Gazal v. Boehringer Ingelheim Pharmaceuticals, et al., No. 10-3129 (8th Cir. 2011)Annotate this Case
Wife, suing on behalf of her deceased husband, (plaintiff) filed tort claims and a breach of warranty claim against pharmaceutical companies, alleging that the prescription Mirapex that husband used to treat his Parkinson's disease lead him to compulsively gamble. At issue was whether the district court properly granted summary judgment to defendants because plaintiff's claims were time-barred. The court held that the district court correctly determined that plaintiff's claim accrued more than two years before he brought his suit and thus was time-barred. The court also held that because husband became aware of the effect of the Mirapex more than two years before he filed suit, the continuing tort doctrine did not save his claim; that the open courts provision did not operate to save plaintiff's claim; that the district court did not err in determining that the facts were sufficiently developed to establish a concrete injury in 2006 for the purpose of determining ripeness; that the affidavits at issue did not raise a genuine issue of fact as to whether husband's behavioral problems and side effects were so severe as to render him legally incompetent and therefore, the tolling provisions of section 16.0001 of the Texas Civil Practice and Remedies Code were unavailable; and that plaintiff had not satisfied the requirement that purchasers gave notice of a breach of warranty claim prior to filing suit and therefore, the district court did not err in granting summary judgment to defendant on that claim. Accordingly, the judgment was affirmed.