The opinion of the court was delivered by: Elaine E. Bucklo, United States District Judge
MEMORANDUM OPINION AND ORDER
Defendants Boehringer Ingelheim Pharmaceuticals, Inc. ("Boehringer")
and Roxane Laboratories, Inc. ("Roxane") move for reconsideration of my
July 17, 2002 order granting Holmes leave to file a second amended
complaint. I grant the motion for reconsideration.
On January 27, 2000, plaintiff Bettie Jones Holmes was accidentally
exposed to HIV in the course of her employment at Advocate Illinois
Masonic Medical Center ("IMMC"). She was treated in IMMC's emergency
room, where IMNC personnel prescribed and administered two drugs,
Viramune and Combivir, in order to prevent Ms. Holmes from becoming
infected with HIV. Ms. Holmes continued to take the drugs as prescribed
over the following weeks. On March 8, 2000, Ms. Holmes went into a
hepatic coma and underwent an emergency liver transplant. On May 17,
2001, Ms. Holmes filed suit against Boehringer and Roxane, stating
negligence and strict liability claims based on the defendants'
manufacture and sale of Viramune, which allegedly caused her liver
failure. The defendants removed the case to federal court. On October
25, 2001, Ms. Holmes successfully moved to file an amended complaint,
adding warranty claims against the two original defendants and naming
IMMC and Drs. Ramamoorthy Sundaresan, Evelyn Tebner, and James Malow, who
were involved in Ms. Holmes' treatment following her HIV exposure, as
respondents in discovery. Sometime in May of 2002, Ms. Holmes fired her
original counsel, and a new plaintiff's attorney appeared on her behalf.
On July 17, 2002, Ms. Holmes' new counsel moved for leave to file a
second amended complaint naming the respondents in discovery as
defendants and adding as new defendants Glaxo Wellcome, Inc. and Drs.
Shari Medina and Michael Cromeans. I granted the motion, unaware that it
was opposed. Boehringer and Roxane have filed a motion to reconsider,
arguing that some of the new defendants are non diverse, thereby
destroying this court's jurisdiction, and that the complaint would be
subject to dismissal due to the applicable statute of limitations.
This court has jurisdiction over the case pursuant to
28 U.S.C. § 1332 and 1441. Such jurisdiction was proper at the time
of removal because complete diversity of citizenship existed between the
Illinois plaintiff and the Delaware defendants. "If after removal the
plaintiff seeks to join additional defendants whose joinder would
subject matter jurisdiction, the court may deny joinder, or permit
joinder and remand the action to the state court." 28 U.S.C. § 1447
(e). As IMMC and all of the doctors are Illinois citizens, allowing the
joinder of any of them as defendants would destroy federal jurisdiction
in this case. While Rule 15 directs that leave to amend shall be "freely
given," it is properly denied where there is "undue delay, bad faith,
dilatory motive, a repeated failure to cure deficiencies, undue prejudice
to the opponent, or where the amendment would be futile." Bower v.
Jones, 978 F.2d 1004, 1008 (7th Cir. 1992). An amendment may be futile
"when it fails to state a valid theory of liability or could not
withstand a motion to dismiss." Id. at 1008.
The claims Ms. Holmes seeks to join are futile because they could not
withstand a motion to dismiss for violation of the statute of
limitations. The statute of limitations on medical malpractice claims
against physicians or hospitals is two years from the time a plaintiff
knew, or through the use of reasonable diligence should have known, of
the injury. 735 ILL. COMP. STAT. 5/13-212(a) (2002).
Ms. Holmes contends that the two-year statute of limitations on her
claims against IMMC and her physicians did not begin to run until July
2, 2002, when she received a Certificate of Physician stating that IMMC
and its employees violated the standard of care. She states that this is
the first time she became aware that the new defendants injured her.
However, Ms. Holmes filed a negligence claim against Drs. Sundaresan,
Tebner, and Malow in state court on May 6, 2002, indicating that she was
aware of their allegedly deficient performance at least two months before
she received the Certificate of Physician. More importantly, the Illinois
Supreme Court has held that where the plaintiff's injury is caused by a
"sudden traumatic event . . . the cause of action accrues, and the
statute of limitation begins to run, on the date the injury occurs."
Golla v. Gen. Motors Corp., 657 N.E.2d 894, 899 (Ill. 1995). A
plaintiff's stroke after ingestion of the birth control pill has been
found to be a sudden traumatic event triggering the running of the
statute of limitations. Berry v. Searle, 309 N.E.2d 550, 556 (Ill.
1974). Berry suggests that hepatic coma following ingestion of antiviral
medication is also a sudden traumatic event.
Where the facts are not in dispute, and only one conclusion may be
drawn from those facts, the question of whether a plaintiff knew or
reasonably should have known that she was injured by the defendants may
be decided by the court as a matter of law. Young v. McKiegue,
708 N.E.2d 493, 499 (Ill.App. Ct. 1999). Here, it is undisputed that Ms.
Holmes was aware of a sudden traumatic injury when she underwent a liver
transplant on March 8, 2000. It is undisputed that Ms. Holmes was aware
of a connection between the care she received at IMMC and her injury, as
she commenced a lawsuit against the manufacturer of the drug she received
there and named IMMC and its employees as respondents in discovery.
Further, Ms. Holmes acknowledges that the July 2, 2002 Certificate of
Physician, which supposedly brought her right of action to her attention
for the first time, was based on medical records which had been in her
original attorney's possession since commencement of the suit. Thus, as a
matter of law, Ms. Holmes had constructive notice of her claims against
IMMC and its employees in March of 2000, and her claims against them are
now time-barred. Ms. Holmes offers no explanation whatsoever as to why
she failed to name Glaxo Wellcome as a defendant earlier. The statute of
limitations for personal injury claims outside the
context is likewise two years; the claim against Glaxo Wellcome is also
barred. 735 ILL. COME. STAT. 5/13-202 (2002)
Defendants' motion for reconsideration is GRANTED. Ms. Holmes' leave to
file a second amended complaint is DENIED.
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