NONPRECEDENTIAL DISPOSITION

To cited accordance Fed. R. P. 32.1 United States Court of Appeals

For Seventh Circuit Chicago, Submitted December ^[*] Decided January Before

DIANE P. WOOD, Chief Judge JOEL M. FLAUM, Circuit Judge DIANE S. SYKES, Circuit Judge No. ‐

TOM TUDUJ, Appeal United States District

Plaintiff ‐ Appellant Court Southern District Illinois. v . 3:15 cv ‐ ‐ RJD

SANOFI AVENTIS U.S. LLC, et al., Reona J. Daly,

Defendants Appellees . Magistrate Judge .

O R D E R

Tom Tuduj, inmate, sued three pharmaceutical manufacturers contending suffer murder boss. occurred nine before complaint, so district court dismissed untimely. asserts number reasons sue, none has merit affirm.

‐ “We construe complaint in light most favorable to plaintiff[], accepting as true all well ‐ [pleaded] alleged, taking judicial of matters within public record, and drawing all inferences in plaintiff[’s] favor.” Adkins VIM Recycling, therefore reviewed both complaint and Appellate Court’s decision upholding his conviction for first ‐ degree murder, People Tuduj

In early Tuduj began seeing a doctor “stress related symptoms.” He received prescriptions Wellbutrin XL (for depression), Ambien CR (for insomnia), and generic propranolol (for high blood pressure). Tuduj began taking these drugs May 2006. From May May he began to lose his “grasp reality”; “to hear voices, see and hear things [were] there”; and “[become] uncharacteristically angry,” more depressed, and suicidal. He had nightmares about boss killing people. By May he was in a “hypnotic trance.” day he stabbed boss death.

Tuduj charged with first degree murder, and was admitted psychiatric ward of Cook County jail, where he diagnosed psychotic. He medication a month after murder, and all side effects promptly ceased. Tuduj eventually convicted of murder after a bench trial and in April sentenced years in prison. His conviction affirmed in 2014. Id. 42. nine years after murder, Tuduj this tort against Sanofi ‐

Aventis, manufacturer Ambien CR; GlaxoSmithKline, manufacturer Wellbutrin XL; and Wyeth Pharmaceuticals, which manufactures propranolol. He alleged companies (or should known) failed warn consumers their homicidal violence, and sleepwalking. also alleged companies conspired conceal dangerous side effects and conspiracy led May

Because long passed since attempted plead around likely statutes limitations defense invoking two doctrines. First, sought benefit discovery rule, which tolls statute until plaintiff knows should know its cause. alleged discovered manufacturers acknowledged problems Ambien CR Wellbutrin XL. Second, invoked “fraudulent concealment,” which tolls statute five after discovers fraud concealed claim. alleged learned defendant companies issued fraudulent press releases safe effective. 1941 3

The moved to dismiss based on untimeliness, issue preclusion, and failure to state a claim. The district court—acting through a magistrate judge the parties’ consent, see U.S.C. § 636(c)(1)—ruled the limitations clock began run on date Tuduj’s violent crime: May 16, 2006. The judge noted longest possible limitations period five for fraud claims, I LL C OMP . S TAT . 5/13 ‐ 205, and period elapsed May 2011. The judge rejected Tuduj’s theories for tolling time sue. maintains limitations period begin running least He also argues magistrate judge should dismissed case a bar is an affirmative defense more appropriate for summary judgment. address latter point first. correct judge dismissed for lack evidence support Tuduj’s accrual theories. But judge assumed truth Tuduj’s factual assertions ruled those assertions legally insufficient tolling. No amount discovery could change result. As long judge assumed truth allegations, “complaint nonetheless set[] out all elements affirmative defense, dismissal under Rule 12(b)(6) appropriate.” Indep. Tr. Corp. v. Stewart Info. Servs. Corp. , F.3d 930, (7th Cir. Accordingly, no procedural error occurred.

Tuduj’s arguments require first review Illinois’s discovery rule. For injuries are readily discoverable, period begins “when victim (1) discovers [the] injury knows it wrongfully (2) has ‘sufficient information concerning [the] injury its put a person inquiry determine whether actionable conduct involved.’” Aebischer v. Stryker Corp. F.3d (7th Cir. (quoting Daubach v. Honda Motor Co ., 1999)). rule applies latent injuries; presumes “sudden, traumatic event” puts immediate notice potential claims. Hollander Brown 2006); Golla Gen. Motors Corp. Because injury sudden psychotic breakdown culminating violent latent, discovery rule does apply. even under discovery rule, untimely. The June put him inquire possible lawsuit. knew then within week taking defendants’ May, experienced bizarre

symptoms, including dreams, suicidal led kill. next month when medications, symptoms ceased. This is enough “spark inquiry in reasonable person” about whether the drugs might have caused his breakdown whether the companies that made them had done something “legally actionable.” Mitsias I Flow Corp. , N.E.2d 94,

Tuduj replies that although he his injury, he did not know until that the defendants had wrongfully caused it. That the year when, he says, he learned the defendants had disclosed the unsafe side effects that caused his breakdown. facts sufficient prompt an inquiry the wrongful cause an need statements by defendant. See id. Any suggesting “some possible fault part defendant” are enough. Id. at And person in position have known in drugs possibly at fault when use produced violent, psychotic ended when drug use ended. Indeed, during his trial testimony 2009, Tuduj asserted this very point—that combination drugs he ingested caused his murderous, breakdown. See Tuduj at 20–21. Thus at least by time his trial, Tuduj had reason believe defendants’ drugs may have wrongfully caused behavior. Even calculate periods expired by 2014, year before Tuduj suit.

Tuduj responds he cannot known drugs caused him boss when he convicted conviction reflects finding he, drug, responsible killing. It later that, says, learned enough about know they kill. argument does help Tuduj. First, conviction conclusively establishes cause breakdown, then it provides alternate basis dismissal argued defendants—issue preclusion. may relitigate civil any issue—such violent act—that decided trial. See In re Emerald Casino, (explaining issue preclusion). any case, misunderstands meaning inquiry notice. Both before after convicted, reason believe defendants’ possibly produced side effects. That inquiry started clock.

Switching approaches, next invokes Illinois’s “continuing violations” another effort delay accrual claims. See Feltmeier Feltmeier argues committed “continuing violations” year learned they publicly disclosed drugs’ side effects. But continuing violation doctrine applies Tuduj’s injury continued beyond See id Tuduj’s complete once ended drugs. continuing violation doctrine inapplicable. last based on allegations fraudulent concealment, but misuses too. contends by failing warn consumers might homicidal by affirmatively asserting they were safe, defendants fraudulently concealed information needed sue. statute may be tolled on basis fraudulent concealment relies on statements defendant “are calculated lull induce claimant delaying filing claim or prevent claimant discovering claim.” Wisniewski v. Diocese Belleville App. Ct. (quotation marks omitted). But waiting sue, did rely assurances were harmless. Based sworn testimony did think harmless but fact believed they breakdown. See Gredell Wyeth Labs., 548–49

One final observation. lawsuit may impermissible attempt invalidate conviction. See Heck Humphrey U.S. (1994) (federal courts do permit collateral attacks convictions “through vehicle civil suit”) (quotation marks omitted). raise Heck defense, do address it. raises additional arguments, none warrant further discussion.

AFFIRMED.

[*] agreed decide without oral argument briefs record adequately present legal arguments, oral significantly aid court. F ED R. A PP . P. 34(a)(2)(C).