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Machala v. Boehringer Ingelheim Pharmaceuticals, Inc.

Superior Court of Delaware

June 29, 2017

MIREK MACHALA, Plaintiff,
v.
BOEHRINGER INGELHEIM PHARMACEUTICALS, INC.; BOEHRINGER INGELHEIM INTERNATIONAL GMBH; BOEHRINGER INGELHEIM VETMEDICA, INC.; and BOEHRINGER INGELHEIM USA CORPORATION, Defendants.

          Submitted: April 13, 2017

         Upon Defendants Boehringer Ingelheim Pharmaceuticals, Inc. and Boehringer Ingelheim USA Corp.'s Motion to Dismiss Plaintiff's Complaint GRANTED

          James D. Heisman, Esquire, Napoli Shkolnik, LLC, Wilmington, DE, Attorney for Plaintiff Mirek Machala.

          Michael P. Kelly, Esquire, Daniel J. Brown, Esquire, McCarter & English, LLP, Wilmington, DE, Eric E. Hudson, Esquire, Butler Snow, LLP, Memphis, TN, Attorneys for Defendants Boehringer Ingelheim Pharmaceuticals, Inc. and Boehringer Ingelheim USA Corp.

          Eric M. Davis, Judge.

         I. INTRODUCTION

         This is a products liability case arising out of the use of the drug Pradaxa. Plaintiff Mirek Machala filed a Complaint (the "Complaint") against Defendants Boehringer Ingelheim Pharmaceuticals, Inc. ("Boehringer Pharmaceuticals"), Boehringer Ingelheim International GmBH ("Boehringer International"), Boehringer Ingelheim Vetmedica, Inc. ("Boehringer Vetmedica"), and Boehringer Ingelheim USA Corp. ("Boehringer USA") (collectively, "Defendants"). The Complaint asserts causes of action for: (i) Strict Liability, (ii) Strict Liability - Design Defect, Marketing Defect and Manufacturing Defect, (iii) Negligence, (iv) Breach of Express Warranty, and (v) Breach of Implied Warranty.

         On February 16, 2017, Defendants Boehringer Pharmaceuticals and Boehringer USA (together, "the Boehringer Defendants") moved to dismiss the Complaint and filed Defendants Boehringer Ingelheim Pharmaceuticals, Inc. and Boehringer Ingelheim USA Corp.'s Motion to Dismiss Plaintiff's Complaint (the "Motion to Dismiss").[1] The Boehringer Defendants allege that the claims in the Complaint are barred by Delaware's two-year statute of limitations. Mr. Machala opposes the Motion to Dismiss and responded to the Motion to Dismiss on March 31, 2016 with Plaintiff's Opposition to Defendants' Boehringer Ingelheim Pharmaceuticals, Inc.'s and Boehringer Ingelheim USA Corp.'s Motion to Dismiss Plaintiff's Complaint (the "Response").

         The Court held a hearing and heard oral argument on the Motion to Dismiss on April 7, 2017. At the conclusion of the hearing, the Court asked the parties to submit additional briefing on the issue of whether Delaware's Borrowing Statute applies to and bars the claims in this case. On April 13, 2017, the Boehringer Defendants filed Defendants Boehringer Ingelheim Pharmaceuticals, Inc. and Boehringer Ingelheim USA Corp.'s Supplemental Brief in Support of its Motion to Dismiss Plaintiffs' Complaints Pursuant to Rule 12(b)(6) (the "Supplemental Motion")[2] and Mr. Machala's counsel filed Letter Brief in Further Opposition to Defendants' Motion to Dismiss Plaintiff's Complaint (the "Supplemental Response"). After receiving the Supplemental Motion and the Supplemental Response, the Court took the Motion to Dismiss under advisement.

         This is the Court's decision on the Motion to Dismiss. For the reasons set forth below, the Court GRANTS the Motion to Dismiss.

         II. RELEVANT FACTS[3]

         Mr. Machala is an individual and resident of the District of Columbia.[4] Boehringer Pharmaceuticals, Boehringer USA, and Boehringer Vetmedica are Delaware corporations doing business in Delaware.[5] Boehringer International is a foreign corporation with a principal place of business in Rhein, Germany.[6]

         Defendants were involved in the manufacturing, marketing, advertising, and distribution of the drug Pradaxa.[7] Pradaxa is a blood-thinning medication used to reduce the risk of stroke and blood clots in certain individuals.[8] Pradaxa was approved by the Food and Drug Administration ("FDA") on October 19, 2010, making it the first new treatment alternative to Coumadin.[9] Prior to FDA approval, Coumadin was the only oral anticoagulation available in the United States for reducing stroke and systemic embolism in patients with atrial fibrillation.[10]

         After FDA approval, Defendants promoted Pradaxa as a viable alternative to Coumadin in patients with atrial fibrillation.[11] Defendants' marketing campaign emphasized that Pradaxa, unlike Coumadin, did not require blood monitoring, dose adjustment, or changes to diet.[12]Pursuant to this marketing campaign, Mr. Machala's doctors received promotional materials from Defendants, and Mr. Machala also received direct-to-consumer advertisements.[13] Based on the information contained in these promotional materials, Mr. Machala began taking Pradaxa for atrial fibrillation on January 1, 2013.[14] Subsequently, Mr. Machala suffered a stroke on December 18, 2013 and was admitted to the hospital in the District of Columbia for several days.[15]

         On December 16, 2016, Mr. Machala filed the Complaint against Defendants. In short, the Complaint alleges that through their marketing campaign, "Defendants overstated the efficacy of Pradaxa with respect to preventing stroke and systemic embolism, failed to adequately disclose to or warn patients that there is no drug or means to reverse the anticoagulation effects of Pradaxa, and that such irreversibility could have permanently disabling, life-threatening and fatal consequences" such as increased risk of bleeding.[16] The Complaint further alleges that Defendants' actions directly and proximately caused Mr. Machala's injuries.[17]

         III. PARTIES' CONTENTIONS

         A. The Boehringer Defendants

         The Boehringer Defendants' main argument is that Mr. Machala's tort claims are barred by Delaware's two-year statute of limitations. The Boehringer Defendants contend that the language of Delaware's Borrowing Statute mandates that Delaware's-not the District of Columbia's-limitations period applies to and bars this case. Alternatively, the Boehringer Defendants argue that the Complaint fails to state a claim upon which relief can be granted because there is no causal connection between the claimed injury and the negligent acts of Defendants alleged in the Complaint.

         B. Mr. Machala

         Mr. Machala contests the applicability of Delaware's Borrowing Statute, arguing that it does not apply because there is no evidence that Mr. Machala engaged in forum shopping. However, even if the Borrowing Statute did apply, Mr. Machala argues that the limitations period was tolled by reason of Defendants' fraudulent concealment. As to the alternative argument, Mr. Machala contends that the Complaint is properly pleaded because Defendants' failure to warn of specific dangers, including but not limited to when Pradaxa fails to act as intended, establishes a causal connection between the negligent acts of Defendants and the claimed injury.

         IV. STANDARD OF REVIEW

         Upon a motion to dismiss under Civil Rule 12(b)(6), the Court (i) accepts all well-pleaded factual allegations as true, (ii) accepts even vague allegations as well-pleaded if they give the opposing party notice of the claim, (iii) draws all reasonable inferences in favor of the non-moving party, and (iv) only dismisses a case where the plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances.[18] However, the Court must "ignore conclusory allegations that lack specific supporting factual allegations."[19]

         V. DISCUSSION

         A. Whether Delaware's Borrowing Statute mandates application of Delaware's statute of limitations

         The Boehringer Defendants argue that Mr. Machala's tort claims are controlled and barred by Delaware's statute of limitations. As between Delaware and the District of Columbia ("D.C."), the Boehringer Defendants maintain that under Delaware's Borrowing Statute, Delaware's statute of limitations applies because it is the shorter of the two limitations periods. The Court agrees that Delaware's statute of limitations applies based on the express language of Delaware's Borrowing Statute.

         As a general rule, the law of the forum governs in matters relating to the statute of limitations.[20] However, Delaware's Borrowing Statute (the "Borrowing Statute") modifies this general rule in certain circumstances:

Where a cause of action arises outside of this state, an action cannot be brought in a court of this State to enforce such cause of action after the expiration of whichever is shorter, the time limited by the law of this State, or the time limited by the law of the state or country where the cause of action arose for bringing an action upon such cause of action.[21]

         Under the Borrowing Statute, Delaware courts must apply the Delaware limitations period if it is shorter than the limitations period that might apply from another jurisdiction.[22]

         Applying the plain language of the Borrowing Statute, the Court finds that the Borrowing Statute governs the limitations period in this case. Here, the facts are that the cause of action arose in D.C. and not Delaware. Mr. Machala was proscribed Pradaxa and ingested Pradaxa in D.C., and subsequently suffered a stroke in D.C. As between the Delaware limitations period and the D.C. limitations period, the Borrowing Statute mandates that the Court apply the shorter of the two periods. Delaware's limitations period for tort claims is two years.[23] D.C's is three years.[24] As such, the Borrowing Statute dictates that Delaware's two-year limitations period applies.

         Mr. Machala asks the Court to ignore the plain language of the Borrowing Statute and read-in a forum shopping exception. Mr. Machala relies on the decisions in Saudi Basic Industries Corporation v. Mobil Yanbu Petrochemical Company[25] and Furnari v. Wallpang in support of his argument.[26] In these cases, the particular court declined to apply the Borrowing Statute, in part, based on a lack of evidence that the plaintiffs engaged in forum shopping when selecting Delaware to litigate their claims. The Court finds that these cases are both exceptional and distinguishable from the rest of the Delaware's Borrowing-Statute jurisprudence.

         In Saudi Basic, the plaintiff, Saudi Basic Industries Corporation ("SABIC"), brought a declaratory judgment action against defendants, Mobil Yanbu Petrochemical Company and Exxon Chemical Arabia, Inc. (collectively, "ExxonMobil") in Delaware.[27] ExxonMobil then asserted counterclaims in tort and for breach of contract.[28] In response, SABIC argued that the Borrowing Statute applied to and barred ExxonMobil's counterclaims.[29] SABIC relied on the plain language of the Borrowing Statute and argued that because (i) the counterclaims arose in Saudi Arabia, and (ii) Delaware's limitations period was shorter than Saudi Arabia's limitations period, Delaware's limitations period applied to and barred the counterclaims.[30]

         In ruling, the Saudi Basic court noted that the Borrowing Statute, if applied, would bar ExxonMobil's counterclaims, despite the fact that ExxonMobil did not choose to litigate the claims in Delaware and that the counterclaims, if brought in Saudi Arabia, would not have been barred.[31] Based on these facts, the Saudi Basic court rejected the "literal construction" of the Borrowing Statute and read-in a limited forum shopping exception in order to preserve ExxonMobil's counterclaims.[32] The Saudi Basic court explained that the Borrowing Statute was designed for the very specific purpose of preventing a non-resident plaintiff from forum shopping, i.e. "circumventing the shorter limitations period mandated by the jurisdiction where the cause of action arose."[33] The Saudi Basic court found that the "literal construction" of the Borrowing Statute, if applied to these facts, would subvert the statute's underlying purpose and deprive ExxonMobil of any forum to assert its counterclaims because "the party that was shopping for the most favorable forum was SABIC, not ExxonMobil. . . ."[34] The Saudi Basic court thus crafted an exception that rejected SABIC's attempt to use Delaware and Delaware law for the sole strategic purpose of insulating itself from ExxonMobil's counterclaims.[35]

         This Court in Furnari similarly declined to apply the plain language of the Borrowing Statute in favor of a forum shopping exception.[36] The plaintiff, a Florida resident, sued defendant, a Delaware corporation based in Ontario, Canada, in a Florida court on two separate occasions.[37] Both lawsuits were dismissed for lack of jurisdiction.[38] Consequently, plaintiff filed a lawsuit in Delaware for the sole purpose of obtaining jurisdiction over defendant.[39] This Court found that the Borrowing Statute did not apply to or bar plaintiff's claims because "plaintiff was not attempting to circumvent the expiration of his claims by filing in Delaware, but only [sought] jurisdiction over the parties."[40] The Furnari court thus crafted an exception that preserved plaintiff's claims when plaintiff was forced, for jurisdictional reasons, to file in Delaware.[41]

         The Court does not find that any of the concerns raised by the Saudi Basic or Furnari courts are implicated in this case. This is not a case where Mr. Machala was brought as a defendant to Delaware to litigate this action. Moreover, Mr. Machala did not have to file this action in Delaware in order to assert jurisdiction over the Boehringer Defendants. Mr. Machala is a non-resident plaintiff who chose to file his claims in Delaware. In fact, Mr. Machala's counsel admitted at the hearing on the Motion to Dismiss that this case could been filed in D.C., but that counsel chose to file in Delaware because Delaware courts have experience litigating claims involving Pradaxa.[42] The Court concedes that this civil action does not present as the standard scenario of shopping for a forum with a longer limitations period, but it is forum shopping nonetheless. As such, even if the Court chose to read-in a forum shopping exception to the Borrowing Statute, such an exception would not preclude application of the Borrowing Statute.

         Given the facts of this case, the Court chooses to follow the majority of decisions that have applied the plain language of the Borrowing Statute in situations similar to the one presently before the Court. In Huffington v. T.C. Group, LLC[43], this Court applied the plain language of the Borrowing Statute and held that plaintiff's claim was time barred.[44] In rendering its decision, the Court rejected plaintiff's assertion that Saudi Basic created a broad ruling limiting the Borrowing Statute to only those instances where the plaintiff seeks to avoid a jurisdiction with a shorter limitations period.[45]

         The Delaware Court of Chancery reached a similar conclusion in TrustCo Bank v. Mathews.[46] The court found that the Borrowing Statute applied "when a plaintiff's cause of action arose out of state, irrespective of whether the plaintiff is forum shopping."[47] The court further explained that the application of Saudi Basic was limited to instances where "an absurd outcome or result that subverts the Borrowing Statute's fundamental purpose would otherwise occur."[48] The court left any greater alternation of the Borrowing Statute to the Delaware Legislature.[49]

         Finally, then-Chancellor, now-Chief Justice Strine reached the same conclusion in Century Mortgage Co. v. Morgan Stanley Mortgage Capital Holdings, LLC.[50] In that case, the court refrained from any statutory analysis or legislative history of the Borrowing Statute and opted to apply the statute's plain language.[51] The court succinctly held that, where the cause of action arose in New York, Delaware's shorter ...


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