Paulsen v. Laboratories

TERRY PAULSEN, Plaintiff, v. ABBOTT LABORATORIES, et al., Defendants.

Case No. 15-cv-4144

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

March 27, 2018

Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Plaintiff Terry Paulsen ("Plaintiff") brings this action against Defendants Abbott Laboratories, Takeda Pharmaceuticals of North America, Inc., Takeda Chemical Industries, Inc., and TAP Pharmaceutical Products, Inc. ("Defendants") alleging negligence, strict products liability, breach of express and implied warranty, and fraudulent and negligent misrepresentation. Currently before the Court are Defendants' motions [96; 99] to dismiss all claims in the complaint with prejudice. For the reasons stated below, Defendants' motions [96] and [99] are granted in part and denied in part. The motion to dismiss TAP as a Defendant pursuant to Rule 12(b)(5) is granted to the extent that Plaintiff is given until May 22, 2018 to serve an amended complaint upon a proper defendant (whether that is TAP or a proper successor to TAP). If Plaintiff fails to serve a proper defendant by this date, TAP will be dismissed from the case. All claims against Defendant Takeda Inc. (and Takeda Ltd., to the extent that it is the party Plaintiff intended to name) are dismissed with prejudice. All claims against Defendant TPNA are dismissed without prejudice. Plaintiff's claims against Defendant Abbott for negligence, breach of express warranty, breach of implied warranty, fraudulent misrepresentation, and negligent misrepresentation are dismissed without prejudice. Plaintiff may proceed at this time against Abbott on her claims for strict products liability and strict products liability—failure to warn. Plaintiff is given until April 24, 2018 to file an amended complaint consistent with this opinion, if Plaintiff believes that she can overcome the deficiencies identified below for the dismissed claims. This case is set for further status hearing on May 24, 2018 at 9:00 a.m.¹

I. Background²

A. Plaintiff's Lupron Injections

Plaintiff's claims are based on the injuries she allegedly suffered after being injected with the drug depot leuprolide acetate ("Lupron"). Lupron was developed in the 1980s and approved by the FDA for the treatment of prostate cancer in 1989. [1, ¶ 10.] The FDA later approved Lupron as a treatment for endometriosis in 1990, and as a treatment for anemia associated with uterine fibroids in 1995. [Id., ¶ 11.] According to Plaintiff, reports submitted to the FDA in the 1990s indicated that users of Lupron were incurring bone loss, and the FDA subsequently approved Lupron add-back therapy designed to counteract Lupron's bone-depleting effects. [Id., ¶¶ 12-14.]

Plaintiff is an individual residing in Georgia. [1, ¶ 3.] Plaintiff was prescribed Lupron to treat endometriosis, and she was injected with Lupron on two occasions from February 2004 to March 2004. [Id., ¶ 19.] Plaintiff subsequently received a diagnosis of severe joint arthropathy in April 2008, and she was diagnosed with osteoporosis in May 2010. [Id., ¶ 20.] Plaintiff alsosuffers from chronic joint pain, muscle pain, and fatigue. [Id.] Plaintiff alleges that she suffered these personal injuries as a result of her Lupron injections. [Id., ¶¶ 24, 34, 42, 49, 56, 66, 72.]

B. The Defendants

Plaintiff names four Defendants in her complaint. Defendant Abbott Laboratories ("Abbott") is an Illinois corporation. [1, ¶ 4.] Defendant Takeda Pharmaceuticals of North America, Inc. ("TPNA"), according to Plaintiff, is a wholly-owned subsidiary of Takeda Chemical Industries, Ltd. ("Takeda Ltd."). [Id., ¶ 5.] Defendant TAP Pharmaceutical Products, Inc. ("TAP"), according to Plaintiff, is a New York corporation operating as a joint venture between Takeda Ltd. and Abbott. [Id., ¶ 6.] Takeda and Abbott each owned and controlled a fifty percent stake in TAP during the relevant time period. [Id.] Also named in the caption as a Defendant is Takeda Chemical Industries, Inc. ("Takeda Inc."). The complaint contains no allegations regarding Takeda Inc., nor does it mention that entity anywhere but the caption. However, the complaint does allege that Takeda Ltd. is the parent company of TPNA and is a fifty-percent owner of TAP. [Id., ¶¶ 5-6.]

Defendants dispute several of Plaintiff's allegations regarding Defendants TPNA, Takeda Inc., and TAP. According to Defendants, TPNA is the former name of the company now known as Takeda Pharmaceuticals U.S.A. ("TPUSA"). [See 97, at 4.] Takeda Inc., according to Defendants, does not exist as a corporation. [Id.] To the extent that, in Plaintiff's references to Takeda Inc., Plaintiff meant to refer to Takeda Ltd., Defendants state that Takeda Ltd. is now known as Takeda Pharmaceutical Company Ltd. ("Takeda Pharmaceutical Ltd."). [Id.] Takeda Pharmaceutical Ltd. is a Japanese corporation headquartered in Japan. [Id.] TPUSA is a wholly-owned subsidiary of Takeda Pharmaceutical Ltd. [Id., at 5.]

According to Defendants, TAP no longer exists as an entity. At the time Plaintiff alleges that she received her injections in 2004, TAP was responsible for the Lupron business in the United States. [97, at 3.] TAP was jointly and equally owned by Takeda America Holdings (a wholly-owned subsidiary of Takeda Ltd.) and Abbott. [Id., at 3.] In April 2008, TAP concluded as a joint venture, and Abbott exchanged its fifty-percent equity interest in TAP for the assets, liabilities, and employees related to TAP's Lupron business. [Id.] Abbott then spun off the Lupron business into a separate publicly-traded company, AbbVie Inc. ("AbbVie"), in 2012. [100, at 2.] In July 2008, TAP was merged into TPNA and dissolved. [97, at 4.] As a Delaware corporation, TAP continued as a corporate body for three more years (until 2011) before completely ceasing to exist. [Id. (citing 8 Del. C. § 278).]

Turning back to Plaintiff's substantive allegations against Defendants, Plaintiff alleges that TAP was at all relevant times responsible for the research, development, testing, manufacturing and sales, distribution, and/or marketing of Lupron. [1, ¶ 8.] TAP focused its marketing efforts on securing Lupron use and sales by physicians. [Id., ¶ 7.] Plaintiff also alleges that Defendants Abbott, Takeda Ltd., and TPNA direct and control TAP and are therefore responsible for its actions in conducting these activities.³ [Id., ¶¶ 7-9.] Plaintiff further alleges that Abbott, Takeda Ltd., and TAP, by agreement, jointly developed and marketed pharmaceutical products for the American and Canadian markets. [Id., ¶ 7.] Plaintiff alleges that Defendants knew or should have known of long-term health problems associated with the use of Lupron but failed to adequately inform Plaintiff or Plaintiff's physician of these risks inLupron's prescribing information, promotional documents, and applications for FDA approval.⁴ [Id., ¶¶ 15-18.]

C. Procedural History

Although the instant action was recently transferred to this Court's docket in October 2017, it has an extensive procedural history. The Court will set out the factual and procedural background of this longstanding litigation as it pertains to the current action. See Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994) (explaining that a court may take judicial notice of matters in public record, including court documents, in deciding a motion to dismiss without converting it to a motion for summary judgment).

Plaintiff (along with other plaintiffs no longer involved in the case) originally filed suit against Abbott, TPNA, Takeda Inc., and TAP in April 2010 in the Eastern District of New York. The case was then transferred to the Southern District of New York before ultimately being transferred to the Northern District of Illinois in July 2011. [See Cardenas v. Abbott Laboratories, 11-cv-4860 (N.D. Ill.) (the "First Lawsuit"), (Transfer Order), 30.]. In the order transferring the case to the Northern District of Illinois, the Southern District of New York dismissed Defendant Takeda Ltd. (named in the complaint as Takeda Inc.) as a party because it was not served with process and Plaintiffs moved that it be removed as a party defendant. [Id., at 1 n.1.]

The case proceeded in the Northern District of Illinois before Judge Gottschall. Judge Gottschall granted the Defendants' motion to dismiss Plaintiffs' complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6) and granted Plaintiffs leave to file an amendedcomplaint. [First Lawsuit (Memorandum Opinion & Order), 42]. Plaintiffs filed an amended complaint in October 2011, [see First Lawsuit, (Second Amended Complaint), 45], and the case proceeded to discovery.

In August 2013, Plaintiff's then-counsel moved to withdraw from the case. [First Lawsuit, (Motion to Withdraw), 106.] Judge Gottschall granted the motion, [see id., (Order), 107], and ordered Plaintiff to file an appearance within 30 days of the court's order or the action would be dismissed for want of prosecution. Plaintiff did not file an appearance, and the case was dismissed on October 1, 2013. [See id., (Order), 115.] Plaintiff's mother then sent the court a letter asking that Plaintiff's case be reinstated, [see id., (Letter), 119], and Plaintiff moved to vacate the dismissal on October 30, 2013. [See id., (Motion to Vacate Dismissal for Want of Prosecution), 123]. The court granted the motion over Defendants' objection, and the case was reinstated. [Id., (Order), 142.] Plaintiff then voluntarily dismissed the case on May 28, 2014. [Id., (Notice of Voluntary Dismissal), 143.] On April 24, 2015, Plaintiff, through newly-acquired counsel, moved to reopen the case. [Id., (Motion to Reopen Case), 146.] The court denied the motion sua sponte on April 30, 2015. [Id., (Order), 147.]

Plaintiff then filed a new complaint against Abbott, TPNA, Takeda Inc., and TAP in the instant action on May 11, 2015. [See 1.] This complaint brings seven causes of action against all Defendants: (1) negligence; (2)...