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Foster v. AstraZeneca Pharmaceuticals, LP

United States District Court, W.D. Missouri, Western Division

March 22, 2017

RICHARD E. FOSTER, Plaintiff,
v.
ASTRAZENECA PHARMACEUTICALS, LP, et al., Defendants.

          ORDER AND OPINION DENYING DEFENDANT ASTRAZENECA PHARMACEUTICALS LP'S AND ASTRAZENECA LP'S MOTION TO DISMISS

          ORTRIE D. SMITH, SENIOR JUDGE

         Pending is Defendants AstraZeneca Pharmaceuticals LP's and AstraZeneca LP's Motion to Dismiss.[1] Doc. #25. Plaintiff alleges he suffers from Chronic Kidney Disease (“CKD”) as a result of Defendants' unlawful conduct in designing, researching, developing, testing, manufacturing, packaging, labeling, marketing, promoting, distributing, and/or selling Protonix, Nexium, Prilosec, and Prilosec OTC. Doc. #23. Collectively, these medications are proton pump inhibitors (“PPI”) used to treat gastroesophageal reflux disease and other similar gastric disorders. Id. Plaintiff asserts claims for negligence, strict products liability, breaches of express and implied warranty, fraudulent misrepresentation and omission, and violation of the Missouri Merchandising Practices Act. Id. Defendants move to dismiss under Federal Rules of Civil Procedure 12(b)(6), 8(a)(2), and 9(b), and argue Plaintiff's claims are barred by the statute of limitations. Doc. #25. For the reasons below, the Court denies the motion to dismiss.

         I. STANDARD

         The liberal pleading standard created by the Federal Rules of Civil Procedure requires “a short and plain statement of the claim showing that the pleader is entitled to relief.”0 Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Fed.R.Civ.P. 8(a)(2)). “Specific facts are not necessary; the statement need only >give the defendant fair notice of what the…claim is and the grounds upon which it rests.'” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In ruling on a motion to dismiss, the Court Amust accept as true all of the complaint's factual allegations and view them in the light most favorable to the Plaintiff[ ].” Stodghill v. Wellston Sch. Dist., 512 F.3d 472, 476 (8th Cir. 2008).

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Id. at 679. A claim is facially plausible if it allows the reasonable inference that the defendant is liable for the conduct alleged. See Horras v. Am. Capital Strategies, Ltd., 729 F.3d 798, 801 (8th Cir. 2013); Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009).

         For a fraud claim, a heightened pleading standard applies, requiring the plaintiff to “state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.” Fed.R.Civ.P. 9(b). This is understood to require the plaintiff plead the “who, what, when, where, and how” of the fraud. Freitas v. Wells Fargo Home Mortg., Inc., 703 F.3d 436, 439 (8th Cir. 2013). Rule 9 is satisfied with respect to a claim of fraudulent omission if the omitted information is identified and “how or when” the concealment occurred. Cf. Great Plains Trust Co. v. Union Pac. R.R. Co., 492 F.3d 986, 996 (8th Cir. 2007).

         II. DISCUSSION

         A. Statute of Limitations

         Defendants contend Plaintiff's claims are barred by Missouri's five-year statute of limitations for injuries to the person. Mo. Rev. Stat. § 516.120. Plaintiff “ingested Protonix, Nexium, Prilosec, and Prilosec OTC from approximately January 2007 to 2013, which resulted in injuries to his kidneys including [CKD] in May of 2008.” Doc. #23, ¶ 4. Defendants argue Plaintiff's claims are untimely because his suit was not filed until October 2016. Plaintiff invokes the “delayed discovery rule” under which his cause of action accrues not at the time of injury, but when the act giving rise to the injury becomes reasonably ascertainable. Additionally, Plaintiff alleges Defendants fraudulently concealed risks posed by PPIs, and therefore, Plaintiff was unable to discover the cause of his injuries.

         A motion to dismiss on statute of limitations grounds should not be granted unless the complaint establishes on its face and without exception the claim is barred. Patel v. Pate, 128 S.W.3d 873, 877 (Mo. App. Ct. 2004). Under Missouri law, a cause of action accrues when “the damage resulting therefrom is sustained and is capable of ascertainment.” Mo. Rev. Stat. § 516.100. The statute of limitations does not begin to run at the time an injury is discovered if it was impossible to ascertain the likely cause of the injury. King v. Nashua Corp., 763 F.2d 332, 333 (8th Cir. 1985) (citing Renfroe v. Eli Lilly & Co., 686 F.2d 642, 648 (8th Cir. 1982)). In Renfroe, the statute of limitations did not bar the plaintiff's claim when the medical community was unaware of a link between the plaintiff's cancer and her mother's use of diethylstilbestrol when the plaintiff was diagnosed. 686 F.2d at 647. In King, the statute of limitations barred the plaintiff's claims because the medical community knew, at the time the plaintiff suffered injuries, of a link between the plaintiff's exposure to fumes from thermal labels and the types of respiratory illness suffered by the plaintiff. 763 F.2d at 333.

         On the face of Plaintiff's pleadings, this is the rare circumstance contemplated in Renfroe, and distinguished by King. According to Plaintiff's Amended Complaint, the medical community was unaware of a possible link between PPI use and CKD until 2014, at the earliest, with more information available in 2016.[2] Doc. #23, ¶ 52. Plaintiff also alleges he and his physician could not have known of a link between PPI use and CKD due to Defendants' conduct concealing the risks from the medical community. Id., ¶¶ 50-51, 58, 95-96. Further, Plaintiff pleads tolling of the statute of limitations due to this conduct. Id., ΒΆΒΆ 105-108. Missouri law recognizes tolling of the statute of limitations in cases alleging fraudulent concealment. Mo. Rev. ...


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