Paulsen v. Abbott Labs.
| Decision Date | 28 September 2021 |
| Docket Number | 15-cv-04144 |
| Citation | 563 F.Supp.3d 787 |
| Parties | Terry PAULSEN, Plaintiff, v. ABBOTT LABORATORIES, et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Alan Scott Levin, Pro Hac Vice, Alan S. Levin, P.C., Incline Village, NV, Tesfaye Tsadik, Pro Hac Vice, Law Offices of Tesfaye Tsadik, Oakland, CA, Martin A. Dolan, Dolan Law Offices, P.C., Chicago, IL, for Plaintiff.
Paula Sue Quist, Erin Kies DeGrand, Kathryn L. Dore, Nicole C. Henning, Jones Day, Chicago, IL, for Defendants Abbott Laboratories, AbbVie, Inc.
Kathryn L. Dore, Nicole C. Henning, Jones Day, Chicago, IL, for Defendants Takeda Pharmaceuticals of North America, Inc., Takeda Chemical Industries Inc.
Paula Sue Quist, Kathryn L. Dore, Nicole C. Henning, Jones Day, Chicago, IL, for Defendant Tap Pharmaceutical Products, Inc.
Paula Sue Quist, Kathryn L. Dore, Jones Day, Chicago, IL, for Defendant Takeda Pharmaceuticals USA, Inc.
More than 17 years ago, Plaintiff Terry Paulsen received two injections of the drug Lupron
to treat her endometriosis. Plaintiff contends in this suit governed by Georgia tort law that those injections caused her multiple injuries, including permanent damage to her bones and joints. After protracted litigation that has pared down both the number of defendants and surviving causes of action, Defendants now seek summary judgment on Plaintiff's two remaining claims: (1) strict liability failure to warn against Defendants Abbott Laboratories, Inc. ("Abbott") and AbbVie, Inc. ("AbbVie"); and (2) negligent misrepresentation against Abbott.
Both of Plaintiff's claims fail as a matter of law. Plaintiff's strict liability failure-to-warn claim is time-barred by Georgia's 10-year statute of repose. Plaintiff's separate claim for negligent misrepresentation also fails because, under Georgia law, it is both subsumed within the failure-to-warn claim and devoid of evidentiary support that Abbott made any representations, let alone false ones, regarding Lupron
. Accordingly, and as explained more fully below, the Court grants Defendants’ motion for summary judgment.
Familiarity with the factual background and procedural history of this case, as described in detail in the Court's previous orders on Defendants’ motions to dismiss (Dkts. 111, 181), will be assumed for purposes of this opinion. In the interest of completeness, however, the Court provides the following summary of the undisputed facts relevant to the resolution of Defendants’ motion for summary judgment.
Plaintiff Terry Paulsen is a Georgia resident who suffered from endometriosis
. (Defendants’ Statement of Material Facts ("DSOF"), Dkt. 198 ¶¶ 1, 32.) To treat Plaintiff's condition, Dr. Gregory Perry prescribed Lupron Depot 3.75 mg ("Lupron")—an injection—and provided the drug to Plaintiff in his office via two separate doses administered on February 11, 2004 and March 16, 2004. (Id. ¶ 4.) Following the injections, Plaintiff began experiencing a variety of health problems, including "severe bone and joint pain" (DSOF ¶ 21), memory loss, and fevers (id. ¶ 26). In May 2010, Plaintiff was diagnosed with osteoporosis. (Plaintiff's Statement of Material Facts ("PSOF"), Dkt. 206 ¶ 19.)
At the time of Plaintiff's injections, an entity called TAP Pharmaceutical Products, Inc. held the New Drug Application ("NDA") for Lupron
. (DSOF ¶ 6.) A separate entity, Takeda Chemical Industries, Ltd. ("Takeda") manufactured Lupron's active ingredient in Japan and then shipped lots of pre-filled syringes to the United States for distribution. (Id. ¶¶ 8, 10.) Abbott received these lots, packaged them, labeled them, performed quality control checks, and then distributed them within the United States as directed by TAP. (Id. ¶ 11-13.)
Plaintiff filed her first complaint in the U.S. District Court for the Eastern District of New York on April 20, 2010. (See Dkt. 1, Cardenas v. Abbott Labs. , No. 10-CV-1745-RRM-VVP (E.D.N.Y.).) That complaint named as defendants, among others, Abbott, TAP, and Takeda, but not current Defendant AbbVie. (See Dkt. 111 at 5.) The New York case was transferred to this District, and Takeda was dismissed because Plaintiff never served it. (Id. ) After several years of litigation, Plaintiff voluntarily dismissed her claims on May 30, 2014. (See Dkts. 143, 144, Cardenas v. Abbott Labs. , No. 11-cv-04860 (N.D. Ill.)) Plaintiff moved to reopen her case on April 24, 2015, but the court denied her request. (Id . Dkts. 146, 147.)
Plaintiff then filed her first complaint in this action on May 11, 2015 and named Abbott, TAP, and Takeda—but again not AbbVie—as defendants. (Dkt. 1.) That complaint asserted several causes of action against all defendants, including various product liability, negligence, warranty, and misrepresentation claims. (See generally id. ) Following a motion to dismiss, several amended complaints, the addition of AbbVie as a defendant, another motion to dismiss, and the reassignment of this case to the undersigned judge, the only claims that remain in this litigation are strict liability failure to warn (Count II) against both AbbVie and Abbott and a negligent misrepresentation claim (Count V) against Abbott only. (See Dkts. 111, 181.)
Summary judgment must be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). At the summary-judgment stage, a district court must view the facts in the light most favorable to the non-moving party. Scott v. Harris , 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). But as "the ‘put up or shut up’ moment in a lawsuit, summary judgment requires a non-moving party to respond to the moving party's properly supported motion by identifying specific, admissible evidence showing that there is a genuine dispute of material fact for trial." Grant v. Trs. of Ind. Univ. , 870 F.3d 562, 568 (7th Cir. 2017) (cleaned up).
First, Defendants argue that the Court should dismiss Plaintiff's claim for strict liability failure to warn (Count II) as time-barred by Georgia's 10-year statute of repose. (Dkt. 197 at 13-14.) Georgia's statute bars any strict liability action brought more than "ten years from the date of the first sale for use or consumption of the personal property causing or otherwise bringing about the injury,"1 O.C.G.A. § 51-1-11(b)(2), and thus "destroys the previously existing rights so that, on the expiration of the statutory period, the cause of action no longer exists." Wright v. Robinson , 262 Ga. 844, 426 S.E.2d 870, 872 (1993).
Plaintiff does not dispute that the last time she consumed Lupron
was in March 2004. Under Georgia's statute of repose, she thus had until March 2014 to bring her strict liability claim. She did not file this lawsuit, however, until May 11, 2015 (see Dkt. 1)—more than a year after the expiration of the statute of repose.
Plaintiff argues, however, that the statute's carve-out for "failure to warn claims" saves her claim. (Dkt. 205 at 9.) Although the statute contains an exception providing that "[n]othing contained in this subsection shall relieve a manufacturer from the duty to warn of a danger arising from use of a product once that danger becomes known to the manufacturer[,]" O.C.G.A. § 51-1-11(c), that exception applies only to negligent failure-to-warn claims, not strict liability failure-to-warn claims. See Allison v. McGhan Med. Corp. , 184 F.3d 1300, 1307 (11th Cir. 1999) (); see also In re Cook Med., Inc., IVC Filters Mktg., Sales Pracs. & Prod. Liab. Litig. , No. 1:14 ML 02570 RLY TAB, 2017 WL 2362003, at *3 (S.D. Ind. May 31, 2017) (); Meraz v. Ford Motor Co., No. CV 13 00260 PSG (VBKx), 2014 WL 12558123, at *11 (C.D. Cal. June 13, 2014) (same); Thomas v. Hubtex Maschinenbau GmbH & Co. KG , No. CIV.A. 7:06-CV-81(HL), 2008 WL 4371977, at *9 (M.D. Ga. Sept. 23, 2008) (same).
Because Plaintiff brought her strict-liability claim outside the period allowed by Georgia's 10-year statute of repose, and because the statute's exception for negligent failure-to-warn claims does not apply to Plaintiff's claims, her claim is time-barred. Accordingly, the Court grants Defendants’ motion for summary judgment as to Count II.
Although Georgia's 10-year statute of repose warrants dismissal of Plaintiff's strict liability failure-to-warn claim, Defendants advance several other arguments that merit discussion. First, Abbott argues that Georgia law allows plaintiffs to bring strict liability claims only against a product's manufacturer, and thus Abbott, which did not manufacture Lupron
, cannot be held liable for injuries that the product may have caused to Plaintiff. (Dkt. 197 at 15.)
Georgia law, of course, provides for strict liability for defective products. A manufacturer of personal property sold as new is liable in tort to "any natural person who may use, consume, or reasonably be affected by the property" and who suffers an injury to his person or property "because the property when sold by the manufacturer was not merchantable] and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained."...
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