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Evans v. Genentech, Inc.

Superior Court of Delaware, Kent

January 23, 2015

AUGUSTUS HEBREW EVANS, JR., Plaintiff,
v.
GENENTECH, INC., Defendant.

Submitted: December 19, 2014

Upon Consideration of Defendant's Motion to Dismiss

Augustus Hebrew Evans, Jr., pro se.

Michael P. Kelly, Esquire, McCarter & English, LLP, Wilmington, Delaware for Defendant.

ORDER

ROBERT B. YOUNG J.

SUMMARY

Augustus H. Evans ("Plaintiff") allegedly suffered adverse side-effects after taking a medication prescribed to him in prison. The medication is produced by Genentech, Inc. ("Defendant"). Plaintiff decided to take legal action against Defendant, more than three years after the known presence of the alleged side-effects. Unfortunately, for Plaintiff, this decision was a tardy one. 10 Del. C. § 8119 requires that personal injury actions be filed within two years of the alleged tort. Plaintiff's claim is, thus, time-barred. The Court GRANTS Defendant's Motion to Dismiss.

FACTS AND PROCEDURES

___In February 2007, Plaintiff, an inmate at James T. Vaughn Correctional Center in Smyrna, Delaware, was prescribed Naprosyn by his prison doctor. Shortly thereafter, Plaintiff claims to have started to experience extreme headaches. In June 2014, more than seven years later, after allegedly hearing a radio advertisement issued by the Food and Drug Administration ("FDA"), that Naprosyn may cause headaches, Plaintiff determined to file suit against its manufacturer, the Defendant. On August 15, 2014, Plaintiff initiated the present action, filing a Complaint. Defendant moves to dismiss.___

DISCUSSION

Plaintiff, a prolific litigant who has gained notoriety among the Delaware courts[1], has again sought the recourse of the legal system of this State. This time, Plaintiff files suit against a pharmaceutical company that produced a medication, prescribed to him by his prison physician. Plaintiff alleges that, after taking Defendant's medication, Naprosyn, he developed headaches. From this purported injury stem six claims: 1) negligent failure to warn; 2) negligent misrepresentation; 3) breach of implied warranty of merchantability; 4) breach of implied warranty of fitness for a particular purpose; 5) breach of express warranty; and 6) fraud.

Defendant moves to dismiss all six of Plaintiff's claims under a number of theories.[2] Sometimes it is the most simple and largely procedural motion that resolves the issue. Such is the case here. Pursuant to 10 Del. C. § 8119, claims for personal injuries are subject to a two year statute of limitations. The Court finds that Plaintiff was late in bringing this action. As a result Plaintiff's suit is now time barred.

The two year statute of limitations imposed by 10 Del. C. § 8119, involves the issue of when the clock begins to tick. The limitations period begins to run "when a harmful effect first manifests itself and becomes physically ascertainable."[3] Defendant argues, based on Plaintiff's own allegations in his Complaint, that Plaintiff's ailment first appeared in February 2007, self-described as "severe headaches." Defendant avers this is the physical manifestation called for by the statute. As such, Plaintiff had until February 2009 to file this action. Plaintiff failed to commence any action until August 15, 2014, more than seven (7) years later.

In response to Defendant's assertion that his lawsuit is time barred, Plaintiff cites to the Delaware Supreme Court case Brown v. E.I. duPont de Nemours & Co., Inc.[4] In Brown, the Supreme Court recognized that although a Plaintiff may begin exhibiting physical symptoms of an injury, she may not be able, at the time, to discern their cause. In such situations, the statute of limitations period found in ยง 8119, is extended to when the Plaintiff is on notice of the potential tortfeasor. By analogy, Plaintiff argues that he was ...


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