(PS) Viramontes v. Pfizer Inc.
2:15-cv-01754
E.D. Cal.Dec 23, 2015Background
- Sharon Viramontes previously sued Pfizer in 2005 for injuries she attributed to taking Celebrex; that action was dismissed on causation grounds and affirmed on appeal.
- Plaintiffs (Sharon and her husband Edward) filed the present diversity suit in state court on July 17, 2015 alleging negligence, strict products liability, and loss of consortium based on Sharon’s later-diagnosed dermatomyositis.
- Dr. Ira Fishman authored a November 21, 2012 consultation report (served on Sharon on that date) concluding with reasonable medical probability that Sharon’s dermatomyositis was linked to chronic use of Celebrex; plaintiffs concede they were served with that report before July 17, 2013.
- Plaintiffs rely on a July 18, 2013 Fishman report as the date they first learned of the Celebrex–dermatomyositis link; the court took judicial notice of both Fishman reports but not of an uncertified LexisNexis report.
- Defendant moved to dismiss under Rule 12(b)(6) asserting the claims are time-barred and/or precluded; the magistrate judge found the 2012 report put plaintiffs on inquiry notice and recommended dismissal of negligence and strict liability claims with prejudice and dismissal of the loss of consortium claim without prejudice but with leave to amend limited to allegations that the spousal loss began on or after July 18, 2013.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether negligence and strict products liability claims are time‑barred | Limitations began on July 18, 2013 (date of QME report); suit timely filed in 2015 | Plaintiffs had reason to suspect by Nov 21, 2012 (earlier Fishman report served then); claims untimely | Dismissed with prejudice — 2012 report put plaintiffs on inquiry notice so limitations expired two years later |
| Whether loss of consortium is barred by statute of limitations | Alleged loss arose from defendants’ conduct but may have accrued after July 18, 2013 | Loss accrued when spouse’s injury was discovered (by Nov 21, 2012), so untimely | Dismissed without prejudice; plaintiff husband granted 30 days to amend if he can truthfully plead loss began on/after July 18, 2013 |
| Whether collateral estoppel/res judicata preclude claims | Plaintiffs argue dermatomyositis is a distinct later-discovered disease and thus not precluded by the 2005 case | Defendant argues prior suit and rulings preclude or estop current claims | Court did not decide preclusion; relied on statute of limitations to dispose of primary claims |
| Whether court may consider judicially noticed materials on 12(b)(6) motion | Plaintiffs object to using earlier reports and state-court records to establish notice | Defendant urges judicial notice of prior pleadings, orders, and Fishman reports to show notice and prior adjudication | Court granted judicial notice of the state-court records and both Fishman reports (but denied notice for uncertified LexisNexis report) and considered them on the motion |
Key Cases Cited
- Norgart v. Upjohn Co., 21 Cal.4th 383 (1999) (discovery/delayed‑discovery rule for accrual of latent‑injury claims)
- Fox v. Ethicon Endo‑Surgery, Inc., 35 Cal.4th 797 (2005) (explaining accrual under discovery rule: reason to suspect injury and wrongful cause)
- Pooshs v. Philip Morris USA, Inc., 51 Cal.4th 788 (2011) (later‑discovered distinct disease may trigger a new limitations period)
- Grisham v. Philip Morris U.S.A., Inc., 40 Cal.4th 623 (2007) (what constitutes "reason to suspect" under discovery rule)
- Jolly v. Eli Lilly & Co., 44 Cal.3d 1103 (1988) (statute runs when plaintiff suspects or should suspect injury caused by wrongdoing)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading must state plausible claim to relief)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (legal conclusions not entitled to assumption of truth)
- ASARCO, LLC v. Union Pacific R. Co., 765 F.3d 999 (9th Cir. 2014) (dismissal on affirmative defenses at 12(b)(6) proper only where defense is obvious on face of complaint)