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Charron v. Astrazeneca Pharmaceuticals LP

United States District Court, E.D. Missouri, Eastern Division

January 31, 2018

KENNETH G. CHARRON Plaintiff,
v.
AZTRAZENECA PHARMACEUTICALS LP, et al., Defendants.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court upon the motion of Kenneth G. Charron, an inmate at Northeast Correctional Center (“NECC”), for leave to commence this action without payment of the required filing fee. For the following reasons, the motion will be held in abeyance, and plaintiff will be given the opportunity to submit an amended complaint.

         28 U.S.C. § 1915(g)

         Plaintiff, a prisoner and a frequent filer of lawsuits, is subject to 28 U.S.C. § 1915(g), which limits a prisoner's ability to obtain in forma pauperis status if he has filed at least three actions that have been dismissed as frivolous, malicious, or for failure to state a claim. Section 1915(g) provides in relevant part:

In no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on three or more prior occasions, while incarcerated or detained in any facility, brought an action . . . in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g). Section 1915(g) is commonly known as the “three strikes” rule, and it has withstood constitutional challenges. See Higgins v. Carpenter, 258 F.3d 797, 799 (8th Cir. 2001).

         A review of this Court's files and those of the United States District Court for the Western District of Missouri indicates that plaintiff previously brought three civil actions that were dismissed as frivolous. See Charron v. Groose, No. 2:92-CV-4511 SOW (W.D. Mo. filed Dec. 3, 1992); Charron v. Mitchell, No. 2:92-CV-4567 SOW (W.D. Mo. filed Jan. 11, 1993); Charron v. Jawade, No. 4:93-CV-2485 GFG (E.D. Mo. filed Mar. 15, 1994). Therefore, the Court cannot permit plaintiff to proceed in forma pauperis unless he “is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

         The Complaint

         Plaintiff's complaint alleges product liability claims against three drug manufacturers. Although he does not allege any claims under 42 U.S.C. § 1983, he includes factual allegations that would likely give rise to a nonfrivolous action against his treating physicians for violation of his constitutional rights under the Eighth Amendment. The Court must liberally construe plaintiff's complaint, and therefore will address both sets of claims.

         (1)Plaintiff's Product Liability Claims

         Plaintiff brings this action against Astrazeneca Pharmaceuticals LP, Astrazeneca LP (collectively “Astrazeneca”), Wyeth Pharmaceuticals, Inc. (“Wyeth”), Procter & Gamble Co. (“P&G”), several unknown business entities, Corizon LLC, and several unknown employees of Corizon, alleging negligence (Count I); strict products liability (Count II); breach of express warranty (Count III); breach of implied warranty (Count IV); fraudulent misrepresentation and omission (Count V); and violation of the Missouri Merchandising Practices Act (“MMPA”).

         Plaintiff states that he was diagnosed with hiatal hernia with Schatzky ring, mild esophageal stenosis, and severe antritis with multiple duodenal ulcers on January 14, 2002. Since this time, he has taken prescription drugs Protonix, Nexium, Prilosec, and Prilosec OTC to treat these conditions. These drugs are commonly referred to as proton pump inhibitors (“PPIs”), and are prescribed to reduce stomach acid production.

         On July 9, 2014, plaintiff was diagnosed with chronic kidney disease, allegedly “as a result of his prolonged use of PPIs.” A CT scan showed two tumors and a blockage of plaintiff's kidney tubules. His right kidney was later removed. Over the span of twenty-eight months, doctors removed five additional cancerous tumors.

         Plaintiff alleges defendant drug companies willfully and intentionally misrepresented the risks of PPIs and failed to warn about the risk of acute interstitial nephritis, acute kidney failure, kidney cancer, and other kidney injuries associated with long term use of PPIs. Plaintiff alleges his kidney cancer is ...


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