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In re Fluoroquinolone Products Liability Litigation

United States District Court, D. Minnesota

February 21, 2017

In re FLUOROQUINOLONE PRODUCTS LIABILITY LITIGATION This Document Relates to: Alan Henness, et al.
Johnson & Johnson, et al. Civil No. 15-3417 (JRT) Michael Cepuran
Bayer Healthcare Pharmaceuticals, Inc., et al. Civil No. 15-3595 (JRT) Rhonda Cervantes
Bayer HealthCare Pharmaceuticals, Inc., et al Civil No. 16-1443 (JRT) Deborah Haney
Bayer Healthcare Pharmaceuticals, Inc., et al. Civil No. 16-1501 (JRT) Arturo Rendon
Bayer Healthcare Pharmaceuticals, Inc., et al. Civil No. 16-1515 (JRT) Gladys Wilson
Bayer Healthcare Pharmaceuticals, Inc., et al. Civil No. 16-1571 (JRT)

          Andrea S. Hirsh, HERMAN GEREL, LLP, Yvonne M. Flaherty, LOCKRIDGE GRINDAL NAUEN PLLP, Bill Robins, III, HEARD ROBINS CLOUD LLP, Russell W. Budd, BARON & BUDD, P.C., for plaintiffs.

          Andrew K. Solow and Lori B. Leskin, KAYE SCHOLER LLP, Cicely R. Miltich, FAEGRE BAKER DANIELS LLP, for Bayer Healthcare Pharmaceuticals Inc. and Bayer Corp.



         Defendants Bayer Corporation and Bayer Healthcare Pharmaceuticals, Inc., (collectively “Defendants”) move to dismiss the claims of seven plaintiffs in the Fluoroquinolone Multi-District Litigation (“MDL”) based on the statutes of repose in place in Illinois, Oregon, Tennessee, and Texas. (See App. at 12-19, Aug. 1, 2016, Docket No. 237.)[1] Plaintiffs do not oppose the motion to dismiss with regard to one plaintiff, [2] and therefore, that plaintiff's claims are properly dismissed.[3] That leaves the claims of six plaintiffs for the Court to consider on this motion, including: three Illinois residents, who filed in Illinois[4] and Oklahoma, [5] (id., Tables 1.1, 1.2); one Oregon resident, who filed in Oklahoma, [6] (id., Table 1.2); and two Texas residents, who filed in Pennsylvania, [7] (id., Table 1.4). Because the Court finds Illinois law provides for a fraudulent concealment exception to its statute of repose, and questions remain over whether the Oregon statute of repose applies to the Oregon-resident plaintiff, the Court will deny the motion with regard to the Illinois-resident and Oregon-resident plaintiffs. However, the Court finds that the Texas statute of repose applies to the two Texas-resident plaintiffs and will grant the motion with regard to those plaintiffs.



         In reviewing a motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6), the Court considers all facts alleged in the complaint as true to determine if the complaint states a “claim to relief that is plausible on its face.” See, e.g., Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). To survive a motion to dismiss, a complaint must provide more than “‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action.'” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Although the Court accepts the complaint's factual allegations as true, it is “not bound to accept as true a legal conclusion couched as a factual allegation.” Bell Atl. Corp., 550 U.S. at 555 (internal quotation marks omitted). Rule 12(b)(6) also authorizes the Court to dismiss a claim on the basis of a dispositive legal issue. Neitzke v. Williams, 490 U.S. 319, 326-27 (1989).


         Defendants contend that the Illinois statute of repose bars the strict products liability claims alleged by three Illinois-resident plaintiffs who filed in Illinois and Oklahoma. For the purposes of this motion, Plaintiffs do not dispute that Illinois law applies to these cases. (Pls.' Mem. in Opp'n at 3, Sept. 1, 2016, MDL No. 15-2642, Docket No. 257.) Illinois's statute of repose restricts any strict “product liability action” commenced after (1) 12 years from the date of first sale to any party, (2) 10 years from the first sale to a consumer, or (3) 8 years from the date of injury.[8] 735 Ill. Comp. Stat. 5/13-213. Plaintiffs do not dispute that the initial sale and injuries occurred prior to those time periods; rather, they assert their claims are still viable due to Defendants' fraudulent concealment.

         In DeLuna v. Burciaga, the Illinois Supreme Court found a fraudulent concealment exception to the statute of repose for legal malpractice claims. 857 N.E.2d 229, 240 (Ill. 2006). The court relied on an Illinois statutory provision that states:

Fraudulent concealment. If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within 5 years after the person entitled to bring the same discovers that he or she has such cause of action, and not afterwards.

735 Ill. Comp. Stat. 5/13-215. The court noted that the provision states “an action, ” and not any particular kind of action, and the position of the provision, stating:

the legislature chose to situate section 13-215 after a series of other sections-containing both statutes of limitations and statutes of repose-including provisions pertaining to actions for medical malpractice, product liability, acts or omissions in construction practice, criminal acts, acts or omissions in public accounting, and legal malpractice.

DeLuna, 857 N.E.2d at 240. Based on this positioning of the fraudulent concealment provision, the court “inferred that section 13-215 applies to all of the preceding sections.” Id. The court specifically considered whether § 13-215 applied to statutes of repose along with statutes of limitations, and determined that it did. See Id. (stating, “[t]he question, then, is whether the legislature intended section 13-215 as a tolling provision or exception applicable to statutes of repose, as well as statutes of limitations, ” and finding “no reason why section 13-215 should not apply to statutes of repose”). Although the court relied on the attorney-client relationship in justifying the tolling of the particular statute of repose at issue, there is no textual basis to find that the fraudulent concealment provision applies to the legal malpractice statute of repose but not the product liability statute of repose. Thus, the Court finds that under DeLuna's statutory interpretation, the fraudulent concealment exception applies to the products liability statute of repose.[9]

         Defendants also argue that even if there is a fraudulent concealment exception to the Illinois statute of repose, Plaintiffs have not pleaded facts sufficient to meet exception. Allegations of fraudulent concealment must satisfy the Rule 9(b) particularity standard. Great Plains Trust Co. v. Union Pac. R.R. Co., 492 F.3d 986, 995-96 (8th Cir. 2007). “This means the who, what, when, where, and how: the first paragraph of any newspaper story.” Id. (quoting DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990)). Generally, to establish fraudulent concealment under Illinois law, a plaintiff must “show affirmative acts by the defendant which were designed to prevent, and in fact did prevent, the discovery of the claim.” Gredell v. Wyeth Labs., Inc., 803 N.E.2d 541, 548 (Ill.App.Ct. 2004).

         Defendants contend that Plaintiffs cannot rely on the same fraud that underlies their cause of action to establish fraudulent concealment, but must show some affirmative, separate attempt to hide liability. However, Defendants cite Gredell, in which the Illinois Appellate Court found that the plaintiff's allegations that the defendants fraudulently misrepresented a product's effectiveness without scientific support were insufficient to find fraudulent concealment not only because the same actions formed the basis of the plaintiff's consumer fraud action, but also because those actions “d[id] not . . . tend to conceal violations of the Consumer Fraud Act.” Id. at 549. Accordingly, “[f]raudulent misrepresentations which form the basis of the underlying cause of action do not constitute fraudulent concealment under section 13-215, ” unless “the misrepresentations also tended to conceal the cause of action.” Foster v. Plaut, 625 N.E.2d 198, 204 (Ill.App.Ct. 1993).

         Here, Plaintiffs allege that Defendants' fraud - concealing the true risk and connection between Defendants' drugs and peripheral neuropathy - tended to conceal the cause of action by preventing them from discovering the potential for liability. Thus, the fact that Plaintiffs rely on the same allegations for their underlying claims and to establish fraudulent concealment is not fatal to Plaintiffs' claims. Additionally, Plaintiffs have alleged fraudulent concealment with sufficient particularity. Plaintiffs allege that Defendants engaged in a rebranding scheme in the early 2000s, to market their products for common infections, not just serious infections. (Second Am. Master Compl. ¶ 118, Aug. 12, 2016, Docket No. 241.) At the same time, Defendants were allegedly aware of possible side effects, including peripheral neuropathy. (Id. ¶¶ 119-24.) Plaintiffs allege that Defendants concealed this risk by “focusing on the incidence of relatively benign side effects, such as headaches or dizziness, while concealing the equally common but far more serious symptoms of peripheral neuropathy.” (Id. ¶¶ 126-32.) Plaintiffs also allege that Defendants misled regarding the irreversibility of peripheral neuropathy from September 2004 to August 2013 for Levaquin and Cipro, and from August 2012 through August 2013 for Avelox, by stating in product labelling that “patients experiencing symptoms of peripheral neuropathy should discontinue treatment ‘in order to prevent the development of an irreversible condition, '” when in fact, the condition could be irreversible regardless of whether the patient stopped taking the drug. (Id. ¶¶ 152-55.) Plaintiffs allege that Defendants in some cases avoided reporting peripheral neuropathy adverse reactions caused by their drugs. (Id. ¶¶ 158-61.) Thus, at this stage of litigation, the Court finds that Plaintiffs have sufficiently alleged fraud that tended to conceal their causes of action.

         Defendants counter that fraudulent concealment does not apply to Plaintiffs' claims because they were not diligent in pursuing their claims. “Fraudulent concealment is inapplicable where the plaintiff had the ability to obtain the information necessary to pursue his [or her] claim.” Pace Am., Inc. v. Elixir Indus., No. 06 C 4661, 2009 WL 211953, at *3-4 (N.D. Ill. Jan. 27, 2009) (finding the plaintiff could not rely on fraudulent concealment because the plaintiff could have weighed the delivered product or verified how the seller was measuring the total weight during their seven year business relationship).[10] Defendants argue that Plaintiffs do not meet the fraudulent concealment standard because, starting in 2004, fluoroquinolones contained warnings about peripheral neuropathy, and even if - as Plaintiffs argue - Defendants did not fully disclose the extent of the risk, Defendants at least notified Plaintiffs that the drugs could have been the cause of peripheral neuropathy. Defendants argues that Plaintiffs acknowledged some knowledge by alleging that “some aspect of the injury may have been known to Plaintiffs and Plaintiffs' physicians, ” but that “due to Defendants' intentional concealment, an essential fact to bring their cause of action was unknown.” (Second Am. Master Compl. ¶ 180.)

         These arguments may be relevant in determining whether Plaintiffs were in fact diligent and could not have discovered the cause of their injury earlier; at this stage, however, Plaintiffs only must allege sufficient facts, taken as true, to support a finding that they were diligent. Plaintiffs allege that their physicians denied or were unaware of the possibility that the fluoroquinolones could have caused their injuries until the FDA's risk disclosure in August 2013, due to “Defendants' omissions from and misrepresentations to the medical community and to the general public, ” discussed above. (Id. ¶ 168.) Accordingly, Plaintiffs allege that they could not have known about the relationship between their peripheral neuropathy and Defendants' drugs until August 2013 because Defendants concealed “the true character, quality, and nature of their [fluoroquinolones].” (Id. ¶¶ 175-76.) Plaintiffs have pleaded facts suggesting that they could not have learned of the link between fluoroquinolones and their injuries by exercising ordinary diligence prior to the 2013 FDA disclosure, and thus, the Court finds that Plaintiffs have sufficiently alleged diligence at this stage of proceedings.

         In sum, the Court will deny Defendants' motion to dismiss with regard to the Illinois-resident plaintiffs because Plaintiffs' allegations satisfy the statutory fraudulent concealment ...

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