Tavilla v. Cephalon, Inc., CV–11–00270–PHX–DGC.

• Citation: 870 F.Supp.2d 759
• Decision Date: 03 May 2012
• Docket Number: No. CV–11–00270–PHX–DGC.,CV–11–00270–PHX–DGC.
• Parties: Nicolai TAVILLA, et al., Plaintiffs, v. CEPHALON, INC., a Delaware Corporation, Defendant.
• Court: U.S. District Court — District of Arizona

870 F.Supp.2d 759

Nicolai TAVILLA, et al., Plaintiffs,

v.CEPHALON, INC., a Delaware Corporation, Defendant.

No. CV–11–00270–PHX–DGC.

United States District Court,

D. Arizona.

May 3, 2012.

Recognized as Unconstitutional

A.R.S. § 12–542

Richard T. Treon, Treon Aguirre Newman & Norris PA, Phoenix, AZ, for Plaintiffs.

John F. Brenner, Pepper Hamilton LLP, Princeton, NJ, Kathleen Kelly Kahn, Stephen M. Bressler, Lewis & Roca LLP, Phoenix, AZ, for Defendant.

ORDER

DAVID G. CAMPBELL, District Judge.

Defendant Cephalon, Inc. (“Cephalon”) filed a motion for summary judgment in this product liability suit on the basis that Plaintiffs' claims are time barred by the two year statute of limitations found in A.R.S. § 12–542. Doc. 75. The motion has been fully briefed, and neither party has requested oral argument. Docs. 78, 81. Plaintiffs also filed a motion to strike Defendants' additional statement of facts in support of its reply (Doc. 84) and a motion to file an amended complaint adding causes of action for fraud (Doc. 85). These motions have been fully briefed. Docs. 86, 88; 87, 90.¹ For the reasons set forth below, the Court will grant Cephalon's motion as to Donna and Britny Tavilla and deny it as to Nicolai Tavilla and the Tavilla's minor children. The Court will deny Plaintiffs' motion to strike and motion to amend.

I. Background.

Beginning in September 2003, Plaintiff Nicolai Tavilla sought treatment from Dr. Christopher Barnes for chronic pain following a series of auto accidents. Doc. 76, ¶ 1. Dr. Barnes refilled Plaintiff's then-current prescriptions for Oxycontin, Percocet, and Valium, and on September 16, 2004, began prescribing Actiq, a drug manufactured, sold, and distributed by Cephalon. Id., ¶¶ 2–5. Actiq is a drug “matrix” of fentanyl citrate—a controlled substance—that is administered through a lozenge on a stick, or “lollipop,” for fast absorption and pain relief. Id., ¶ 5, Doc. 79, ¶ 5. FDA-approved labels for Actiq state that it is an opiate indicated only to relieve breakthrough pain for cancer patients already tolerant of opioid therapy. Doc. 79, ¶ 6. The warnings also state that Actiq is a controlled substance that can lead to dependence and abuse as well as tooth and gum decay. Docs. 76, ¶ 6; 79, ¶ 6.

Dr. Barnes prescribed Actiq for Plaintiff in varying dosages until November of 2008. Docs. 76, ¶ 9; 79 ¶ 9. Plaintiff told Dr. Barnes in 2006 and 2007 that he was having problems with abscesses and tooth decay. 79, ¶ 14; 76, ¶ 14. Plaintiff began seeing dentist Dr. Steven Poulos for dental issues in 2007. Docs. 76, ¶¶ 11–12; 79, ¶¶ 11–12. On June 11, 2007, Dr. Poulos wrote to Plaintiff's insurance provider, Blue Cross Blue Shield (“BCBS”), that Plaintiff had “severe dental breakdown,” that he was in “severe pain with acute and chronic infection,” and that he needed “extensive dental work.” Docs. 76, ¶ 48; 79, ¶ 48. Plaintiff was also treated by medical internist Dr. Ungar for dental and mouth-related problems, and Dr. Ungar advised Plaintiff on October 25, 2007, that he would have to get his teeth pulled because of extensive damage caused by the “narcotic lollipops” he was using. Docs. 79, ¶ 17; 76, ¶ 17.

On April 17, 2007, Mr. Tavilla called Cephalon seeking compensation for his Actiq-related dental issues. Doc. 76, ¶¶ 33–34. Mr. Tavilla made additional calls between May and September of 2007, including to Cephalon in-house counsel Brian Hirsch, in which Mr. Tavilla requested payment for his dental treatment and pain and suffering, and agreed to send medical records to support his claim. Id., ¶¶ 36–38.

On May 1, 2007, Mr. Tavilla also contacted BCBS seeking insurance coverage for dental work done by Dr. Poulos as well as anticipated costs associated with his treatment plan. Docs. 76, ¶ 42; 79, ¶ 42. Following multiple reviews ( id., ¶¶ 48–50), BCBS proposed a compromise offering limited coverage. Id., ¶ 50. On August 4, 2009, the Tavillas initiated a lawsuit against BCBS. Id., ¶ 52.

On September 15, 2010, Plaintiffs filed a complaint against Cephalon in Maricopa County Superior Court alleging product liability and tort claims associated with Mr. Tavilla's addiction to Actiq—an addiction that Plaintiffs claim caused physical injury to him and loss of consortium for his wife and daughters. Doc. 1–5. Plaintiffs Nicolai and Donna Tavilla sued on behalf of themselves and their two minor daughters, and their daughter Britny sued on behalf of herself. Id. On February 9, 2011, Cephalon timely removed the case to this Court on the basis of diversity jurisdiction. Doc. 1. The Court ordered the parties to conduct discovery related to Cephalon's statute of limitations defense and Plaintiffs' argument that the statute was tolled because Mr. Tavilla was not competent to file suit. Doc. 17. Discovery on that issue closed on December 9, 2011, and Cephalon filed the instant motion on December 16, 2011.

II. Summary Judgment Standard.

A party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, 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). Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment, and the disputed evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III. Discussion.A. Whether Plaintiffs' Claims are Time-barred.

Under Arizona law, personal injury actions, including product liability actions, must be “commenced and prosecuted within two years after the cause of action accrues.” SeeAriz. Rev. S. § 12–542, held unconstitutional for wrongful death actions by Anson v. Am. Motors Corp., 155 Ariz. 420, 426, 747 P.2d 581 (Ariz.App.1987); § 12–551, held unconstitutional in part on other grounds by Hazine v. Montgomery Elevator Co., 176 Ariz. 340, 342, 861 P.2d 625 (Ariz.1993). Generally, “a cause of action accrues, and the statute of limitations commences, when one party is able to sue another.” Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 182 Ariz. 586, 588, 898 P.2d 964 (Ariz.1995). “Under the ‘discovery rule,’ a plaintiff's cause of action does not accrue until the plaintiff knows or, in the exercise of reasonable diligence, should know the facts underlying the cause.” Id.

Cephalon argues that Plaintiffs knew by 2007 that Mr. Tavilla had become addicted to Actiq and that it was damaging his teeth. Cephalon argues that the two-year statute of limitations began to run at that time, making Plaintiffs' September 15, 2010 complaint untimely. Doc. 75 at 3–9.

Plaintiffs respond that their claims are not time-barred because even though Mr. Tavilla's prescription ended in late 2008, he continued taking Actiq through the spring of 2009 and Plaintiffs filed the complaint within two years of that time. Doc. 78 at 1–2. Plaintiffs also argue that even if their claims for injuries that took place prior to September 15, 2008 are time-barred, damages caused from September 15, 2008 until September 15, 2010, when they filed the complaint, are not time-barred. Id. at 4.

The Court finds that Plaintiffs have raised a genuine issue of fact about when Mr. Tavilla last took Actiq. Cephalon states that Dr. Barnes prescribed Actiq for Mr. Tavilla until late 2008. Docs. 75 at 2, 76, ¶ 9. Plaintiffs argue on the basis of Donna Tavilla's declaration that although Dr. Barnes stopped prescribing Actiq for Mr. Tavilla in November 2008, Donna Tavilla had saved up Mr. Tavilla's partially used lozenges in plastic bags he continued to use throughout the spring of 2009 and remained addicted until late spring of 2009. Docs. 79 at 1–2, 80–7, ¶ 19.

This dispute is not material, however, because Arizona law provides that the statute of limitations begins to run in tort actions from the time the injury is known. In Gust, the Arizona Court of Appeals recognized that Arizona courts have long applied the “discovery rule” to tort cases, including in a 1948 medical malpractice case in which the Arizona Supreme Court held that the statute of limitations did not begin to run “until the plaintiff had discovered the facts constituting the cause of action.” 898 P.2d at 967 (citing Morrison v. Acton, 68 Ariz. 27, 198 P.2d 590, 596 (1948)). Stated elsewhere, “the plaintiff must at least possess a minimum requisite of knowledge sufficient to identify that a wrong occurred and caused injury.” Doe v. Roe, 191 Ariz. 313, 955 P.2d 951 (1998) (citing, e.g., Lawhon v. L.B.J. Institutional Supply, Inc., 159 Ariz. 179, 765 P.2d 1003, 1007 (Ariz.Ct.App.1988) (the plaintiff must know the what and who elements of the injury)). As shown in the legal malpractice context, once “some injury” or “damaging effect” is known, the statute commences to run even where the extent of damages is unknown or the claimant sustains further injury from the same cause of action. Cecala v. Newman, 532 F.Supp.2d 1118, 1142 (D.Ariz.2007) (citing Commercial Union Ins. Co. v. Lewis and Roca, 183 Ariz. 250, 902 P.2d 1354, 1359 (Ariz.Ct.App.1995)); see also Arizona Mgmt. Corp. v. Kallof, 142 Ariz. 64, 688 P.2d 710, 714 (Ariz.Ct.App.1984) (“The cause of action arises ... before the client sustains all, or even the greater part, of the damages occasioned by his attorney's negligence.”).

Plaintiffs have not presented a genuine issue of material fact over whether Mr. Tavilla's addiction to and injuries from Actiq were known to them more than two years prior to filing suit. In answer to an interrogatory in a separate...