Paulsen v. Abbott Labs., Case No. 15-cv-4144

• Decision Date: 19 March 2019
• Docket Number: Case No. 15-cv-4144
• Parties: Terry PAULSEN, Plaintiff, v. ABBOTT LABORATORIES, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

368 F.Supp.3d 1152

Terry PAULSEN, Plaintiff,

v.ABBOTT LABORATORIES, et al., Defendants.

Case No. 15-cv-4144

United States District Court, N.D. Illinois, Eastern Division.

Signed March 19, 2019

Alan Scott Levin, Alan S. Levin, P.C., Incline Village, NV, Tesfaye Tsadik, Law Offices of Tesfaye Tsadik, Oakland, CA, Martin A. Dolan, Dolan Law Offices, P.C., Chicago, IL, for Plaintiff.

Paula Sue Quist, Kathryn Leahy Dore, Nicole C. Henning, Jones Day, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

Robert M. Dow, Jr., United States District Judge

Plaintiff Terry Paulsen brings this action against Defendants Abbott Laboratories ("Abbott"), AbbVie Inc. ("AbbVie"), Takeda Pharmaceuticals U.S.A. Inc. ("TPUSA"), and TAP Pharmaceutical Products, Inc. ("TAP") (collectively "Defendants") alleging strict products liability, strict products liability-failure to warn, negligence, and negligent misrepresentation. She also asserts fraudulent misrepresentation against Abbott. Currently before the Court are motions by Abbott [144], AbbVie [150], and TPUSA/TAP [147] to dismiss the complaint with prejudice. For the reasons explained below, Defendants' motions [144; 147; 150] are granted in part and denied in part. The motion to dismiss TAP as a Defendant pursuant to Federal Rule of Civil Procedure 12(b)(5) is granted and TAP is dismissed from this action with prejudice. With regard to Defendants' motions under Rule 12(b)(6) : all Counts against TPUSA as successor in interest to TAP are dismissed with prejudice; all Counts but Count II against AbbVie are dismissed; and all claims but Counts II & V against Abbott are dismissed. The Court sets this matter for further status on April 8, 2019 at 10:00 a.m. to set a schedule for limited discovery regarding: (1) when Plaintiff's claim accrued; (2) whether the second amended complaint as to AbbVie properly relates back under Rule 15(c)(3); and (3) the roles of the remaining defendants vis-à-vis the manufacturing and development of Lupron

. The parties should submit a joint status report and a proposed schedule for limited discovery no later than April 4, 2019. Finally, as an administrative matter, the motion for Rule 11 Sanctions by AbbVie, Abbott, and TPUSA [153] is stricken without prejudice in light of the notice of withdrawal filed on October 30, 2018 [180].

I. Background¹

The full background of this case is set forth in the Court's previous opinion, knowledge of which is assumed here. See [111 ( Paulsen v. Abbott Labs. , 2018 WL 1508532, *1–4 (N.D. Ill. Mar. 27, 2018) ]. In brief, Plaintiff alleges that the Lupron

injection that she received in 2004 to treat her endometriosis caused permanent damage to her bones and joints leading to her diagnosis of severe joint arthropathy in April 2008 and osteoporosis in May 2010. [143, ¶¶ 21–22.] She also continues to suffer from chronic joint pain, muscle pain, and fatigue. [Id. ¶ 22.] Critically, Plaintiff alleges that as early as 1990, Abbott and TAP² knew of the continued bone loss incurred by Lupron users and the risk that the medication therefore posed to patient's health, but took no corrective action, provided no additional warnings, and did not take the drug off the market. [Id. ¶ 22.] In her second amended complaint, Plaintiff alleges that an Abbott drug detail person explicitly told her physician that Lupron was safe and effective and would not cause any long-term adverse effects. [143, ¶ 50.]

Plaintiff's quest to hold Defendants accountable for the harms allegedly caused by the Lupron

that they purportedly designed, manufactured, packaged, marketed, etc. has spawned a veritable odyssey of litigation spanning almost a decade. Although the full saga is more fully laid out in the Court's previous opinion, see [ Paulsen , 2018 WL 1508532, at *2–4 ], the Court will provide a brief summary here as well. In April 2010, Plaintiff along with several other individuals, filed suit against Abbott, TPNA,³ TAP, and Takeda Inc. in the Eastern District of New York. [ Id. at *3.] The case was then transferred to the Southern District of New York, before finally coming to rest in the Northern District of Illinois in July 2011 before Judge Gottschall. [ Id. ] The case proceeded into discovery—after Plaintiff filed an amended complaint in October 2011—until August 2013, when Plaintiff's then-counsel moved to withdraw from the case. [ Id. ] After admonishing Plaintiff that her case would be dismissed for lack of prosecution unless she appeared, Judge Gottschall dismissed the case in October 2013 when Plaintiff failed to appear. [ Id. ] Although the case was briefly reinstated upon the request of Plaintiff's mother, in May 2014 Plaintiff voluntarily dismissed the lawsuit. [ Id. ]

After unsuccessfully attempting to reopen the previous case through newly-acquired counsel in April 2015, Plaintiff filed a new complaint against Abbott, TPNA, Takeda Inc., and TAP in the current action in May 2015. [ Id. ] The complaint [1] asserted seven causes of action against all the defendants including various product liability, negligence, warranty, and misrepresentation claims. See generally [1]. The defendants moved to dismiss the action in July 2015. [ Paulsen , 2018 WL 1508532, at *3.] The motions were dismissed without prejudice, however, until Judge Gottschall could determine whether the Illinois savings statute or Georgia statute of limitations period applied. [ Id. ] That question turned on whether Abbott was a real party at interest to the litigation. [ Id. ]

After limited discovery, Judge Gottschall determined on a motion for summary judgment that there was a "genuine issue of material fact as to whether Abbott's role in the distribution chain was sufficient to create liability." [ Id. ] The Defendants then refiled their motions to dismiss to dismiss under Federal Rules of Civil Procedure 12(b)(5) and (b)(6), which this Court resolved in an opinion dated March 27, 2018. See generally [ Paulsen , 2018 WL 1508532 ].

The Court granted the motions in part and denied them in part. [ Id. at *1.] As to the Defendants' motions under Rule 12(b)(6), the Court dismissed all the claims against Takeda Inc. and Takeda Chemical Industries, Ltd. with prejudice, dismissed all the claims against TPNA without prejudice, and dismissed all but the strict liability claims against Abbott without prejudice. [ Id. ] The Court also granted Defendants' motion to dismiss TAP as a defendant pursuant to Rule 12(b)(5)"to the extent that Plaintiff is given until May 22, 2018 to serve an amended complaint upon a proper defendant (whether that is TAP or a proper successor to TAP)." [ Id. ] However, the Court granted Plaintiff leave to file an amended complaint, provided she could do so consistent with the opinion. [ Id. ]

On July 6, 2018, Plaintiff filed her second amended complaint (the "SAC"), after filing a short-lived first amended complaint in April 2018. [143.] The SAC brings four causes of action against all Defendants—strict products liability (Counts I & II), negligence (Count III), and negligent misrepresentation (Count V)—and one cause of action against Abbott alone—fraudulent misrepresentation (Count IV). Defendants have filed three motions to dismiss in response. See generally [144; 147; 150]. First, TAP moves to dismiss the claims against it with prejudice pursuant to Rule 12(b)(5). [147.] The remaining Defendants move to dismiss the claims against them under Rule 12(b)(6). TPUSA asserts that Plaintiff has failed to state a claim against it, because the facts as pled show that TPUSA cannot be held liable as a successor in interest to TAP as Plaintiff claims. [147, at 3–5.] AbbVie, in turn, argues that all the claims against it are barred by the statute of limitations, and that in any case, Plaintiff has failed to state any plausible claims against it under Rule 8. See generally [150]. Finally, Abbott argues that the complaint fails to state a plausible claim against it under Rule 8 on Counts I–III and V and fails to plead fraudulent misrepresentation in Count IV with the specificity required by Rule 9(b). See generally [144]. Defendants also filed a motion for Rule 11 sanctions [153], which later was withdrawn, see [180].

II. Rule 12(b)(5) Motion to Dismiss

A. Legal Standard

Once a plaintiff files a lawsuit in federal court, the plaintiff must ensure that each defendant receives a summons and a copy of the complaint against it. Fed. R. Civ. P. 4(b), (c)(1). Unless the plaintiff can demonstrate good cause for being unable to do so, she must accomplish this service of process within 90 days of filing to avoid possible dismissal of the suit. Fed. R. Civ. P. 4(m). These service requirements serve several purposes: they "provide notice to parties, encourage parties and their counsel to diligently pursue their cases, and trigger a district court's ability to exercise jurisdiction over a defendant." Cardenas v. City of Chi. , 646 F.3d 1001, 1004–05 (7th Cir. 2011) (citing Henderson v. United States , 517 U.S. 654, 672, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996) ) (other citations omitted). Generally, "a district court may not exercise personal jurisdiction over a defendant unless the defendant has been properly served with process, and the service requirement is not satisfied merely because the defendant is aware that he has been named in a lawsuit or has received a copy of the summons and the complaint." United States v. Ligas , 549 F.3d 497, 500 (7th Cir. 2008).

"A defendant may enforce the service of process requirements through a pretrial motion to dismiss," at which point the plaintiff "bears the burden to demonstrate that the district court has jurisdiction over each defendant through effective service." Cardenas , 646 F.3d at 1004–05. (citing Fed. R. Civ. P. 12(b)(5) ) (other citation omitted). If the Court determines that the plaintiff has not met that burden and lacks good cause for not perfecting service, the Court must either dismiss the suit or specify a time within which the...