rev'd on other grounds, 374 F.3d 1223 (D.C.Cir.2004); Int'l Techs. Integration, Inc. v. Palestine Liberation Org., 66 F.Supp.2d 3, 9-10 (D.D.C.1999).² Accordingly, the Court finds that the District of Columbia would defer to the classification of K.S.A § 60-513(b) by Kansas courts. Cf. Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70, 76, 121 S.Ct. 471, 148 L.Ed.2d 366 (2000) (federal court generally defers to state court interpretation of its own state statutes).

II. K.S.A. § 60-513(b) As Substantive Law

The Kansas Supreme Court has held that the ten-year provision in Section 60-513(b) is a statute of repose and, as such, substantive law. See Harding v. K.C. Wall Prods., Inc., 250 Kan. 655, 668-69, 831 P.2d 958, 967-68 (1992). Harding explained the distinction between statutes of repose and statutes of limitation as follows:

A statute of limitations extinguishes the right to prosecute an accrued cause of action after a period of time. It cuts off the remedy. It is remedial and procedural. A statute of repose limits the time during which a cause of action can arise and usually runs from an act of a defendant. It abolishes the cause of action after the passage of time even though the cause of action may not have yet accrued. It is substantive.

Id. at 668, 831 P.2d at 967.³ For purposes of determining whether a legislature can revive a cause of action which is barred by a statute of repose, Harding recognized statutes of repose as substantive and plaintiffs have not argued that a different rule should apply for choice of law purposes. The Court finds no principled reason to characterize a statute of repose differently in the two different contexts.⁴ The Court therefore finds that Kansas courts would treat Section 60-513(b) as substantive law for choice of law purposes.

III. Kansas Product Liability Act

Defendant argues that it is entitled to summary judgment because the general ten-year statute of repose in Section 60-513(b) has extinguished plaintiffs' cause of action. Plaintiffs argue that their claim is not governed by Section 60-513(b), but by the Kansas Products Liability Act ("KPLA") and K.S.A § 60-3303, the statute of repose and exceptions which are set forth therein. Defendant argues that the Court should apply the general ten-year statute of repose which provides in relevant part as follows:

[I]f the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action.

K.S.A. § 60-513(b) (emphasis added). Plaintiffs concede that the ten-year statute of repose would bar their claim but argue that they fall within exceptions to the statute of repose in Section 60-3303.

Section 60-3303 holds that a product liability cause of action can arise only during the "useful safe life" of the product. Under the statute, a product seller is not liable if it proves by a preponderance of the evidence that the product caused harm after the product's "useful safe life" has expired. The "useful safe life" begins at the time of delivery and extends for the time during which the product would normally be likely...