In re Mirapex Products Liab. Litig.

• Decision Date: 14 September 2010
• Docket Number: Nos. 07-MDL-1836 (JMR/FLN),Nos. 10-CV-644 (JMR/FLN),s. 07-MDL-1836 (JMR/FLN),s. 10-CV-644 (JMR/FLN)
• Citation: 735 F.Supp.2d 1113
• Court: U.S. District Court — District of Minnesota
• Parties: In re MIRAPEX PRODUCTS LIABILITY LITIGATION. Nabil Gazal v. Boehringer Ingelheim Pharmaceuticals, Inc.; Pfizer, Inc.; Pharmacia Corporation; and Pharmacia & Upjohn Company LLC.

735 F.Supp.2d 1113

In re MIRAPEX PRODUCTS LIABILITY LITIGATION.

Nabil Gazal

v.Boehringer Ingelheim Pharmaceuticals, Inc.; Pfizer, Inc.; Pharmacia Corporation; and Pharmacia & Upjohn Company LLC.

Nos. 07-MDL-1836 (JMR/FLN), 10-CV-644 (JMR/FLN).

United States District Court,

D. Minnesota.

Aug. 25, 2010.

Order Denying Request to File Motion for Reconsideration Sept. 14, 2010.

Kevin D. Krist, The Law Office of Kevin Krist, Robin M. Ziek, Attorney at Law, Houston, TX, for Nabil Gazal.

Gene M. Williams, Jennise W. Stubbs, Shook Hardy & Bacon LLP, Houston, TX, Clare H. Dooley, Clark, Thomas & Winters, PC, Austin, TX, Bruce R. Parker,Mark D.R. Maneche, Jason C. Rose, James E. Gray, Venable LLP, Baltimore, MD, Scott A. Smith, Tracy J. Van Steenburgh, Nilan Johnson Lewis PA, MPLS, MN, for Boehringer Ingelheim Pharmaceuticals, Inc.; Pfizer, Inc.; Pharmacia Corporation; and Pharmacia & Upjohn Company LLC.

ORDER

JAMES M. ROSENBAUM, District Judge.

This matter is before the Court on defendants' motion for summary judgment. The motion is granted.

I. Background ¹

Plaintiff, Nabil Gazal, is a wealthy 62-year-old Australian citizen. He is the owner of a successful construction company, and has a lifelong history of recreational gambling.

In 1999, plaintiff consulted with a doctor who suggested he might be suffering from Parkinson's disease. He was formally diagnosed with the disease on September 4, 2002, by doctors at the Baylor College of Medicine's Parkinson's Disease Center and Movement Disorders Clinic. The doctors prescribed Mirapex as the drug to treat his symptoms.² He took the drug from November 12, 2002, until June 2009. His use of the drug, the information he had, and the dates upon which he acquired this information underlie this lawsuit and the Court's ruling.

Beginning in December 2002, after being prescribed Mirapex, plaintiff claims his gambling losses increased 10 to 15 percent.³ In August 2003, the plaintiff returned to Baylor and reported his Parkinson's symptoms had improved. He did not mention his increased gambling, nor did his doctor ask or warn him about it. On April 8, 2005, plaintiff returned to Baylor. On this visit, he first reported increased compulsiveness, increased gambling, and that he could not "leave the table." (Affidavit of Kevin Krist, Ex. 13.) His doctor renewed his prescription for Mirapex, but gave him a lower dose based on his reported gambling problem.

On July 11, 2005, the Mayo Clinic published a study suggesting a link between Mirapex and compulsive gambling ("the Dodd/Mayo study", Krist Aff. Ex. 20). The article received considerable media attention, and at some point "in late 2005," plaintiff acknowledges becoming aware that Mirapex might cause compulsive gambling. (Plaintiff's Memorandum at 8; Krist Aff. Ex. 1, ¶ 10.)

On November 4, 2005, one of plaintiff's Australian physicians concluded Mirapex might be responsible for plaintiff's increased and uncontrolled gambling. The plaintiff was hospitalized for two weeks in November 2005, in an effort to stop his use of Mirapex. The plaintiff, however, contends he was addicted to the product andunable to withdraw from it.⁴

The plaintiff made no further effort to quit Mirapex for three years. Instead, on May 15, 2006, he wrote to two Australian casinos requesting they no longer accept his business. He explained, "[d]ue to negative side effects from my serious medication, I am unable to be in control of my gambling, which has resulted in huge losses in the past few years." (Affidavit of Scott A. Smith, Ex. 9, 10.) The casinos agreed. Plaintiff also wrote to the card players, who agreed not to gamble with him. (Smith Aff. Ex. 13.)

Nonetheless, his gambling habit worsened. In May 2007, he visited a neurologist to discuss side effects of his medications. Plaintiff told the doctor he intended to "test[ ] his compulsive gambling out at the casino tomorrow night!" ( Id., Ex. 14.) On September 4, 2007, plaintiff returned to Baylor and reported that he had "lost millions of dollars" and was experiencing "family problems." (Krist Aff. Ex. 16.) The Baylor physicians renewed his Mirapex prescription. Plaintiff continued to gamble. In November 2008, he was hospitalized again for a week in an effort to stop taking Mirapex, but was unable to do so. A subsequent two-week hospitalization, in May and June of 2009, was successful.

Plaintiff brought this action in Texas state court in June 2009, claiming over $20 million in gambling losses. In January 2010, shortly after plaintiff dismissed the only non-diverse defendant, the remaining defendants removed the case to federal court. In March 2010, the Judicial Panel on Multidistrict Litigation transferred the action to this Court as part of the Mirapex Products Liability Multidistrict Litigation ("MDL").

Defendants move for summary judgment, arguing plaintiff's claims are time-barred.

II. Analysis

Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 246, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party opposing summary judgment may not rest upon the allegations in its pleadings, but must produce significant probative evidence demonstrating a genuine issue for trial. See Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505.

A. Products Liability

This Texas-based action is in federal court based on the diversity of the parties. As such, the Court applies Texas law, including its statutes of limitation, which are considered substantive law. Walker v. Armco Steel Corp., 446 U.S. 740, 749-50, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980).

Texas law provides that personal injury suits are to be commenced within two years after the date the cause of action accrues. Tex. Civ. Prac. & Rem.Code Ann. § 16.003(a); Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex.1998). The defendants contend the plaintiff's claims accrued more than two years prior to the date the case was filed. Under Texas law, the date the claim accrued "may be determined as a matter of law if reasonable minds couldnot differ about the conclusion to be drawn from the facts." Id. at 44.

As a general rule, "a cause of action accrues when a wrongful act causes an injury, regardless of when the plaintiff learns of that injury or if all resulting damages have yet to occur." Childs, 974 S.W.2d at 36. There is an alternative: if plaintiff's injury is "inherently undiscoverable," as in the case of a latent illness such as silicosis, the discovery rule applies. Id. at 37. The discovery rule, an exception to the general rule, defers accrual until plaintiff discovers both "the injury and that it was likely caused by the wrongful acts of another." Id. at 40. Such a claim may accrue even if plaintiff does not appreciate the seriousness of the injury, or know the identity of the wrongdoer. Id.

This Court finds that, whether it applies either the general or the discovery rule, plaintiff's personal injury claims are timebarred. Plaintiff acknowledges he first became aware of his gambling problem in 2002, and no later than 2003. He was also aware, as early as 2005-and no later than 2006-of a possible link between pathological gambling and Mirapex. He could have filed this lawsuit at those times. Instead, he waited until 2009. Accordingly, under either rule, his claims are time-barred.

Plaintiff disagrees. He asks this Court to adopt a new version of the Texas discovery rule which will allow his claims to proceed. He first posits that Texas law requires "objective verification of a causal connection" before a claim will accrue. (Pl. Mem. at 14, citing Childs, 974 S.W.2d at 43.) He then assumes, without citation to any legal or factual support, that no "objective verification" of causation is possible in a Mirapex case. Therefore, plaintiff argues, it was impossible for him to have discovered Mirapex caused his injury until researchers published the first "properly designed and executed epidemiological studies indicating more than a doubling of the relative risk of disease or injury." (Pl. Mem. at 15, internal quotations omitted.) He extracts his "doubling of the risk" requirement from the case of Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex.1997).

This Court finds plaintiff's argument is premised on a misreading of both Childs and Havner. First, Childs does not show Texas has adopted a test of "objective verification" of causation before a claim accrues. Far from it: Texas law requires only that "plaintiff's symptoms manifest themselves to a degree or for a duration that would put a reasonable person on notice that he or she suffers from some injury," and that plaintiff knows, or in the exercise of reasonable diligence should have known, the injury is caused by another's wrongful acts. Childs, 974 S.W.2d at 40. Claim accrual does not require a confirmed medical diagnosis, id. at 42, much less an epidemiological study. In fact, Childs says nothing about epidemiological studies. "Objective verification" does not mean a scientific study is required before a claim will accrue; it simply means the limitations clock does not start running the first time a plaintiff entertains subjective, unverified suspicions about what is causing his illness. Id. at 43.

The facts in this case provide overwhelming "objective verification" of a potential link between Mirapex and plaintiff's gambling. As early as 2002, plaintiff complained of the precise compulsive gambling symptoms which are the gravamen of his complaint. He directly reported them to his doctors, who acknowledged a connection between the drug and gambling. His physicians reduced his dosage in 2005, and tried to wean him from Mirapex in 2006.Accordingly, the holding in Childs alone would bar plaintiff's claim.

Plaintiff's reliance on Havner is equally unavailing. Havner, an appeal of a...