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E.D. v. Abbott Laboratories, Inc.

United States District Court, S.D. Illinois

October 19, 2016

E.D., a minor, by MARYANN DOTEGOWSKI individually and as next friend of E.D., Plaintiffs,
v.
ABBOTT LABORATORIES, INC., Defendant.

          MEMORANDUM AND ORDER

          NANCY J. ROSENSTENGEL, UNITED STATES DISTRICT JUDGE

         Before 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.

         Background

         Plaintiff 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.

         Plaintiffs 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.[1]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 The California court granted summary adjudication as to any claims abandoned or withdrawn by Plaintiffs.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.

         The 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.[2] (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 below:

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).

         After a 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).

         Plaintiffs 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.”[3] (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.

         Discussion

         Federal 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).

         Concerning 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.

         The 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 the case.”)

         Consequently, 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 ...


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