Franz v . Purdue Pharma Co. CV-05-201-PB 2/22/06

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Charlene E . Franz

v. Case N o . 05-cv-201-PB Opinion N o .

Purdue Pharma Co. et a l .

MEMORANDUM AND ORDER

This action stems from plaintiff Charlene E . Franz’s use of

OxyContin, a prescription painkiller she took at the direction of

her doctors. Franz alleges that she became addicted to the drug

and suffered bodily and mental harm as a result. She asserts a

variety of claims against defendants The Purdue Pharma Company,

Purdue Pharma L.P., Purdue Pharma Inc., The Purdue Frederick

Company, and The P.F. Laboratories (collectively, “Purdue”), as

well as against defendants The Abbott Laboratories and Abbott

Laboratories, Inc. (collectively, “Abbott”) and defendant

Mallinckrodt, Inc. (“Mallinckrodt”). Purdue has filed a motion

for summary judgment (Doc. N o . 13) in which Abbott and Mallinckrodt have joined.1 For the following reasons, I grant

defendants’ motion.

I. FACTUAL BACKGROUND2

Purdue manufactures, markets, and distributes OxyContin, a

prescription opioid analgesic drug that is sold in tablet form.

Compl. ¶¶ 3 0 , 3 2 . Abbott also markets and distributes OxyContin.

¶ 3 3 . Purdue designed OxyContin,

¶ 3 2 , which contains

oxycodone hydrochloride.

¶ 3 4 . Mallinckrodt supplies

oxycodone hydrochloride to Purdue.

In 1996, Franz’s doctors prescribed OxyContin to help her

manage a painful condition. Pl.’s B r . at 1 ; Med. Rec. 10/11/96.

Franz became addicted to the drug, Pl.’s B r . at 1 , which is a

Schedule II controlled substance under federal law. Compl. ¶ 1 .

In October 2000, Franz was hospitalized for addiction to and

withdrawal from OxyContin. Pl.’s B r . at 1 . In April 2004, she

1 Purdue’s arguments apply to Franz’s claims against Mallinckrodt and Abbott, including those that name only Mallinckrodt as a defendant. Accordingly, I treat the defendants as a group. 2 I describe the facts in the light most favorable to Franz, the non-moving party.

-2- filed this lawsuit.3 She alleges that OxyContin and oxycodone

hydrochloride are defective and unreasonably dangerous, that

OxyContin was marketed based on fraudulent misrepresentations

about its efficacy and sold without adequate instructions and

warnings, and that Purdue and Abbott conspired to increase

OxyContin’s market share. Her complaint includes claims for

strict products liability, negligence, breach of the implied

warranty of merchantability, fraud, and civil conspiracy.

II. STANDARD OF REVIEW

Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). In ruling on a motion for summary judgment, I construe

the evidence in the light most favorable to the nonmovant.

Navarro v . Pfizer Corp.,

0 , 94 (1st Cir. 2001).

3 Franz originally filed this action in the Southern District of Illinois. Purdue moved to have it transferred to South Carolina and then to New Hampshire. Def.’s B r . at 2 .

-3- The party moving for summary judgment “bears the initial

responsibility of . . . identifying those portions of [the

record] which it believes demonstrate the absence of a genuine

issue of material fact.” Celotex Corp. v . Catrett,

1 7 ,

323 (1986). Once the moving party has met its burden, the burden

shifts to the adverse party to “produce evidence on which a

reasonable finder of fact, under the appropriate proof burden,

could base a verdict for i t ; if that party cannot produce such

evidence, the motion must be granted.” Ayala-Gerena v . Bristol

Myers-Squibb Co.,

6 , 94 (1st Cir. 1996).

III. ANALYSIS

A. Strict Products Liability, Negligence, Fraud, and Conspiracy

Defendants argue that Franz’s claims for strict products

liability, negligence, fraud, and conspiracy are time-barred.

The parties agree that this procedural issue is governed by

Illinois law. See Def.’s B r . at 7 ; Pl.’s B r . at 3 n.3. Illinois

has a two-year statute of limitations for “actions for damages

for injury to the person.” § 735 Ill. Comp. Stat. § 5/13-202.

Franz’s strict products liability, negligence, fraud, and

-4- conspiracy claims are subject to the statute of limitations.4

Franz filed this action in April 2004, so her personal

injury claims are time-barred if the statute of limitations began

to run before April 2002. Defendants argue that the statute

began to run in October 2000, when Franz was hospitalized for

addiction to and withdrawal from OxyContin. In response, Franz

invokes the Illinois “discovery rule” and contends that the

limitations period did not commence until she realized that

defendants wrongfully caused her injuries. She claims that she

“blamed herself for her addiction” until April 2003, in part

because her doctor told her that OxyContin was safe and non-

addictive when he prescribed it for her. Pl.’s B r . at 5 ; Franz

Aff. ¶ 4 . In April 2003, Franz allegedly heard about a

4 Franz has not objected to defendants’ categorization of her fraud and conspiracy claims as personal injury actions. In Illinois, “[t]he determination of the applicable statute of limitations is governed by the type of injury at issue, irrespective of the pleader’s designation of the nature of the action.” Armstrong v . Guigler,

8 1 , 286 (Ill. 1996). Here, Franz has asserted claims for fraud and conspiracy, but the injuries she allegedly suffered as a result of defendants’ conduct are clearly personal in nature. Accord Pavlik v . Kornhaber,

3 1 , 748 (Ill. App. 2001) (“Although count III is styled as a fraud claim, plaintiff alleges the same personal injuries alleged in her negligence count . . . . plaintiff’s fraud count is controlled by the statute of limitations for personal injuries.”).

-5- television advertisement “concerning problems with OxyContin,”

Franz Aff. ¶ 8 , and realized that defendants might have been

responsible for her injuries. Id. ¶ 9.

The Illinois discovery rule provides that “[a]n injured

party’s cause of action accrues, and the statute of limitations

begins to run, when that person knows or reasonably should have

known of the injury and also knows or reasonably should have

known that the injury was caused by the actions of another.”

Kumpfer v . Shiley, Inc.,

3 8 , 739 (N.D. Ill. 1990).

“When the plaintiff becomes apprised of this knowledge, she is

under an obligation to further determine whether an actionable

wrong has been committed.”

Illinois law does not require

that a person have actual knowledge of another’s wrongful conduct

before the limitations period begins to run. Curry v . A.H.

Robins Co.,

1 2 , 216 (7th Cir. 1985). Instead, a court

must determine when “a reasonable person would have realized

[that her injuries] might have been the result of actionable

conduct.”

Although this is often a question of fact, where

the undisputed facts permit only one conclusion, “‘the question

becomes one for the court.’”

at 217 (quoting Witherell v .

Weimer,

(Ill. 1981)).

-6- The 7th Circuit’s decision in Curry is instructive. In that

case, the plaintiff had surgery to remove an allegedly defective

intrauterine device (“IUD”) in 1974. Although the plaintiff had

been informed that the device was safe and effective, she

experienced increasingly severe bleeding and pain after it was

inserted. She filed a lawsuit against the manufacturer of the

IUD in 1983, claiming that she did not recognize its potential

liability until 1981, when a co-worker suggested i t .

.

The 7th Circuit affirmed the district court’s holding that the

two-year statute of limitations began to run in 1974, when the

plaintiff had surgery to remove the IUD.

.

Franz’s situation is indistinguishable from Curry. Even if

Franz did not have actual knowledge of the potential connection

between her injury and defendants’ conduct until the television

advertisement aired in April 2003, she reasonably should have

realized that her injuries might have been caused by defendants

at the time she was admitted to the hospital for OxyContin-

related illness. Although Franz’s doctor told her that OxyContin

was non-addictive when he prescribed i t , a reasonable person

would have questioned that statement after she became addicted to

the drug and required inpatient care to treat symptoms of

-7- withdrawal. Upon her hospitalization, Franz reasonably should

have known that she had a possible claim against the defendants.

Accordingly, the statute of limitations began to run in October

2000 and expired in October 2002, well before Franz filed this

action. Defendants’ motion for summary judgment is granted as to

Franz’s strict products liability, negligence, fraud, and

conspiracy claims.

B. Breach of the Warranty of Merchantability

Defendants argue that Franz’s breach of warranty claim fails

because she did not give them notice of her claim prior to filing

this action.5 New Hampshire law requires a plaintiff to provide

notice of an alleged breach of warranty to a seller within a

reasonable time after he discovers or reasonably should have

discovered the breach. N.H. RSA § 382-A:2-607(3)(a).6 This

requirement extends to claims for breach of the implied warranty

of merchantability. Hooksett School Dist. v . W.R. Grace & Co.,

5 Franz’s breach of warranty claim is subject to a four- year statute of limitations and defendants do not argue that it is time-barred. See Curry, 775 F.2d at 215. 6 Illinois law is identical, see 810 Ill. Comp. Stat. § 5/2-607(3)(a), although Franz has not contested the applicability of New Hampshire law.

-8-

(D.N.H. 1984). Franz has not alleged that

she gave notice of her claim to defendants prior to filing this

lawsuit. Nor has she challenged defendants’ reasoning as to the

legal effect of failure to give notice. See

As a result,

defendants’ motion for summary judgment is granted as to Franz’s

breach of warranty claim.

IV. CONCLUSION

For the reasons described above, defendants’ motion for

summary judgment (Doc. N o . 13) is granted. The clerk is

instructed to enter judgment accordingly.

SO ORDERED.

/ s / Paul Barbadoro

Paul Barbadoro United States District Judge

February 2 2 , 2006

cc: Counsel of Record

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