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In re Depakote

United States District Court, S.D. Illinois

April 11, 2017

ABBOTT LABORATORIES, INC., and ABBVIE, INC., Defendants. RHEALYN ALEXANDER, et al ., Plaintiffs,



          NANCY J. ROSENSTENGEL United States District Judge

         On February 8, 2017, Defendants filed several identical motions for summary judgment concerning the expiration of the Indiana statute of repose as to the claims of certain Plaintiffs.[1] Compare (Case No. 12-CV-57, Doc. 115) with (Case No. 13-CV-1345, Doc. 26). Those Plaintiffs filed uniform responses to the motions on March 10, 2017. See e.g., (Case No. 12-CV-57, Doc. 120); (Case No. 13-CV-1345, Doc. 27). On March 17, 2017, Defendants filed uniform replies. See e.g., (Case No. 12-CV-57, Doc. 127); (Case No. 13-CV-1345, Doc. 30). The motions, responses, and replies are all identical; therefore the Court issues one omnibus Order addressing the issue contained therein. References to the docket in this Memorandum and Order will be to Case No. 12-CV-57, unless otherwise specified.

         Factual and Procedural History

         Plaintiffs in this mass action allege that they suffered serious birth defects as a direct result of exposure to Depakote.[2] (Doc. 1-15, pp. 5; 9). The exposure for each Plaintiff is alleged to have occurred in utero after his or her biological mother ingested Depakote during pregnancy. (Doc. 1-15, pp. 3-4). Plaintiffs contend that Defendants' failed to warn their biological mothers of the real risk of birth defects, even though Defendants knew or reasonably should have known of the true risks.

         The individual claims subject to the instant motion include: (1) Ginnifer E. and Philip Baugher, individually as parents and next friends of F.B., a minor; (2) Denise Estes, individually as parent and next friend of L.A.E., a minor; (3) Nicky Name (also known as Nicky Ward), individually as parent and next friend of J.W.A., a minor; (4) Laurie Campbell, individually and as parent and natural guardian of M.H., a minor; (5) Kathy Garrett, individually and as next friend of C.T; (6) Angie Stevenson, individually as parent and next friend of D.S., a minor; (7) Sherry Williams, individually and as next friend of T.C., a minor; (8) Linda Burns; and (9) Christopher Doty, individually and as personal representative of the estate of Ryan Doty.[3]

         The Court has jurisdiction over the Depakote mass action and all of the individual claims via diversity jurisdiction, including expanded diversity under 28 U.S.C. § 1332(d)(11)(B)(i), also known as the Class Action Fairness Act (“CAFA”). See (Doc. 667) (dismissing several Plaintiffs for lack of subject matter jurisdiction, as they failed to properly plead typical diversity jurisdiction or invoke CAFA). Each relevant Plaintiff is a resident of the state of Indiana; Defendants' principal place of business is in Illinois. (Doc. 120, p. 2); (Case No. 12-CV-52, Doc. 37-3, pp. 2-5). Additionally, the prescribing decisions, conception, gestation, and birth all occurred in the state of Indiana. (Doc. 115-2, p. 2); see also (Doc. 120, p. 2).


         Defendants seek summary judgment on the grounds that the Indiana Product Liability Act's statute of repose extinguishes all of Plaintiffs' claims “that were filed more than ten years after the delivery of the Depakote to which they attribute their claims.” (Doc. 115, p. 2).

         Federal courts sitting in diversity apply the choice-of-law principles of the forum state to determine which law governs the proceeding. West Ben Mut. Ins. Co. v. Arbor Homes LLC, 703 F.3d 1092, 1095 (7th Cir. 2013); see also Midwest Grain Prods. of Ill., Inc. v. Productization, Inc., 228 F.3d 784, 787 (7th Cir. 2000). Illinois only requires a choice-of-law determination “when a difference in law will make a difference in the outcome.” Townsend v. Sears, Roebuck & Co., 879 N.E.2d 893, 898 (Ill. 2007).

         Illinois' statute of repose requires plaintiffs to commence their action within twelve years of the date of the first delivery by a seller, or within ten years from the date of the first delivery to the initial consumer, whichever expires first. 735 Ill. Comp. Stat. 5/13-213(b) (2016). However, subsection (d) of the statute provides for a tolling exception based on a legal disability, including minority status. 735 Ill. Comp. Stat. 5/13-213(d) (2016).

         Conversely, the Indiana statute of repose provides for a ten year window to file a claim, without a tolling exception for those suffering from a legal disability. Ind. Code § 34-20-3-1 (2016). While Indiana provides for a tolling statute, it only applies to the two year statute of limitations and not the ten year statute of repose. Ind. Code § 34-11-6-1 (2016) (“A person who is under legal disabilities when the cause of action accrues may bring the action within two (2) years after the disability is removed.”); see Campbell v. Supervalu, Inc., 565 F.Supp.2d 969, 975 (N.D. Ind. 2008) (explaining Ind. Code § 34-11-6-1 does not toll the statute of repose “because [the statute of repose's] very purpose is to provide the manufacturer or seller with closure for potential liability after a specified number of years.”).

         There is no dispute that each claim was filed more than ten years after the injured Plaintiffs were born. (Doc. 120, p. 3); (Doc. 115, p. 3). There is also no dispute that under Illinois law the claims continue, while under Indiana law the claims are barred by the statute of repose. Rather, the singular dispute presented to the Court concerns which law to apply.

         Illinois applies the “most significant relationship” test to choice-of-law disputes. Westchester Fire Ins. Co. v. G. Heileman Brewing Co., 747 N.E.2d 955, 961 (Ill. 2001); see also Ingersoll v. Klein, 262 N.E.2d 593 (Ill. 1970) (adopting the “most significant relationship” test of Restatement (Second) of Conflict of Laws). Courts are not to conduct a singular “one-state-fits-all” approach to the choice-of-law analysis; instead, the Illinois Supreme Court has declared that courts must engage in depecage. Townsend, 879 N.E.2d at 901. “[D]epecage…refers to the process of cutting up a case into individual issues, each subject to a separate choice-of-law analysis.”

         Illinois applies “a two-step process in which the court (1) chooses a presumptively applicable law under the appropriate jurisdiction-selecting rule, and (2) tests this choice against the principles of § 6 [Restatement (Second) of Conflict of Laws] in light of relevant contacts identified by . . . § 145 (torts) . . . .” Townsend, 879 N.E.2d at 903; In re Testosterone Replacement Therapy Prod. Liab. Litig. Coordinated Pretrial Proceedings, 159 F.Supp.3d 898, 924 (N.D. Ill. 2016).

         Turning to the first step, Illinois maintains a “strong presumption that the law of the state where the injury occurred governs in a personal injury case . . . .” Smith v. I-Flow Corp., 753 F.Supp.2d 744, 747 (N.D. Ill. 2010) (citing Miller v. Long-Airdox Co., 914 F.2d 976, 978 (7th Cir. 1990)); Kamelgard v. Macura, 585 F.3d 334, 340-41 (7th Cir. 2009) (explaining “lex loci delicti-the law of the place of the wrong” is treated as a presumption).

         This Court has previously addressed the challenges associated with determining the “place of injury” in cases involving in utero exposure to substances that can cause birth defects:

Interstate travel further frustrates the ability to determine a place of injury, even when the state of conception is “known.” The claim of E.G. (parent Christina Raquel) Case No. 12-cv-55, provides a perfect example of the difficulty in determining place of injury. Ms. Raquel allegedly conceived E.G. in California, however, the primary window for the development of spina bifida occurred in Alabama. Case No. 12-cv-52 (Doc. 469, at p. 6). ...

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