Tavilla et al v. Cephalon Incorporated et al, No. 2:2011cv00270 - Document 101 (D. Ariz. 2012)

Court Description: ORDER granting in part and denying in part 96 Motion for Reconsideration. Signed by Judge David G Campbell on 5/30/2012.(NVO)
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Tavilla et al v. Cephalon Incorporated et al Doc. 101 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Nicolai Tavilla, et al., Plaintiffs, 10 11 ORDER v. 12 No. CV11-0270 PHX DGC Cephalon Incorporated, a Delaware corporation, 13 Defendant. 14 15 Plaintiffs filed a motion for reconsideration of the Court’s May 3, 2012 order 16 (Doc. 94) granting in part and denying in part Defendant’s motion for summary 17 judgment. Doc. 96. Defendant has filed a response. Doc. 99. For the reasons that 18 follow, the Court will grant the motion in part and deny it in part. 19 I. 20 Legal Standard. Motions for reconsideration are disfavored and should be granted only in rare 21 circumstances. 22 3348522, at *1 (D. Ariz. Oct. 15, 2009). A motion for reconsideration will be denied 23 Aabsent a showing of manifest error or a showing of new facts or legal authority that 24 could not have been brought to [the Court=s] attention earlier with reasonable diligence.@ 25 LRCiv 7.2(g)(1); see Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). Mere 26 disagreement with an order is an insufficient basis for reconsideration. See Ross v. 27 Arpaio, No. CV 05-4177-PHX-MHM, 2008 WL 1776502, at *2 (D. Ariz. 2008). Nor 28 should reconsideration be used to ask the Court to rethink its analysis. Id.; see N.W. See Stetter v. Blackpool, No. CV 09-1071-PHX-DGC, 2009 WL Dockets.Justia.com 1 Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 1988). 2 II. Britny Tavilla’s Claim. 3 The Court found that Arizona’s two year statute of limitations barred Plaintiffs’ 4 tort claims absent equitable tolling because their causes of action accrued more than two 5 years before they filed their complaint on September 15, 2010. Doc. 94 at 4-8. The 6 Court granted summary judgment as to Donna Tavilla and the Tavilla’s adult daughter 7 Britny, but denied summary judgment as to the Tavilla’s minor children because the 8 statute of limitations does not accrue under Arizona law until a child turns 18. Id. at 8. 9 Plaintiffs’ argue that the Court erred in granting summary judgment as to Briny 10 Tavilla because Defendants had not moved for summary judgment against her and 11 because the statute of limitations did not begin to accrue until she reached her 18th 12 birthday on September 5, 2009. Doc. 96 at 2. 13 Defendant moved for summary judgment “on Plaintiffs’ claims” on statute of 14 limitations grounds (Doc. 75 at 1), but neither party addressed tolling issues with respect 15 to Britny. Plaintiffs have now cited evidence that Britny was born September 5, 1991, 16 demonstrating that she would have turned 18 on September 5, 2009, less than two years 17 before the filing of this lawsuit. Doc. 96 at 2; see Doc. 80-7 at 38, ¶ 1. Defendant does 18 not oppose reconsideration on this ground. The Court accordingly will grant Plaintiffs’ 19 motion and deny summary judgment as to Britny Tavilla. 20 III. Donna Tavilla’s claim. 21 The undisputed facts showed that Donna Tavilla was aware of Mr. Tavilla’s 22 addiction to and injuries from Actiq by April of 2007. The Court accordingly held that 23 “the cause of action . . . accrued and the statute of limitations began to run more than two 24 years before Plaintiffs filed suit on September 15, 2010.” Doc. 94 at 7. Plaintiffs argue 25 that this was “manifest error” because, under Lawhon v. L.B.J. Institutional Supply, Inc., 26 756 P.2d 1003, 1007 (Ariz. Ct. App. 1988), the correct question is when Mrs. Tavilla 27 knew “the product ha[d] a causal relation to [her] injury.” Doc. 96 at 3, 5. The Court 28 cited to numerous undisputed facts showing that Mrs. Tavilla knew of her husband’s 2 1 dental injuries and knew or had reason to believe that Actiq was the cause of these 2 injuries. See Doc. 94 at 5-8. The Court found this sufficient for her cause of action to 3 accrue, and Lawhon does not change the Court’s analysis. 4 The question Lawhon addressed was whether a plaintiff who timely filed suit 5 based on product-related injuries, but failed to identify the product manufacturer and 6 product distributer prior to the running of the statute of limitations, either knew or could 7 have discovered this information earlier through reasonable diligence. 756 P.2d at 1004- 8 1007. That is not the question here. Plaintiffs do not dispute that Mrs. Tavilla knew that 9 Actiq caused her husband’s injuries, nor do they claim that she did not know or could not 10 have discovered with reasonable diligence that Cephalon was the manufacture of Actiq. 11 Rather, they argue that Mrs. Tavilla did not know that as a non-cancer patient her 12 husband should not have been taking Actiq, and that there is no evidence she knew of her 13 husband’s conversations with Cephalon about his injuries or that 36 other customers had 14 made similar complaints. Doc. 96 at 3, 5-6. But none of these facts are necessary for 15 Mrs. Tavilla to have known “both the what and who elements of causation” (Lawhon, 756 16 P.2d at 1007) – that her husband had suffered injuries as a result of taking Actiq. Under 17 Lawhon, as under the other Arizona cases cited in the Court’s order, Mrs. Tavilla’s claim 18 is time-barred. 19 To the extent that Plaintiffs argue that the Court erred because Defendants should 20 nonetheless have been estopped from asserting the statute of limitations defense due to 21 fraud (Doc. 96 at 3), this argument is also unavailing. Plaintiffs never asserted that 22 Cephalon defrauded Mrs. Tavilla, and Plaintiffs argued in their response and repeated 23 again in their motion for reconsideration that Mrs. Tavilla was not even aware of the 24 conversations her husband had with Cephalon in which the alleged fraud took place. 25 Moreover, the Court found that the fraud claims upon which Plaintiffs’ estoppel 26 arguments were based lacked merit. Doc. 94 at 24. 27 IV. 28 Consumer Fraud Act. Plaintiffs sought leave to amend their complaint to add causes of action for fraud 3 1 and consumer fraud related to conversations Mr. Tavilla had with various Cephalon 2 representatives. Doc. 85. The Court determined that Plaintiffs had failed to allege facts 3 plausibly showing misrepresentation, concealment, or failure to disclose and that this 4 failure was fatal to both their common law fraud and Consumer Fraud Act (“CFA”) 5 claims. Doc. 94 at 24. Plaintiffs argue that new authority undercuts the Court’s CFA 6 ruling. Doc. 96 at 7. 7 In addressing Plaintiffs’ CFA claim, the Court cited Horne v. Autozone Inc., 258 8 P.3d 289, 299 (Ariz. Ct. App. 2011), as “finding that a CFA claim, like a common law 9 fraud claim, can be based on omission only ‘when the law imposes a duty to disclose.’” 10 Doc. 94 at 24. Plaintiffs cite the Arizona Supreme Court’s recent opinion in Horne v. 11 Autozone, Inc., No. CV-11-0291-PR, 2012 WL 1673071 (Ariz. May 15, 2012), as finding 12 that the CFA itself imposes this duty. Doc. 96 at 7. 13 Autozone considered whether failure to perform a duty under the Arizona Pricing 14 Act constitutes an “act” or an “omission” under the CFA. 2012 WL 1673071 at *3. This 15 was relevant because an omission claim under the CFA requires proof of a material fact 16 and proof that the speaker intended the hearer to rely on omission of that fact in 17 connection with the sale or advertisement of merchandise. Id.; see A.R.S. § 44–1522(A). 18 The Court of Appeals found that a failure to disclose where there is a separate statutory 19 duty to disclose – in Autozone, the duty in the Arizona Pricing Act – renders the failure to 20 disclose an affirmative “act” under the CFA. 258 P.3d 289, 299 (Ariz. Ct. App. 2011). 21 As an “act,” the failure to disclose did not require proof of materiality or intent that the 22 hearer rely on the omission. Id. 23 The Arizona Supreme Court disagreed, holding that failure to comply with a 24 separate statutory duty does not automatically transform a failure to disclose from an 25 “omission” to an “act” under the CFA. 2012 WL 1673071 at *3. The Supreme Court 26 noted that an omission does not always constitute an act, and found no evidence that the 27 Arizona legislature intended to blur the common law distinction between acts and 28 omissions when it passed the CFA. Id. It went on to state that “[r]ather, the CFA itself 4 1 imposes the actionable duty – to refrain from a ‘deceptive act or practice’ or an ‘omission 2 of any material fact with intent that others rely’ thereon.” Id. Plaintiffs cite this sentence 3 to argue that the CFA imposes a duty to disclose. 4 The Arizona Supreme Court did not address the question of whether an omission 5 under the CFA requires a duty to disclose. Although the language relied on by Plaintiffs 6 could be read out-of-context to have that meaning, the Court cannot conclude that the 7 Arizona Supreme Court so intended. Among other things, as already noted, the Supreme 8 Court acknowledged the difference in the law between acts and omissions and stated that 9 the CFA was not intended to blur that distinction. As noted in the Court’s previous order, 10 the Restatement (Second) of Torts reflects this distinction and states that an omission will 11 give rise to liability when a duty to disclose exists. Compare Restatement § 525 with 12 § 551. With the distinction between acts and omissions still in existence under the CFA, 13 the Court cannot conclude that the Supreme Court’s opinion in Autozone has the meaning 14 Plaintiffs contend. 15 The Court has re-read the Court of Appeals’ Autozone decision in light of the 16 motion to reconsider and the Supreme Court’s recent opinion, and has concluded that this 17 issue was not squarely addressed by the Court of Appeals either. The Court thus erred in 18 concluding that the Court of Appeals’ Autozone decision stood for the proposition that an 19 omission is actionable under the CFA only when a duty to disclose exists. Doc. 94 at 24. 20 The Court of Appeals, like the Supreme Court, did not address that question. As noted 21 above, however, the Supreme Court did hold that the CFA does not blur the distinction 22 between acts and omissions, and the Court cannot conclude that the common law 23 distinction – which generally requires a duty to disclose before an omission becomes 24 actionable – does not apply under the CFA. 25 Moreover, even if a duty to disclose is not required for an omission claim under 26 the CFA, the Court found other reasons to deny the motion to add a CFA claim to this 27 case. The Court found that Plaintiffs had failed plausibly to allege omission of material 28 facts, particularly when Mr. Tavilla made complaints to Cephalon representatives clearly 5 1 showing that he knew that Actiq caused his injuries, and particularly when Cephalon told 2 him how to make a claim. Doc. 94 at 21-23. The Court articulated these reasons in its 3 analysis of the common law fraud claim (id.), but applied them as well to the CFA claim 4 (id. at 24). The Arizona Supreme Court’s Autozone decision – the only basis upon which 5 Plaintiffs seek reconsideration – has no effect on this independent basis for denying leave 6 to add the CFA claim. 7 IT IS ORDERED 8 1. Plaintiffs’ motion for reconsideration (Doc. 96) is granted in part and denied in part. 9 10 2. Plaintiff Britny Tavilla’s loss of consortium claim is reinstated. 11 Dated this 30th day of May, 2012. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6