United States District Court, W.D. Missouri, Western Division
RICHARD E. FOSTER, Plaintiff,
ASTRAZENECA PHARMACEUTICALS, LP, et al., Defendants.
ORDER AND OPINION DENYING DEFENDANT ASTRAZENECA
PHARMACEUTICALS LP'S AND ASTRAZENECA LP'S MOTION TO
D. SMITH, SENIOR JUDGE
is Defendants AstraZeneca Pharmaceuticals LP's and
AstraZeneca LP's Motion to Dismiss. 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.
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
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).
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).
Statute of Limitations
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.
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.
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. 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., ¶¶ 105-108. Missouri
law recognizes tolling of the statute of limitations in cases
alleging fraudulent concealment. Mo. Rev. ...