Nicely v. Pliva, Inc.

181 F.Supp.3d 451

Norma Nicely, Plaintiff,

v.Pliva, Inc., and Barr Pharmaceuticals, Inc., Defendants.

Case: 6:15-cv-203-GFVT

United States District Court, E.D. Kentucky, Southern Division. London.

Signed August 18, 2016

Jasper D. Ward, IV, Jones Ward PLC, Louisville, KY, for Plaintiff.

Frederick M. Erny, Thomas McIntosh, Ulmer & Berne, LLP, Cincinnati, OH, for Defendants.

MEMORANDUM OPINION & ORDER

Gregory F. Van Tatenhove, United States District Judge

Plaintiff Norma Nicely is one of many individuals who have been diagnosed with tardive dyskinesia linked to the ingestion of either brand-name Reglan ® or a generic form of the drug metoclopramide. Nicely, like many others, has turned to the judicial system in an effort to obtain relief for her injuries. Unfortunately, Ms. Nicely's quest for legal redress has proven quite the undertaking.

Since Nicely's lawsuit was originally filed in Missouri state court in 2010, it has seen removal to federal court; remand to state court; multiple motions to dismiss; motions for reconsideration; and a successful trip to the Missouri Court of Appeals. In August of last year, Ms. Nicely's action was dismissed without prejudice by the Missouri state court in light of the Supreme Court's recent holding in Daimler AG v. Bauman , ––– U.S. ––––, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014), which addressed personal jurisdiction law as it relates to corporate defendants. Subsequently, Ms. Nicely re-filed her action in the Eastern District of Kentucky.

Defendant PLIVA, Inc., now seeks judgment on the pleadings on the grounds that Ms. Nicely's complaint in this Court is time-barred. For the reasons that follow, the Court DENIES the Defendant's motion.

I

Reglan ® is a brand-name, prescription version of the generic drug metoclopramide, which is used to treat gastroesophageal reflux disease. One of the risks associated with taking either brand-name Reglan ® or generic metoclopramide is tardive dyskinesia, a movement disorder. While the risk of acquiring tardive dyskinesia is low when ingesting the medicine for twelve weeks or less, the risk substantially increases for patients who consume the drug for periods of time longer than twelve weeks. See Metoclopramide , PUBMED HEALTH, U.S. NATIONAL LIBRARY OF MEDICINE (Oct. 1, 2015), http://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0011180/?report=details.

From around November 2006 through December 2007, Plaintiff Norma Nicely ingested around thirty to forty milligrams a day of this substance, as prescribed by her physician.¹ [R. 1 at 7.] Accordingly, Ms. Nicely ingested high doses of the drug for more than one year. [Id. ] Around December 2007, Ms. Nicely sought treatment from her primary care physician for tremors, involuntary movements, and anxiety. [Id.] Her physician recommended discontinuing the Reglan ®/metoclopramide use, and in January 2008, Ms. Nicely was diagnosed with tardive dyskinesia, secondary to Reglan ®>/metoclopramide. [Id.] In January 2010, Nicely was more specifically diagnosed with oral dyskinesia, secondary to Reglan ®/ metoclopramide. [Id. ]

According to her briefs, Ms. Nicely originally filed suit in 2010, but in 2012 her case became part of a consolidated proceeding pending in St. Louis County, Missouri, against PLIVA, Inc., and nine other defendants.² [R. 33 at 1.] A lengthy procedural history—which is detailed in the Plaintiff's response memorandum—ensued. [See R. 28 at 3-5.] In 2011, certain defendants attempted removal to the Eastern District of Missouri; however, the case was remanded to St. Louis City Circuit Court. [Id . at 3.] Various Reglan ®>/metoclopramide cases were than consolidated in St. Louis County, and Defendants PLIVA, Inc., and Barr Pharmaceuticals, Inc., filed motions to dismiss Nicely's case on personal jurisdiction, among other, grounds. [Id. ]

Around the same time, other dispositive motions were filed. After two days of oral argument, the court ruled on several of the dispositive motions [see id. ] but apparently declined to rule on the personal jurisdiction-based motions to dismiss. [See R. 33 at 2 (maintaining the court did not rule on the personal jurisdiction issue at all until after the Daimler decision).] Nicely appealed the court's decision to the Missouri Court of Appeals, and in August 2014, the appellate court partially overturned the unfavorable ruling. [R. 28 at 4.]

Meanwhile, on January 14, 2014, the United States Supreme Court announced its decision in Daimler AG v. Bauman , ––– U.S. ––––, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014). This decision clarified the Court's prior ruling in Goodyear Dunlop Tires Operations, S.A. v. Brown , 564 U.S. 915, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011), and arguably departed from settled law regarding corporate jurisdiction. See, e.g. , Judy M. Cornett & Michael H. Hoffheimer, Good-Bye Significant Contacts: General Personal Jurisdiction After Daimler AG v. Bauman, 76 OHIO ST. L.J. 102 (2015). In June 2015, the defendants filed "renewed" motions to dismiss Nicely's lawsuit in light of the Daimler decision. [R. 28 at 5.] At that time, the court dismissed Nicely's lawsuit without prejudice because of its lack of personal jurisdiction over the case after Daimler. [Id. ] On November 20, 2015, Ms. Nicely re-filed her action in the Eastern District of Kentucky [R. 1], and the lawsuit was transferred to the undersigned because of his familiarity with another Reglan ®/metoclopramide case, Harold Neeley, et al. v. Wyeth, LLC , 6:15-00054-GFVT.³ [See R. 6.] Defendant PLIVA, Inc., now seeks judgment on the pleadings on the basis that Ms. Nicely's suit is time-barred in this Court. [R. 24.]

II

A

PLIVA, Inc., seeks a judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), which provides that "[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). "The standard of review for a Rule 12(c) motion is the same as for a motion under Rule 12(b)(6) for failure to state a claim upon which relief can be granted." Fritz v. Charter Tp. of Comstock , 592 F.3d 718, 722 (6th Cir.2010) (citing Zi e gler v. IBP Hog Market, Inc. , 249 F.3d 509, 511–12 (6th Cir.2001) ). "For purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment." JPMorgan Chase Bank, N.A. v. Winget , 510 F.3d 577, 581 (6th Cir.2007) (internal citations omitted).

Well-pleaded complaints contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[D]etailed factual allegations" are unnecessary but the rule " ‘demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). As is the case with a motion to dismiss under Rule 12(b)(6), in a Rule 12(c) motion for judgment on the pleadings, the Court is required to "accept all the Plaintiffs' factual allegations as true and construe the complaint in the light most favorable to the Plaintiffs." Hill v. Blue Cross & Blue Shield of Mich. , 409 F.3d 710, 716 (6th Cir.2005) (citing Marks v. Newcourt Credit Group, Inc. , 342 F.3d 444, 451 (6th Cir.2003) ).

B

At issue is whether Ms. Nicely's complaint, filed in this Court during November 2015, is time-barred, or whether the action is saved through Kentucky's Savings Statute, Missouri's Savings Statute, or the doctrine of equitable tolling. As explained below, both states' Savings Statutes are inapplicable to the situation at hand; however, the Court is persuaded by Plaintiff Nicely's arguments in support of equitable tolling.

Kentucky recognizes a one-year statute of limitations for personal injury claims that are not based on breach of warranty. See KRS § 413.140(1)(a) ; Allen v. Abbotts Labs. , 11–146–DLB, 2012 WL 10508, at *3 (E.D.Ky. Jan. 3, 2012). For warranty claims, a four-year statute of limitations applies. KRS § 355.2-725(1) ; Puckett v. Comet Mfg. Corp. , 892 F.2d 80 (6th Cir.1989). In this case, it is undisputed that Ms. Nicely's November 2015 complaint was filed after the one-year and four-year limitations periods expired. [See R. 24-1 (indicating Ms. Nicely was initially diagnosed with tardive dyskinesia secondary to Reglan ®/metoclopramide in January 2008); R. 28.] However, Ms. Nicely maintains a Savings Statute should rescue her suit from any tardiness. [R. 28 at 9-11.]

As an initial matter, Ms. Nicely does not attempt to argue for the application of Missouri's Savings Statute [see R. 28]; only PLIVA discusses Missouri's statute in its initial motion for judgment on the pleadings. [See R. 24-1 at 4-5.] Accordingly, the Court treats the Missouri Savings Statute issue as waived and finds in favor of PLIVA on that point. See Humphrey v. U.S. Attorney General's Office , 279 Fed.Appx. 328, 331 (6th Cir.2008) (finding that a plaintiff's failure to oppose arguments raised in defendants' motion to dismiss is grounds for the district court to assume that opposition is waived).

As for the applicability of Kentucky's Savings Statute, the Court finds the statute inconsonant with the present situation. KRS § 413.270 provides:

If an action is commenced in due time and in good faith in any court of this state and the defendants or any of them make defense, and it is adjudged that the court has no jurisdiction of the action, the plaintiff or his representative may, within ninety (90) days from the time of that judgment, commence a new action in the proper court.

KRS § 413.270(1) (emphasis added). The plain language of that provision precludes relief for Ms. Nicely because she did not file her action "in due time and in good faith in any court of this state." Id. She originally began her suit in...