Burrell v. Astrazeneca Lp
| Decision Date | 20 September 2010 |
| Docket Number | C. A. No. 07C-04-267 (SER),C. A. No. 07C-01-412 (SER),C. A. No. 07C-04-110 (SER) |
| Parties | KIMBERLY BURRELL, Plaintiff, v. ASTRAZENECA LP and ASTRAZENECA PHARMACEUTICALS LP, et al. Defendants. PATRICIA FLOWERS, Plaintiff, v. ASTRAZENECA LP and ASTRAZENECA PHARMACEUTICALS LP, et al. Defendants. MIMI RO, Plaintiff, v. ASTRAZENECA LP and ASTRAZENECA PHARMACEUTICALS LP, et al. Defendants. |
| Court | Delaware Superior Court |
Linda Richenderfer, Esquire, and Jennifer Patone Cook, Esquire, KLEHR HARRISON HARVEY BRANZBURG & ELLERS, Wilmington, Delaware. Robert W. Cowan, Esquire, and Fletcher V. Trammell, Esquire, BAILEY PERRIN BAILEY, Houston, Texas. Paul J. Pennock, Esquire, WEITZ & LUXENBERG, New York, New York. Attorneys for Plaintiffs.
Michael P. Kelly, Esquire, Noriss Cosgrove Kurtz, Esquire, MCCARTER & ENGLISH, LLP, Wilmington, Delaware. Steven B. Weisburd, Esquire, DECHERT, LLP, Austin, Texas. Donald Scott, Esquire and Sean W. Gallagher, Esquire, BARTLIT, BECK, HERMAN, PALENCHAR & SCOTT, Chicago, Illinois. Attorneys for Defendants.
Upon Consideration of Defendants Motion for Summary Judgment Based on
Statute of Limitations. GRANTED.
In this opinion, the Court considers whether the separate claims of three plaintiffs in the Seroquel® litigation1 must be dismissed with prejudice because they were filed beyond the applicable statute of limitations. AZ has moved for summary judgment on the ground that the claims are time-barred by the Delaware statute of limitations for claims of personal injury. Plaintiffs, Kimberly Burrell ("Ms. Burrell"), Patricia Flowers ("Ms. Flowers"), and Mimi Ro ("Ms. Ro") (collectively "Plaintiffs") have filed a joint opposition to the motion in which they argue that: (1) the Court must engage in a choice of law analysis to determine whether the statutes of limitations of their respective home states should apply under Delaware's so-called "borrowing statute;" (2) the "time of discovery exception" should operate to extend the applicable statute of limitations; and (3) the statute of limitations should be tolled because AZ fraudulently concealed the facts which give rise to their claims.
After carefully considering the motion and the Plaintiffs' response, the Court is satisfied that the borrowing statute requires the Court in this instance to apply Delaware's two year statute of limitations to Plaintiffs' claims. The Court is further satisfied that neither the time of discovery exception nor the fraudulent concealmentdoctrine will toll the statute of limitations sufficiently to save the Plaintiffs' claims from summary judgment. Accordingly, AZ's Motion for Summary Judgment must be GRANTED.
Ms. Burrell is a resident of Utah. 2 The parties do not dispute the following key dates relevant to AZ's statute of limitations challenge to her claims: she was prescribed Seroquel® on January 24, 2000; 3 she was diagnosed with diabetes on February 2, 2004; 4 and she filed this action for personal injuries allegedly caused by her ingestion of Seroquel® on January 31, 2007, approximately two years and seven months after her diagnosis of diabetes. 5 Ms. Burrell's prescription for Seroquel®, her use of Seroquel®, and her diagnosis and treatment of diabetes all took place in Utah. 6
Ms. Flowers is a resident of New York. 7 The parties do not dispute the following key dates relevant to AZ's statute of limitations challenge to her claims: she was prescribed Seroquel® in July, 1999; 8 she was diagnosed with diabetes on November 20, 2003; 9 and she filed this action for personal injuries allegedly caused by her ingestion of Seroquel® on April 5, 2007, approximately three years and four months after her diagnosis of diabetes. 10 Ms. Flowers' prescription for Seroquel®, her use of Seroquel®, and her diagnosis and treatment of diabetes all took place in New York. 11
Ms. Ro is a resident of California. 12 The parties do not dispute the following key dates relevant to AZ's statute of limitations challenge to her claims: she was first prescribed Seroquel® in June, 2001; 13 she was diagnosed with diabetes on May 23, 2002; 14 and she filed this action for personal injuries allegedly caused by her ingestion of Seroquel® on April 12, 2007, approximately four years and ten months after her diagnosis of diabetes. 15 Ms. Ro's prescription for Seroquel®, her use of Seroquel®, and her diagnosis and treatment of diabetes all took place in California. 16
In its Motion, AZ argues that Plaintiffs' claims are time-barred under Delaware's two year statute of limitations for claims alleging personal injury. 17 AZ argues that Delaware's borrowing statute, 10 Del. C. § 8121 (hereinafter the "borrowing statute"), does not save the Plaintiffs' claims because the Court may not consider another state's statute of limitations if the Plaintiffs' claims are barred by the Delaware statute of limitations. 18 Nor do any of the applicable tolling doctrines save the Plaintiffs, according to AZ, because Plaintiffs were aware of their injuries and aware of the facts needed to make their claims well beyond two years of the expiration of the statute of limitations.
Not surprisingly, Plaintiffs disagree. First, they argue that because AZ failed to conduct a thorough choice of law analysis to determine which state's statute of limitations should apply in each case, the Motion is deficient on its face and should be denied. 19 In the event the Court declines to engage in a choice of law analysis with respect to the statute of limitations, Plaintiffs argue that their claims are timely even under Delaware's two year statute because the "time of discovery" exception for inherently unknowable injuries tolls the statute to beyond the filing dates of their complaints. 20 Finally, Plaintiffs argue that because AZ fraudulently concealed the dangers of Seroquel® from them (and from other consumers), the statute of limitations is tolled until such time as they reasonably could have discovered the relevant facts giving rise to their claims. 21
The Court's principle function when considering a motion for summary judgment is to determine whether genuine issues of material fact exist. 22 Summary judgment is appropriate if, after reviewing the record in a light most favorable to thenon-moving party, no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. 23 If, however, the record reveals that material facts are in dispute, or if the factual record has not been developed thoroughly enough to allow the Court to apply the law to the factual record, then summary judgment will not be granted. 24 The moving party bears the burden of demonstrating that the undisputed facts support his claims or defenses. 25 If the motion is properly supported, then the burden shifts to the non-moving party to demonstrate that material issues of fact remain for resolution by the ultimate fact-finder. 26 "By its very terms, the standard of Rule 56(c) provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. "27 In the case of a motion for summary judgment based on a statute of limitations defense, the Court must grant the motion if the record reveals that no genuine issues of fact exists regarding the date on which the applicable statute oflimitations began to run, the date to which the statute of limitations may have been tolled, and the date on which the plaintiff filed her complaint with the court. 28
The Plaintiffs urge the Court to deny AZ's Motion because AZ has not adequately established which state's statute of limitations applies to each of the Plaintiff's claims. This argument requires the Court to address the proper application of the Delaware borrowing statute. Plaintiffs also contend that the applicable statute of limitations is tolled because the so-called "time of discovery" exception to the statute of limitations tolls the statute until such time as the Plaintiffs discovered the connection between their diagnoses of diabetes and their ingestion of Seroquel®. In addition, Plaintiffs argue that the statute of limitations is tolled because AZ fraudulently concealed the link between diabetes and Seroquel®. These arguments require the Court to consider when the Plaintiffs' causes of action accrued for statute of limitations purposes, both under the laws of accrual and potentially applicable tolling doctrines.
The Delaware borrowing statute provides, in pertinent part:
Where a cause of action arises outside of [Delaware], an action cannot be brought to enforce such cause of action after the expiration of whichever is shorter, the time limited by the law of this State, or the time limited by the law of the state... where the cause of action arose, for bringing an action upon such cause of action. 29
Under the clear and unambiguous terms of the statute, the Court must apply "the shorter of the Delaware statute of limitations or the statute of limitations of the state where the cause of action arose.... "30 In other words, for claims alleging personal injury, "the maximum limitations period allowable to [the] plaintiff is [Delaware's] two year [statute of limitations]. "31
Notwithstanding the clear language of the borrowing statute, Plaintiffs argue that the Court must engage in a formal choice of law analysis to determine if the statute of limitations of Delaware or their respective home states (or some other state) should apply to their claims. In support of this argument, Plaintiffs point to a lone decision of the United States District Court for the District of Delaware in which the court purportedly interprets the...
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