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Gordon v. Ortho-McNeil Pharmaceutical

May 8, 2006


The opinion of the court was delivered by: Judge Robert W. Gettleman


Plaintiff, Helen Larkin Gordon, filed a two-count complaint against defendant, Ortho-McNeil Pharmaceutical, Inc., seeking damages under claims of strict product liability and negligence for injuries sustained as a result of taking Levaquin® (levofloxacin), an antibiotic manufactured by defendant. Defendant has moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6), alleging that plaintiff's claims are time barred under the relevant Illinois two-year statute of limitations for personal injuries and product liability. For the reasons discussed herein, defendant's motion to dismiss is denied.


Defendant, a Delaware corporation with its principal place of business in Raritan, New Jersey, manufactures Levaquin®, a prescription antibiotic belonging to the fluoroquinolones family. Plaintiff is a resident of Glenview, Illinois.

After being diagnosed with a sinus infection, plaintiff was prescribed Levaquin® on November 18, 1997, by one of her physicians, Dr. David Knudtson. On or about the fifth day of taking the drug, plaintiff experienced severe pain in her leg. Pursuant to the instructions of Dr. Paul Kentor, plaintiff sought medical treatment at Glenbrook Hospital's Emergency Room for "foot drop." Plaintiff was treated at the emergency room by Dr. John Flaherty, who diagnosed her condition as Achilles tendonitis. Following Dr. Flaherty's orders, plaintiff consulted Dr. Melba Ovalle, a rheumatologist, who prescribed Medtrol®, a steroid, on November 24, 1997, to treat the inflammation in her tendons. Plaintiff also consulted Dr. Howard Sweeney, an orthopedic physician, who prescribed her an ankle-foot orthotic leg brace to treat the "foot drop."

On January 9, 1998, plaintiff was diagnosed with tendonitis of the tiblis tendon and paratenosynovitis of the Achilles tendon,*fn1 for which she began, and continues, to receive physical therapy. On March 1, 2005, plaintiff was informed by Dr. Kentor that the injuries she suffered, including tendinosis of the tiblis tendon, paratenosynovitis of the Achilles tendon, and muscle atrophy, were permanent and progressively worsening. Plaintiff does not allege that she had any contact with Dr. Kentor between 1997, when he suggested that she seek emergency medical attention, and this diagnosis in 2005. Following this diagnosis, plaintiff filed this suit in November 2005.

Levaquin® was first introduced in the United States in 1997, but information regarding the drug did not appear in the Physician's Desk Reference (PDR) until 1998. The package insert accompanying Levaquin® indicated tendon rupture as a possible side effect, but described it only as a "prolonged disability."


In ruling on a motion to dismiss for failure to state a claim, the court will dismiss a claim only where "it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Chaney v. Suburban Bus Div., 52 F.3d 623, 627 (7th Cir. 1995) (quoting Fed. R. Civ. P. 12(b)(6)). The court accepts all well-pleaded factual allegations in the complaint as true and draws all reasonable inferences in favor of the plaintiff. Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide the merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990).


The issue is whether plaintiff's complaint should be dismissed based on the two-year statute of limitations for personal injuries and product liability. Plaintiff argues that under Illinois law a cause of action does not accrue until a plaintiff knows or should have known that the product causing the injury was in fact the cause of her injury. Based on this assertion, plaintiff argues that the cause of action did not accrue until she was informed by Dr. Kentor on March 1, 2005, that her injuries were permanent and progressively worsening. Although the complaint fails to establish the time when she knew that Levaquin® was the cause of her injuries, plaintiff asserts for the first time in her reply brief that prior to March 1, 2005, that "none of the physicians treating [plaintiff] would acknowledge that the Levaquin® caused her injuries or that the injuries were permanent."*fn2

Defendant, in contrast, argues that plaintiff's cause of action accrued no later than early 1998, when plaintiff was diagnosed with tendinosis of the tiblis tendon and paratenosynovitis of the Achilles tendon. Defendant asserts that even if the statute of limitations is tolled under the discovery rule, plaintiff had constructive knowledge of her injuries and their cause in 1998, thus barring the present action.

Under Illinois law, a plaintiff must assert personal injury and product liability claims within two years of the date the cause of action accrued. 735 ILCS §§ 5/13-202, 5/13-213(d). To alleviate the harsh effect of this rule, Illinois follows the discovery rule, whereby the statute of limitations is tolled until the plaintiff knows or reasonably should know that he has been injured and that his injury was wrongfully caused. Mele v. Howmedica, Inc., 808 N.E.2d 1026, 1035 (Ill. 2004).

To determine when a plaintiff should reasonably have discovered the possibility of a wrongfully caused injury, Illinois courts have distinguished between insidious and traumatic injuries. Lowe v. Ford Motor Comp., 730 N.E.2d 58, 60 (Ill. App. Ct. 2000). When an injury is caused by a sudden, traumatic event, such as a car accident, the statute of limitations begins to run on the date of the injury. See Lofton v. General Motors, 694 F.2d 514, 517 (7th Cir. 1982). Where the injury is an insidious one that gradually manifests itself over a period of several years, however, the time of accrual is not so clearly defined. Id. In these cases, determining whether to apply the discovery rule involves "balancing the increase in difficulty of proof which accompanies the passage of time against the hardship to the plaintiff, who neither knows nor should have known the existence of his right to sue." Nolan v. Johns-Manville Asbestos, 421 N.E.2d 864, 867 (Ill. 1981) (quoting Rozny v. Marnul, 250 N.E.2d 656, 664 (Ill. 1969)). Because the connection between the inflammatory tendon disorders suffered by plaintiff and her ingestion of Levaquin® for a sinus ...

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