Bryant v. Wyeth, Inc.

• Decision Date: 08 September 2011
• Docket Number: Civil Action No. 3:03CV250TSL–MTP.
• Citation: 816 F.Supp.2d 329
• Parties: William D. BRYANT, Jr., Successor–In–Interest to Mary Anne Bryant, Plaintiff v. WYETH, INC., Wyeth Pharmaceuticals, and John Does 1–10, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

816 F.Supp.2d 329

William D. BRYANT, Jr., Successor–In–Interest to Mary Anne Bryant, Plaintiff

v.WYETH, INC., Wyeth Pharmaceuticals, and John Does 1–10, Defendants.

Civil Action No. 3:03CV250TSL–MTP.

United States District Court,S.D. Mississippi,Jackson Division.

Sept. 8, 2011.

Lakeysha Greer Isaac, Kathleen S. Cook, Cosmich & Simmons, PLLC, Jackson, MS, Thomas R. Frazer, II, Caselogistix, Inc., Franklin, TN, for Plaintiff.

Anita K. Modak-Truran, Christy D. Jones, Butler, Snow, O'Mara, Stevens & Cannada, Rebecca L. Wiggs, Watkins & Eager, PLLC, Jackson, MS, Charles F. Morrow, Butler, Snow, O'Mara, Stevens & Cannada, PLLC, Memphis, TN, for Defendants.

MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

This cause is before the court on the motion of defendants Wyeth, Inc. and Wyeth Pharmaceuticals, Inc. (Wyeth) for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on statute of limitations grounds. Plaintiff William D. Bryant, Jr., successor-in-interest to Mary Anne Bryant, has responded to the motion and the court, having considered the memoranda of authorities, together with attachments, submitted by the parties, concludes that Wyeth's motion is well taken and should be granted.

Mary Anne Bryant was diagnosed with breast cancer on April 22, 1999. After undergoing a mastectomy of her right breast on June 3, 1999, followed by chemotherapy over a twelve-week period, Mrs. Bryant was and thereafter remained free of breast cancer. On December 18, 2002, Mrs. Bryant filed the present action against Wyeth on various product liability theories, based on allegations that her breast cancer was caused by her use of Prempro, a hormone therapy medication manufactured, marketed and distributed by Wyeth. The case, originally filed in state court, was removed by Wyeth to this court on the basis of diversity jurisdiction, shortly following which on August 28, 2003 it was transferred to the Multi–District Litigation (MDL) Docket No. 1507: In re Prempro Products Liability Litigation (In re Prempro) before District Judge William R. Wilson, Jr. of the Eastern District of Arkansas. The case remained pending in the MDL until April 8, 2010, when it was remanded to this court. Following remand from the MDL, Wyeth filed its present motion for summary judgment based on the statute of limitations. ¹

Plaintiff's claims are governed by the three-year statute of limitations in Mississippi Code Annotated § 15–1–49, which provides in pertinent part, as follows:

(1) All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.

(2) In actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.

Miss.Code. Ann. § 15–1–49. Wyeth argues that under § 15–1–49, as interpreted and applied by the Mississippi Supreme Court in Angle v. Koppers, Inc., 42 So.3d 1 (Miss.2010), and Lincoln Electric Co. v. McLemore, 54 So.3d 833 (Miss.2010), and as recently applied by this court in Hewitt v. Wyeth, 5:03CV333TSL–MTP, 812 F.Supp.2d 768, 2011 WL 2670329 (S.D.Miss. July 7, 2011), Mrs. Bryant's cause of action accrued at the time of her breast cancer diagnosis in April 1999, so that her lawsuit, filed more than three years later in December 2002, is untimely.

In Hewitt, this court, addressing a similar motion by Wyeth, wrote:

Recently, in Angle v. Koppers, Inc., the Mississippi Supreme Court held that in accordance with the plain language of § 15–1–49(2), a cause of action for recovery on account of latent disease or injury “accrues upon discovery of the injury, not discovery of the injury and its cause.” 42 So.3d 1, 3 (Miss.2010). The plaintiff in Angle alleged various injuries, including breast cancer, as a result of exposure over a period of years to toxic chemicals released from railroad tank cars and trucks and from a wood-treatment facility near her residences. The court found the statute of limitations began to run on the plaintiff's claim at the latest in 2001, the date she was last diagnosed with an injury or disease (which, as here, was breast cancer); and thus, her complaint, filed five years later, was untimely. The court wrote, “No provision of Section 15–1–49 provides that a plaintiff must have knowledge of the cause of the injury before the cause of action accrues, initiating the running of the statute of limitations.” Id. at 7.

Notably in Angle, the court referenced its earlier opinion in Schiro v. American Tobacco Co., 611 So.2d 962, 965 (Miss.1992), as confusing the accrual issue by its comment, in dicta, that in 1981, the plaintiff “did not actually know that she had cancer, an injury connected with smoking. Thus, even if she had brought suit at this point, the claim would have been premature.” Angle, 42 So.3d at 6 (quoting Schiro, 611 So.2d at 965). The Angle court clarified that in Schiro, “the proper inquiry under the statute should have been the plaintiff's discovery of the injury or disease, i.e., a diagnosis of cancer, not the discovery of a causative relationship between smoking and the cancer.” Angle, 42 So.3d at 6. Hewitt, 812 F.Supp.2d at 769–70. See also Lincoln Electric Co. v. McLemore, 54 So.3d 833 (Miss.2010) (“As clarified in Angle, Section 15–1–49 does not require a plaintiff to know the cause of the injury before accrual of the cause of action[,]” and thus “[u]nder Angle, knowledge of the cause of an injury is irrelevant to the analysis [u]nder § 15–1–49(2)”); Barnes ex rel. Barnes v. Koppers, Inc., 534 F.3d 357, 361 (5th Cir.2008) (pre- Angle toxic tort case finding that cause of action accrued upon breast cancer diagnosis, not upon discovery of alleged cause of such cancer, since “under § 15–1–49, a cause of action accrues when the plaintiff has knowledge of the injury, not knowledge of the injury and its cause.”). This court in Hewitt thus concluded that the plaintiff's claims for recovery based on the allegation that her cancer was caused by Wyeth-manufactured hormone therapy medications Prempro and Premarin, were time-barred since the plaintiff filed her lawsuit more than three years after her diagnosis with breast cancer.

In response to Wyeth's motion in the case at bar, plaintiff initially argues that Wyeth has waived its statute of limitations defense by failing to timely pursue it. He acknowledges that Wyeth raised the affirmative defense of statute of limitations in its answer, but contends that since Wyeth thereafter actively engaged in the litigation process for over eight years before affirmatively filing its motion for summary judgment based on the statute of limitations, Wyeth waived this defense.

In support of his position, plaintiff cites several Mississippi Supreme Court cases which hold that “[a] defendant's failure to timely and reasonably raise and pursue the enforcement of any affirmative defenses or other affirmative matter or right which would serve to terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver.” Meadows v. Blake, 36 So.3d 1225, 1232 (Miss.2010) (quoting Mississippi Credit Center, Inc. v. Horton, 926 So.2d 167, 180 (Miss.2006)). However, plaintiff's reliance on Mississippi case law on the subject of waiver is misplaced. “In a diversity action such as this, substantive state law determines what constitutes an affirmative defense. However, ‘the Federal Rules of Civil Procedure provide the manner and time in which defenses are raised and when waiver occurs.’ ” Arismendez v. Nightingale Home Health Care, Inc., 493 F.3d 602, 610 (5th Cir.2007) (citing Lucas v. United States, 807 F.2d 414, 417 (5th Cir.1986), and quoting Morgan Guar. Trust Co. of New York v. Blum, 649 F.2d 342, 344 (5th Cir.1981)). The court in Arismendez went on to explain,

Rule 8(c) of the Federal Rules of Civil Procedure “requires that an affirmative defense be set forth in a defendant's responsive pleading. Failure to comply with this rule, usually results in a waiver.” Lucas, 807 F.2d at 417. “ ‘Where the matter is raised in the trial court in a manner that does not result in unfair surprise, however, technical failure to comply precisely with Rule 8(c) is not fatal.’ ” Id. (quoting Allied Chem. Corp. v. Mackay, 695 F.2d 854, 855–56 (5th Cir.1983)). More specifically, a defendant does not waive an affirmative defense if it is raised at a “ ‘pragmatically sufficient time, and [the plaintiff] was not prejudiced in its ability to respond.’ ” Lucas, 807 F.2d at 418 (quoting Mackay, 695 F.2d at 856) (brackets in opinion).

Arismendez, 493 F.3d at 610. “Central to requiring the pleading of affirmative defenses is the prevention of unfair surprise.” Ingraham v. United States, 808 F.2d 1075, 1079 (5th Cir.1987); see also Rogers v. McDorman, 521 F.3d 381, 385 (5th Cir.2008) (“[A] defendant should not be permitted to ‘lie behind a log’ and ambush a plaintiff with an unexpected defense.”) (quoting Ingraham v. United States, 808 F.2d 1075, 1079 (5th Cir.1987)). However, “when a plaintiff can adequately confront and defend against an affirmative defense, there is no undue prejudice.” Theunissen v. GSI Group, 109 F.Supp.2d 505, 509 (N.D.Miss.2000).

In this case, Wyeth did raise its statute of limitations defense in its answer. It now affirmatively seeks dismissal on the basis of the statute of limitations at a time well in advance of trial—which under the case management order is scheduled more than a year from now—and plaintiff has not shown that any delay has adversely affected its ability to fully and adequately respond to the motion on the facts and the law.² Under the circumstances, the court has no difficulty in concluding that Wyeth has raised the defense at a “pragmatically sufficient time,” so that plaintiff is not prejudiced...