Terry Paulsen v. Abbott Laboratories, No. 21-2877 (7th Cir. 2022)

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Justia Opinion Summary

To treat her endometriosis, Paulsen received Lupron injections in 2004 from her physician in Georgia. Shortly afterward she began experiencing health problems, including severe bone and joint pain, memory loss, and fevers. In April 2010, Paulsen filed a personal injury suit. Paulsen voluntarily dismissed her claims in 2014. In 2015, Paulsen filed a second lawsuit asserting product liability, negligence, breach of warranty, and misrepresentation. After several amended complaints and the addition of a defendant, two claims remained: a strict liability failure-to-warn claim against AbbVie and Abbott; and a negligent misrepresentation claim against Abbott. Limited discovery was permitted.

The district court subsequently applied Illinois procedural law and Georgia substantive law, reasoning that Paulsen’s injury occurred in Georgia, and Illinois lacked a stronger relationship to the action, then granted the defendants summary judgment. The court ruled that Paulsen’s strict liability failure-to-warn claim was time-barred by Georgia’s 10-year statute of repose. Georgia does not recognize a stand-alone misrepresentation claim in product liability cases. Even if this cause of action did exist, the court reasoned, Paulsen’s misrepresentation claim would fail because “the undisputed evidence show[ed] that Abbott did not make any representations regarding Lupron.” The Seventh Circuit affirmed. The court noted extensive evidence that Paulsen’s claims accrued before April 2008 and are barred by the Illinois two-year statute of limitations for personal injuries.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 21-2877 TERRY PAULSEN, Plaintiff-Appellant, v. ABBOTT LABORATORIES and ABBVIE INC., Defendants-Appellees. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:15-cv-04144 — John F. Kness, Judge. ____________________ ARGUED MAY 24, 2022 — DECIDED JULY 8, 2022 ____________________ Before EASTERBROOK, WOOD, and BRENNAN, Circuit Judges. BRENNAN, Circuit Judge. More than 18 years ago, Terry Paulsen received two injections of a prescription medication. After experiencing more health problems, she led several personal injury lawsuits against the companies that developed and distributed the drug. Because her lawsuits were not timely led within the applicable statute of limitations, we af rm the district court’s decision granting the defendants’ motion for summary judgment. 2 No. 21-2877 I Paulsen was diagnosed with endometriosis, a gynecological condition involving tissue around the uterus. To treat her condition, she received injections of Lupron Depot 3.75 mg (“Lupron”) on February 11, 2004 and March 16, 2004 from her physician in Georgia. Shortly afterward she began experiencing health problems, including severe bone and joint pain, memory loss, and fevers. Six years later, on April 20, 2010, Paulsen led a complaint in federal court in the Eastern District of New York. The complaint named Abbott Laboratories, TAP Pharmaceutical Products, Inc., and others as defendants. Several months later that case was transferred ultimately to the Northern District of Illinois, the district in which each defendant maintained its principal place of business. Paulsen voluntarily dismissed her claims in May 2014. About a year later, she moved to reopen the case, but the district court denied her request. On May 11, 2015, Paulsen led a second lawsuit in the Northern District of Illinois, asserting various personal injury claims in connection with the 2004 Lupron injections. These claims sought relief based on theories of product liability, negligence, breach of warranty, and misrepresentation. The complaint again named Abbott and TAP Pharmaceutical Products among the defendants. A circuitous procedural history followed. After multiple motions to dismiss, several amended complaints, and the addition of AbbVie Inc. as a defendant, only two claims remained: (1) a strict liability failureto-warn claim against AbbVie and Abbott; and (2) a negligent misrepresentation claim against Abbott. No. 21-2877 3 Limited discovery was permitted about “(1) when Plainti ’s claim accrued; (2) whether the second amended complaint as to AbbVie properly relates back under [Federal Rule of Civil Procedure 15(c)]; and (3) the roles of the remaining defendants vis-à-vis the manufacturing and development of Lupron.” Following the close of discovery, the defendants moved for summary judgment. When evaluating Paulsen’s claims, the district court applied Illinois procedural law and Georgia substantive law, reasoning that Paulsen’s injury occurred in Georgia, and Illinois lacked a stronger relationship to the action, as would be required under the applicable legal standard. The district court granted the defendants summary judgment on both claims. First, the court ruled that Paulsen’s strict liability failure-to-warn claim was time-barred by Georgia’s 10-year statute of repose. 1 O.C.G.A. § 51-1-11(b)(2) (“No action shall be commenced pursuant to this subsection with respect to an injury after ten years from the date of the rst sale for use or consumption of the personal property causing or otherwise bringing about the injury.”). Second, on the negligent misrepresentation claim, the district court acknowledged that Georgia does not recognize a standalone misrepresentation claim in product liability cases. Brazil v. Janssen Rsch. & Dev. LLC, 249 F. Supp. 3d 1321, 1340 (N.D. Ga. 2016) (citation omitted) (stating that under Georgia law, there are “no misrepresentation claims for products 1 Statutes of repose are considered substantive law. Freeman v. Williamson, 890 N.E.2d 1127, 1133 (Ill. App. Ct. 2008) (“A statute of repose differs from a statute of limitations in that it is substantive rather than procedural.” (citing Ferguson v. McKenzie, 780 N.E.2d 660, 664 (Ill. 2001))); Selby v. O’Dea, 156 N.E.3d 1212, 1232–33 (Ill. App. Ct. 2020). 4 No. 21-2877 liability distinct from failure to warn claims”). Even if this cause of action did exist, the court reasoned, Paulsen’s misrepresentation claim would fail on the merits because “the undisputed evidence show[ed] that Abbott did not make any representations regarding Lupron, let alone any false representations, to [Paulsen] or her prescribing physician.” The court declined to address the defendants’ arguments regarding the Illinois statute of limitations, because the other reasons were su cient. Paulsen now appeals the rulings as to both claims. II We review de novo a district court’s decision on summary judgment. Johnson v. Rimmer, 936 F.3d 695, 705 (7th Cir. 2019). The defendants ask us to a rm the district court’s decisions, in part because Paulsen’s claims are barred by the applicable Illinois statute of limitations. We may a rm on any ground supported by the record. Skyrise Constr. Grp., LLC v. Annex Constr., LLC, 956 F.3d 950, 956 (7th Cir. 2020) (citation omitted). Although the district court did not address this issue, it was argued in that court and briefed on appeal, so we begin our review there. When a federal court sits in diversity, as we do here, it looks “‘to the choice-of-law rules of the forum state to determine which state’s law applies’ to the issues before it.” Sosa v. Onfido, Inc., 8 F.4th 631, 637 (7th Cir. 2021) (quoting Heiman v. Bimbo Foods Bakeries Distrib. Co., 902 F.3d 715, 718 (7th Cir. 2018)). Under Illinois choice-of-law rules, the forum state’s law applies “unless an actual con ict with another state’s law is shown, or the parties agree that forum law does not apply.” Gunn v. Cont’l Cas. Co., 968 F.3d 802, 808 (7th Cir. 2020) (citations omitted); see Bridgeview Health Care Ctr., Ltd. v. State Farm No. 21-2877 5 Fire & Cas. Co., 10 N.E.3d 902, 905 (Ill. 2014) (“A choice-of-law determination ‘is required only when a di erence in law will make a di erence in the outcome.’” (citations omitted)). As for procedural matters, though, “the law of the forum controls[.]” NewSpin Sports, LLC v. Arrow Elecs., Inc., 910 F.3d 293, 300 (7th Cir. 2018) (quoting Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 770 N.E.2d 177, 194 (Ill. 2002)). Under Illinois law, “[s]tatutes of limitations are procedural, merely xing the time in which the remedy for a wrong may be sought, and do not alter substantive rights.” Id. (alteration in original) (quoting Belleville Toyota, Inc., 770 N.E.2d at 194). We therefore apply the appropriate Illinois statute of limitations when evaluating Paulsen’s suit. Illinois has a twoyear statute of limitations for personal injury claims—“Actions for damages for an injury to the person … shall be commenced within 2 years next after the cause of action accrued.” 735 ILCS 5/13-202. “As a general rule, a cause of action for personal injury accrues at the time [a] plainti su ers injury.” Wilson v. Devonshire Realty of Danville, 718 N.E.2d 700, 704 (Ill. App. Ct. 1999) (citation omitted); see Healy v. Owens-Illinois, Inc., 833 N.E.2d 906, 910 (Ill. App. Ct. 2005). When “an injury is not caused by a single traumatic event but rather occurs more gradually, courts apply the discovery rule.” Healy, 833 N.E.2d at 910 (citations omitted). Under that common-law rule, “the limitations period begins to run when the party seeking relief both (1) knows or reasonably should know of his injury and (2) knows or reasonably should know that it was wrongfully caused.” Doe v. Hastert, 133 N.E.3d 1249, 1255 (Ill. App. Ct. 2019) (citing Parks v. Kownacki, 737 N.E.2d 287, 294 (Ill. 2000)). Importantly, “[t]he limitations period begins running even if 6 No. 21-2877 the plainti does not know that the misconduct was actionable.” Id. at 1255–56 (citing Parks, 737 N.E.2d at 294). Although the discovery rule “does not mandate that a plainti know with precision the legal injury that has been su ered,” it anticipates that she will possess “su cient information to cause [her] to inquire further in order to determine whether a legal wrong has occurred.” Healy, 833 N.E.2d at 910 (citations omitted). Paulsen rst led a complaint related to her alleged negative side e ects on April 20, 2010. So, under the Illinois twoyear statute of limitations for personal injuries, Paulsen’s claims are barred unless they accrued on or after April 20, 2008. But a variety of personal, legal, and medical documents reveal that Paulsen knew, or should have known, of the alleged injury and its cause several years earlier. As examples, Paulsen wrote letters to her doctors throughout 2007 and early 2008, which included statements such as: • “I am so sick, we know it’s from the Lupron.” • “I wish to thank you for now seeing that I really do su er some of the long[-]term effects of Lupron.” • “I want to [thank you] for listening to me and helping me with this awful illness from which we believe is from the Lupron in 2004.” In a 2005 letter to her doctor, Paulsen stated that “Lupron had terrible side e ects,” which included “severe bone and joint pain.” “The e ects of the Lupron were long lasting,” Paulsen wrote, causing her to seek medical treatment as a result. She No. 21-2877 7 made similar claims in a letter she sent to TAP Pharmaceutical Products in 2007. Paulsen’s medical records also show that as early as 2004, she believed Lupron caused her negative side e ects: • An April 22, 2004 message Paulsen left for her doctor, stated that she was “having pain after [L]upron injection. Mainly knees & feet.” • An April 4, 2005 medical-center admission form stated that Paulsen was “[p]laced on Lupron a [year] ago. [Patient] [s]tates ‘a side e ect of this med[ication] is bone pain & my back has been hurting ever since I started this.’” • An October 31, 2005 doctor’s note stated that Paulsen wanted “to discuss some concerns that she ha[d] related to her use of Lupron.” Her prior symptoms included “extreme joint pain, particularly in her lower extremities as well as vasomotor symptoms and [a] feeling [of non-wellbeing].” Similarly, medical forms completed by Paulsen attributed her side e ects to Lupron as early as November 2006. Other evidence con rms that Paulsen’s claims accrued before April 2008. For example, in November 2006, Paulsen’s cousin signed an online petition on her behalf. It stated that Paulsen had “su ered severe bone pain, confusion and memory problems” after receiving the Lupron injections. The post also suggested that the petitioners “ban[d] together and start a class action suit.” Around March 2007, Paulsen’s 8 No. 21-2877 mother lled out an adverse-event form for the Food and Drug Administration on her behalf, writing that “[a]fter 1 shot of Lupron,” Paulsen “was unable to get out of bed in the morning” and su ered from “sever[e] bone pain, swelling,” and “memory loss.” That same year, both Paulsen and her doctor noted Paulsen’s beliefs about the adverse e ects of Lupron in Social Security records related to her disability claim. And more recently, Paulsen admitted in her 2019 deposition that one of the reasons she contacted a doctor prior to April 2008 was that doctor’s familiarity with Lupron. This evidence demonstrates that Paulsen’s claims accrued long before she led her rst lawsuit in April 2010. As early as 2004, Paulsen knew she had su ered an injury and believed Lupron to be the cause. For years, she pursued medical treatment for these symptoms, while always attributing their cause to Lupron. By the time Paulsen led her rst lawsuit, four to six years had passed since her claims had accrued. That time period exceeds Illinois’s two-year statute of limitations, even under the most lenient application of the commonlaw discovery rule. Hastert, 133 N.E.3d at 1255 (citing Parks, 737 N.E.2d at 294). Paulsen’s claims are therefore time-barred. Because Paulsen’s claims are barred by the Illinois twoyear statute of limitations for personal injuries, we need not consider the other issues the parties raise. We AFFIRM the district court’s judgment.
Primary Holding
Seventh Circuit rejects, as time-barred, personal injury claims based on Lupron injections that occurred in 2004.

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