Gazal v. Boehringer Ingelheim Phar-Maceuticals, Inc.
2011 U.S. App. LEXIS 15557
8th Cir.2011Background
- Gazal filed tort and warranty claims against Boehringer Ingelheim, Pfizer, Pharmacia, and Pharmacia & Upjohn in Texas, which were removed and later transferred to Minnesota MDL.
- Gazal, diagnosed with Parkinson's, was treated with Mirapex at Baylor College of Medicine; Mirapex allegedly caused compulsive gambling and other side effects.
- By 2005 Gazal disclosed gambling problems to doctors, was hospitalized in 2005 while attempting to stop Mirapex, and by 2006 asked casinos to refuse his business due to side effects.
- The Dominion Study (June 2008) linked Mirapex to gambling disorders, which Gazal cited in opposition to tolling and accrual theories.
- The district court held Gazal's claims accrued by 2005 and were time-barred, and dismissed the warranty claim for failure to provide notice; Gazal appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Accrual timing under Texas law | Gazal contends accrual did not occur until Dominion 2008 study; tolling possible. | Claims accrued in 2005 when acts occurred and injuries manifested. | Accrual occurred by 2005; time-barred. |
| Continuing tort tolling applicability | Continuing tort tolling could extend limitations. | No tolling since Gazal knew of injury and causation by 2005. | Continuing tort tolling does not apply. |
| Open Courts provision tolling | Open courts tolls should preserve access to courts for undiscovered injuries. | Open courts tolling protects only for undiscovered injuries; Gazal knew of injury. | Open courts provision does not save the claim. |
| Ripeness (and mental stability tolling) | Claims might ripen later or be tolled due to mental incapacity. | Ripeness satisfied by 2006; no mental incapacity tolling shown. | Ripeness established; no tolling for mental incapacity. |
| Warranty notice requirement for subpurchasers | Notice requirement should apply to Gazal as subpurchaser. | Subpurchasers must provide notice; otherwise claim is improper. | Summary judgment upheld; notice requirement satisfied. |
Key Cases Cited
- Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) (causation evidence weight in Havner; not about accrual notice)
- Childs v. Haussecker, 974 S.W.2d 31 (Tex.1998) (latency and discovery; not requiring specific epidemiological proof for accrual)
- Upjohn Co. v. Freeman, 885 S.W.2d 538 (Tex.App.1994) (continuing tort doctrine limited to unknown causation effects)
- Nelson v. Krusen, 678 S.W.2d 918 (Tex.1984) (open courts tolling concerns; remedy through due course of law)
- Ruiz v. Conoco, Inc., 868 S.W.2d 752 (Tex.1993) (mental incapacity tolling considerations)
- Chavez v. Davila, 143 S.W.3d 151 (Tex.App.2004) (evidence required to show lack of mental capacity for tolling)
- Allgood v. R.J. Reynolds Tobacco Co., 80 F.3d 168 (5th Cir.1996) (limits on continuing tort? (cited in Tolling discussion))