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Orso v. Bayer Corp.

February 2, 2009


The opinion of the court was delivered by: Joan B. Gottschall United States District Judge

Judge Joan B. Gottschall


Before the court is a motion for summary judgment filed by defendant Bayer Corporation ("Bayer"). For the reasons stated below, the motion is granted and, consequently, judgment is entered in favor of Bayer.


On January 8, 2004, the plaintiff, Kathy Urso ("Urso"),*fn2 filed a putative class-action complaint against Bayer alleging strict liability, negligence, consumer fraud, and deceptive trade practices. Diversity jurisdiction exists because Urso is a citizen of Illinois, Bayer is a citizen of Indiana and Pennsylvania, and the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332. The parties agree that Illinois law applies.

On June 27, 2008, the court dismissed Urso's claims for consumer fraud and deceptive trade practices after Urso failed to file any response to Bayer's motion to dismiss. Thus, at issue are Urso's claims of strict liability and negligence, as alleged in her Second Amended Complaint. In these counts, Urso alleges that she has suffered nasal and sinus tissue damage and a dependence on the topical nasal decongestant, Neo-Synephrine(r), which she alleges is defective and unreasonably dangerous in design and also negligently designed and packaged. See 2d Am. Compl. (Counts I & II). No class certification motion has been filed as of this date and Urso remains the sole named plaintiff.

The undisputed facts reveal that Urso has used Neo-Synephrine(r), or a similar product, on a daily basis since around June 1990. She began using Neo-Synephrine(r) after seeing her doctor, Dr. Desai, regarding a stuffed up nose and breathing difficulties. She read the directions on the Neo-Synephrine(r) packet before using the product and she knew that the product should not be used for more than three days. She kept using the product "because, without it, if someone were to put their hand over my mouth, I would have died. . . . [My nose] is so swollen inside, I can't breathe."*fn3 Urso Dep. 25:19-23, Ex. A to Supp. Materials for Def.'s Mot. for Summ. J. At some point in 1991, Urso met with Dr. Desai again to discuss options to stop using Neo-Synephrine(r). She tried other medication, but upon concluding that nothing else worked, she returned to using Neo-Synephrine(r) even though Dr. Desai "thought that [she] shouldn't be using it."*fn4 Id. at 26:4-7.

Urso, suffering from cold and flu symptoms, consulted a second doctor, Dr. Calabria, on September 11, 2000. Dr. Calabria diagnosed Urso as having "chronic rhinitis with likely addiction (physiologic) to nasal decongestant drops." He advised her to use a different product to try to wean off nasal decongestants, including Neo-Synephrine(r). He also discussed with her the problem of "rebound congestion," namely that "when coming off [products like NeoSynephrine(r)], people can get more congested[.]"*fn5 Calabria Dep. 21:12-14, Ex. B to Supp. Materials for Def.'s Mot. for Summ. J. Dr. Calabria prescribed Nasonex(r) so that Urso could wean herself off Neo-Synephrine(r); however, because Urso believed it did not work as effectively, she discontinued the Nasonex(r) and resumed daily use of Neo-Synephrine(r).

In June 2003, Urso's husband had a chance encounter with a man, Ted Kelso ("Mr. Kelso"). Mr. Kelso mentioned that he was addicted to Neo-Synephrine(r), which he said caused rebound congestion, and that he had nasal tissue damage from extended use of the nasal spray. He told Urso's husband that he had filed a lawsuit against Bayer and provided contact information for his lawyer. Urso sought legal advice from Mr. Kelso's lawyer shortly thereafter. Urso informed the lawyer that she had not heard that Neo-Synephrine(r) could be the cause of her dependency on the product or that it could be the cause of her ongoing congestion until her husband spoke to Mr. Kelso. Urso filed suit against Bayer on January 8, 2004.


Bayer argues that Urso's suit is barred by the applicable statute of limitations and that, therefore, Bayer is entitled to summary judgment in its favor. Urso contends that there is a question of material fact as to when she knew or should have known about the wrongful cause of her alleged injury, and that, therefore, the statute of limitations issue must go to the jury.

A. Legal Standard

Summary judgment is appropriate when the record reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). "A 'genuine issue' exists where 'there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'" AA Sales & Assocs., Inc. v. Coni-Seal, Inc., 550 F.3d 605, 608-09 (7th Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). In seeking a grant of summary judgment, the moving party must identify "those portions of 'the pleadings, depositions, answers to the interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. In response, the non-moving party cannot rest on the pleadings, but must designate specific material facts showing that there ...

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