United States District Court, S.D. Illinois
E.D., a minor, by MARYANN DOTEGOWSKI individually and as next friend of E.D., Plaintiffs,
ABBOTT LABORATORIES, INC., Defendant.
MEMORANDUM AND ORDER
J. ROSENSTENGEL, UNITED STATES DISTRICT JUDGE
the Court is Defendant's Motion to Dismiss filed on June
7, 2016. (Doc. 8). For the reasons set forth below, the
Motion to Dismiss is denied.
Maryann Dotegowski, individually and as next friend of
plaintiff E.D., filed her original complaint pursuant to 28
U.S.C. § 1332 on April 18, 2016, alleging, inter
alia, that E.D. sustained birth defects from Maryann
Dotegowski's use of Defendant's prescription drug
Depakote. (Doc. 1). Plaintiffs allege that Depakote is an
inherently dangerous drug and that Defendant knew or should
have known of the dangerous condition of its product but
failed to adequately warn or instruct physicians and
consumers of the risks of the drug. Id. at 7.
originally filed an action in the Superior Court of
California, County of Los Angeles, on July 29, 2010. (Doc. 8,
at p. 4). The case was eventually transferred to the Superior
Court for the County of San Francisco. Id. After two
years of discovery, Defendant moved for summary judgment or,
in the alternative, summary adjudication.Id. at 5.
Defendant asserted, inter alia, that the claims were
barred by the relevant California statute of limitation.
Id. In response, Plaintiffs asserted that Ms.
Dotegowski did not become aware of the actual cause of the
injury until much later in time and therefore the
“discovery rule” tolled the statute of
limitation. (Doc. 8-8. at p. 3). With the exception of the
failure to warn theory, Plaintiffs withdrew all other claims.
Id. at 2-3. The California court granted summary
adjudication as to any claims abandoned or withdrawn by
Plaintiffs. Id. at 3.
court ultimately found that a triable issue remained
concerning the discovery rule and accordingly, denied
Defendant's Motion for Summary Judgment. (Doc. 8, at p.
5). Defendant then moved to bifurcate the statute of
limitation issue from the merits of the case. Id.
Over Plaintiffs' objection, the California court granted
the motion to bifurcate. Before the “mini-trial”
on the statute of limitation issue, however, Plaintiffs
provided supplemental briefing to the trial judge, which
resulted in a finding that a different California statute of
limitation applied to the claim. (Doc. 9-5, at p. 10). Before
any further proceedings occurred, the appellate court
approved Defendant's writ of review and requested
briefing from the parties concerning which statute should
apply. (Doc. 8-11). Before a decision was issued, the parties
stipulated that the statute of limitation without the tolling
provision should apply in the case. See Id.
Thereafter, the court reset the bifurcated trial, and the
parties submitted a single question to the jury, as set forth
Before July 29, 2004, did Maryann Dotegowski discover, or
know of facts that would have caused a reasonable person to
suspect, that E.D. had suffered harm that was caused by
someone's wrongful conduct. (Doc. 9, at p.2).
week-long trial, the jury resolved this question in the
affirmative, thereby extinguishing Plaintiffs use of the
discovery rule to toll the statute of limitation. (Doc. 8, at
p. 7). On September 1, 2015, the Superior court entered the
Judgment on Jury Verdict. (Doc. 8-16). The Judgment noted
that the jury verdict in favor of Defendant concerned the
single procedural question regarding the statute of
limitation and that all other claims in the First Amended
Complaint were disposed of via summary adjudication in favor
of Defendant. (Doc. 8-16, at pp. 2-4).
filed their Complaint with this Court on April 18, 2016,
alleging diversity of citizenship as the basis for the
Court's subject matter jurisdiction. (Doc. 1). The
complaint raises “the same claim against the same
party.” (Doc. 9, at pp. 6; 1). The current dispute
before the Court concerns whether the California Court's
prior judgment, based of the California statute of
limitation, precludes Plaintiffs from litigating their claim
in the Southern District of Illinois.
courts must apply the statutes of limitation of the state in
which they sit when diversity of citizenship is the only
basis for subject matter jurisdiction. Reinke v.
Boden, 45 F.3d 166, 170 (7th Cir. 1995). The Illinois
statute of limitation for a minor is automatically tolled
until two years after she reaches the age of eighteen.
See Parks v. Kownacki, 193 Ill.2d 164, 176, (2000)
(citing 735 Ill. Comp. Stat. Ann. 5/13-211). As plaintiff
E.D. is still a minor, it is undisputed that the Illinois
statute of limitation does not bar the current claim. (Docs.
8-10). Rather, Defendant asserts that res judicata
and the doctrine of judicial estoppel preclude the current
action. (Doc. 8).
res judicata, 28 U.S.C. § 1738 provides that
“a federal court must give the judgment of a state
court the same effect that it would have in the courts of the
state of rendition.” Reinke v. Boden, 45 F.3d
166, 169 (7th Cir. 1995) (citing the same). The key question
therefore is what effect California intends from a judgment
based on the running of the statute of limitation.
Traditionally, statutes of limitation fall into one of two
categories: ones that are an integral part of the cause of
action and ones that are considered procedural in nature.
Reinke v. Boden, 45 F.3d 166, 169 (7th Cir. 1995).
When the limitation period lapses in the first category, the
resulting judgment is considered “on the merits.”
Conversely, in the second category, the expiration of the
limitation period only extinguishes the possibility of
recovery in a particular forum. Id.
California statute of limitation is considered procedural in
nature and falls squarely into the second category.
Lackner v. LaCroix, 25 Cal.3d 747, 751 (1979)
(“Termination of an action by a statute of limitations
defense must be deemed a technical or procedural as
distinguished from a substantive termination.”);
Koch v. Rodlin Enterprises, 223 Cal.App.3d
1591, 1596, 273 Cal.Rptr. 438, 441 (Ct. App. 1990)
(“Termination of an action by a statute of limitations
is deemed a technical or procedural, rather than a
substantive, termination.”); Mid-Century Uns. Co.
v. Superior Court, 138 Cal.App.4th 769, 776
(Cal.Ct.App. 2006) (“[T]he purpose served by dismissal
on limitations grounds is in no way dependent on nor
reflective of the merits-or lack thereof-in the underlying
action.”); see Ritchey v. Upjohn Drug Co., 139
F.3d 1313, 1319 (9th Cir. 1998) (“California has
emphasized the fact that the statute of limitations is a kind
of procedural bar, and not one which relates to the merits of
while the effect of the “judgment” based on the
California statute of limitation may have extinguished any
remedy in the California forum, it does not preclude
Plaintiffs from filing their case in a separate forum where
the statute of limitation ...