Opinion
No. FST CV 095012157
November 14, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #154
INTRODUCTION
This action was filed on March 6, 2009 by Tina Bayless, John Bayless and John Wesley Bayless PPA John Bayless ("Plaintiffs") in Six Counts alleging injuries to Tina Bayless as a result of an addiction to OxyContin. John Bayless is the spouse of Tina Bayless and John Wesley Bayless is her son. They filed their claims as derivative actions to those of Tina Bayless. The complaint alleges that the defendants Purdue Frederick Company, Inc. d/b/a The Purdue Frederick Company, Purdue Pharma, L.P., and Purdue Pharma, Inc. (hereinafter collectively "Purdue") were engaged in the business of selling, manufacturing, constructing, designing, formulating, preparing, assembling, testing, marketing, packaging, labeling, advertising, promoting, distributing and/or providing warnings or instructions for OxyContin tablets throughout the United States. Counts One, Three and Five allege a claim for each of the plaintiffs pursuant to the Connecticut Products Liability Act ("CPLA") and Counts Two, Four and Six allege a claim for each plaintiff pursuant to the Connecticut Unfair Trade Practices Act ("CUTPA"). On June 24, 2011, the court granted the plaintiff's motion to amend the complaint. The Amended Complaint is dated April 22, 2011. The Amended Complaint does not allege any new cause of action.
The defendant has filed this motion for a summary judgment contending that Counts One, Three, and Five have not been filed within the three-year statute of limitations for a claim pursuant to Connecticut Products Liability Act, C.G.S § 52-577a(a). The defendant argues that the CUTPA claims are barred by the three-year limitation period from the date of the violation, C.G.S. § 42-110g(f), and the exclusivity provision of the CPLA, C.G.S. § 52-572n(a). Lastly, the defendant contends that the plaintiff cannot show that any conduct of the defendants caused their injuries.
On May 23, 2011, the Plaintiffs filed a memorandum with exhibits and an affidavit in objection to the motion for summary judgment the defendant submitted a reply memorandum dated June 3, 2011. The court heard argument on June 24, 2011. The parties have waived the 120-day time limit for a decision by the court.
FACTUAL BACKGROUND
The facts alleged in the complaint outline a complicated set of facts that occurred over a lengthy period of time. The plaintiff's complaint states beginning sometime in February 1999 she was prescribed OxyContin by her doctor for treatment of back pain. She continued to take the OxyContin through a prescription from her physician, Dr. Pauza, and later a second physician, Dr. Belt, until March 2003 when her health care insurance was no longer available. At this time it is unclear if she had a COBRA policy or no insurance coverage for her medication, but the medication was no longer covered in the same manner. After March 2003 it appears, she utilized other methods to obtain the drug such as, taking her husband's prescription, working out a scheme to have a friend give her the medication, utilizing credit cards to get money, selling a collection of her brother's and using her son's money in order to obtain it on the street. The financial stresses caused her to file for bankruptcy in 2005. At some point, Mrs. Bayless attempted suicide, was hospitalized and entered a methadone clinic for treatment because of her use of OxyContin. In May 2007, officials of the defendants pled guilty in federal court for misbranding and fraud related to the manufacture and distribution of OxyContin. Prior to this in November 2007, her daughter saw something on the internet about OxyContin and asked her to fill out an online questionaire that related to OxyContin. Shortly thereafter she received calls from a number of individuals about OxyContin. In January 2008, she hired an attorney to file an action relating to the use of the OxyContin.
At the time she filed the legal action, she had determined that the OxyContin was bad because once you got on it, you could not get off the medication. She describes what occurred to her beginning with the first prescription by Dr. Pauza. The plaintiff describes years of her use of the medication which was handling her pain and the impact it had upon her ability to work and thereafter her need which she realized was an addiction. Her behavior ultimately resulted in the financial destruction of the entire Bayless family as well as distrust and mental and physical debilitation of the matriarch of the family.
This legal action was filed in March 2009. The complaint does not set forth a chronology of dates for her use and prescription of the medication. Mrs. Bayless is a poor historian when it comes to a description of her use of the medication beginning in 1999 until 2007-2008.
The defendant submitted as Exhibit B to the Motion for a Summary Judgment, the entire deposition testimony of Mrs. Bayless. The court read all of the deposition testimony and thus arrives at the conclusion that Mrs. Bayless is a poor historian. This is so even with the use of the medical records from Dr. Pauza and Dr. Belt. However, the deposition testimony does assist the court in determining whether summary judgment is appropriate.
DISCUSSSION GENERAL STANDARD
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).
"In ruling on a motion for summary judgment the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
"The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Id., 11.
"A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like." Practice Book § 17-45. "[B]efore a document may be considered by the court in support of a motion for summary judgment, `there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . .' Conn. Code of Evid. § 9-1(a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).
"[Section 17-46] sets forth three requirements necessary to permit the consideration of material contained in affidavits submitted in a summary judgment proceeding. The material must: (1) be based on personal knowledge; (2) constitute facts that would be admissible at trial; and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit." (Internal quotation marks omitted.) Barrett v. Danbury Hospital, 232 Conn. 242, 251, 654 A.2d 748 (1995). The court may consider not only the facts presented by the parties' affidavits and exhibits, but also the "inferences which could be reasonably and logically drawn from them . . ." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969).
The defendant has challenged the use of the affidavit of Dr. Callegan because it provides inadmissible conclusory opinion.
A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
LIMITATION PERIOD
The plaintiffs have brought this action pursuant to Conn. Gen. Stat. § 52-577a(a) which provides that a claim shall be brought "within three years from the date when the injury, death, or property damage is first sustained or discovered or in the exercise of reasonable care should have been discovered . . ."
The defendants contend that the statute of limitations for purposes of this claim began to run when Mrs. Bayless had reason to believe she was dependent upon or addicted to the medication of OxyContin prescribed for her beginning in 1999. In the alternative, the defendants contend that actions of Mrs.Bayless prior to the 2006 demonstrate knowledge that she was addicted to OxyContin. The question before the court is whether the plaintiffs filed the complaint well beyond the statutory period because she knew or had reason to believe that she was addicted or dependent upon OxyContin as early as June 1999 and before March 2006.
The plaintiffs contend that the defendants are too restrictive in their view of the facts as to when the plaintiff should have known she had a claim because they have relied upon a narrow and selective portion of the plaintiff's deposition testimony. The plaintiffs contend that the finding as to the application of the statute and the limitations period requires more than the manifestation of physical effects such as has been relied upon by the defendants. The plaintiffs argue that she could not have discovered in the exercise of reasonable care that her physical and psychological problems were caused by taking OxyContin until she had suffered some actionable harm. Additionally, the plaintiffs argue that the various elements of the product liability action for failure to warn, misrepresentation and breach of warranties have not been addressed by the defendants nor demonstrated to fall beyond the limitation of the action. The term "actionable harm" is defined as requiring that the plaintiff discovered 1) she was injured; 2) the defendant was negligent; and 3) the plaintiffs' injury was caused by the defendants' negligence. To have an actionable harm and be successful on this motion the plaintiffs contend that all three elements need to be shown.
In following this argument, the plaintiffs argue that it was not simply the realization that she had an addiction but that she had to discover or in the exercise of reasonable care should have discovered that Purdue misrepresented the drug and breached the warranties related to the drug as noted in their Amended Complaint. The plaintiffs contend that because the defendants do not establish or argue in its motion a specific date other than June 1999 when Mrs. Bayless discovered or should have discovered the wrongful conduct of Purdue it has failed to meet its burden for a summary judgment. The plaintiffs also argue that she did not know of the negligence of Purdue nor in the exercise of reasonable care should have known of the negligence until either the internet information or the plea entered by officials of the defendant for fraud and misbranding in violation of the federal statutes. Thus the plaintiffs contend that the defendants have not demonstrated the three elements of actionable harm.
The defendants argue in support of the motion for summary judgment that the original complaint filed by the plaintiffs states that she "rapidly" developed an addiction and thus the time period that she should have discovered not only her addiction but that it was caused by the alleged negligence of the defendants occurred well before the 2007 events that gave rise to the cause of action pursuant to the Connecticut Products Liability Statute. In support of the defendants contention that the plaintiffs have filed this action beyond the applicable three-year statute, they also refer to events after the June 1999 incident and state the plaintiff knew of her addiction when 1) she illegally bought OxyContin on the street; 2) illegally took OxyContin from prescriptions written for her husband; 3) illegally acquired OxyContin from a scheme in which a friend would divert her pills to Tina Bayless; and 4) bankrupted the family by draining her family's money to pay for her illegally obtained OxyContin. (Exh. B Depo. at 117, 129 and 134, 151, 153, 159, 160.) The defendants argue that all of these events occurred after her last prescription from Dr. Pauza and up until 2005 when she declared bankruptcy but all before March 2006.
The amended complaint dated April 22, 2011 eliminated the word "rapidly" as part of the allegations.
In response to this argument, the plaintiffs contend that Tina Bayless had a need for the OxyContin because she would be in pain and unable to function in the daily activities of being with her son or moving without the back pain that caused her to initially take the drug. In her mind at the time she took the medication it was to address her back pain. She stated in her deposition, "Looking back now, it was all connected to it, but then I didn't see it like that. I thought I could be the good mom, I could get out there and go the games. I could throw the ball with him. I could do things without the pain. That is how I saw it then. (Defendant's Exh. B 156.) She testified that now she sees it differently, "Now I see it all, I see it all right now, how wrong I was. The stuff that I done, but when I was doing it, it was not wrong." (Defendant's Exh. B 159.) Consistent with this testimony, she argues that she was not aware of her addiction and that even after an attempt at suicide she still did not realize that the cause of her serious addiction was the result of the negligence, misrepresentation and failure to warn of the extreme and swift addictions to consumers that were known by Purdue when it placed the drug on the market and actively marketed it to physicians without full disclosure as to this impact. The allegations in the complaint refer to the actions of the defendants in concealing the effects of the drug and the defendants' knowledge of the effects. The plaintiffs contend that the first time she had a suspicion that there was anything wrong, improper or defective was when her daughter Regina Kyle asked her if she could fill out a questionnaire online related to OxyContin in November 2007. (Defendant's Exh. B 162.) In response to an inquiry as to when she became addicted she responded, "I'm not sure of the date that I became addicted to the OxyContin. If you were to ask me, I would say — I would say I was not addicted to it. The date I realized I had a problem is when I checked myself into the methodone clinic." (Defendant's Exh. B 168-69.) Additionally, she alleges that it was on May 10, 2007 that officials of the defendant pled guilty to federal charges of misbranding OxyContin with the intent to defraud or mislead in violation of Title 21, United States Code, Sections 331(a)(2) and paid fines for the violations.
The critical language in the statute and for consideration in this motion is the qualifying language, "in the exercise of reasonable care should have been discovered." The plaintiffs rely upon a series of cases in support of their argument and the facts of the instant action that "actionable harm" was not reasonably known to the plaintiff until 2007. These cases address claims for the two-year statute of limitations for medical malpractice actions. Although the cases involve medical malpractice claims and not a products liability claim, they are instructive as to the interpretation and application of the language "actionable harm." Burns v. Hartford Hospital, 192 Conn. 451 (1984), Catz v. Rubenstein, 201 Conn. 39 (1986). The defendants cite to a federal case for the proposition that a product's liability claim begins to run when the plaintiff first suspects the product has caused her injury. Gnazzo v. G.D. Searle Co., 973 F.2d 136, 138-39 (2d Cir. 1992). The Gnazzo case while expressing the standard in the law involves a set of facts which are distinct from this case. The defendants attempt to apply the facts in Gnazzo to the actions of Mrs. Bayless. Although the situation in Gnazzo may be similar to the facts as interpreted by the defendant they are very different from the facts set forth by the plaintiff. The Gnazzo case relied upon by the defendants refers to Burns v. Hartford Hospital, 192 Conn. 451, 460 (1984), and Catz v. Rubenstein, 201 Conn. 39, 47 (1986,) for the requirement of a finding of "actionable harm." In Catz, the court states: "The focus is on the plaintiff's knowledge of facts, rather than on discovery of applicable legal theories. Catz, supra, 47. The defendants contend that the statute begins to run when the plaintiff discovers some form of actionable harm. "Actionable harm occurs when the plaintiff discovers or should discover through the exercise of reasonable care, that he or she has been injured and that the defendants' conduct caused the injury." Champagne v. Raybestos-Manhattan, 212 Conn. 509, 562 A.2d 1100, 1107 (1989. In Gnazzo, the plaintiff became aware of not only an injury but that the injury she had was the result of an IUD device. The plaintiff in Gnazzo, acknowledged that she suspected that the IUD had caused her harm because she had experienced difficulty getting pregnant and had started to hear and read about the damage from an IUD and thus had determined it was the cause of her physical problem. However, the plaintiff in Gnazzo did nothing at the time because she was dealing with marital problems. This behavior is starkly different than the testimony of Mrs. Bayless about her use of OxyContin. In the instant action, it is not clear that the plaintiff made any connection to the addictive nature of OxyContin or that she was suffering an injury including addiction as a result of the use of OxyContin. The allegations by the plaintiffs of the attempts and conduct of the defendants to withhold information about the effects of the product, failing to warn of the addictive nature, misbranding in relation to the addictive defects, if true, lends some credence to the plaintiff's ignorance that the drug did much more than take away the pain and act as her "miracle" pill to allow her to work and enjoy her family. The deposition testimony of Mrs. Bayless is in stark contrast to the defendant's description of her being plagued by withdrawal symptoms. The defendants in their memorandum provide bits and pieces of her testimony in response to their specific questions about withdrawal but neglect to provide the complete response in some answers that qualifies or expands the answer to provide a doubt as to whether she was aware of any withdrawal at that time. For instance, she stated that in June 1999 when her granddaughter was sick that: "My husband and I partially connected my getting sick on Saturday with running out of OxyContin — because I remember my granddaughter had a virus and there was something going around so I thought I might have had a little bit of what she had also. I didn't know which to blame it on." (Defendant's Exh. B 38 and 42.) The parties interpretations of the testimony of Mrs. Bayless requires a determination of whether the actions or descriptions and feelings of Mrs. Bayless establish that she did know or should have known that she was suffering as a result of some negligent behavior by the defendants. It is necessary to determine if the statements of Mrs. Bayless which, for example, relay to the defendants that she believed she had a virus in 1999 rather than undergoing withdrawal for an addiction are credible. It is not the court's job to weigh the evidence, the conflicting statements of the parties and come to a conclusion as to who is to be believed.
Other than the June 1999 virus date, the defendants do not provide a definitive date to begin the analysis as to when the plaintiff should have discovered that the defendants caused her alleged injury pursuant to the statute. The defendants continue to refer to the June 1999 illness as the seminal date to begin the statutory period. The plaintiffs argue this date is not applicable because she did not realize or have reason to believe that she was addicted or that the defendants had misrepresented, misbranded or improperly marketed the medication without a full disclosure of its addictive nature or grave consequences with limited use. The defendants have cited portions of the deposition testimony of Mrs. Bayless as support for the contention that in the exercise of reasonable care she should have known about the alleged claims about the medication in June 1999 or at various times after that date. The deposition testimony included medical records which the plaintiff alleged discussed weaning off the medication with her physician not because she was addicted but because she was no longer covered by insurance and had only COBRA. In order to determine if the plaintiff should have known of the negligence the court would need to determine whether her explanations and descriptions are credible. Even though she candidly admits all of the actions to obtain the medication she continually testified that "In my mind, I could have quit if I wanted," or "I never looked at myself as having a problem — an addiction. I mean, I knew I wanted the pill, that it made me feel better. I knew that if I didn't get it, that I was going to get sick, but I never put together that I was addicted to it or a drug addict." (Defendant's Exh. B 66-67.) During the time that she was using the OxyContin, Mrs. Bayless had not seen any ad or coverage about OxyContin nor did she know anyone who had a problem with the drug. (Defendant's Exh. B 168.) There are no facts to demonstrate that the plaintiff knew or should have known of the claims about the drug. She believed the medication was a "miracle" because before it came on the market she had "too much pain." (Defendant's Exh. B 138.) In discussing why she needed to take the medication, defendants continued to emphasize the possibility of becoming physically sick but Mrs. Bayless also continually emphasized that she needed the pills because "I have severe pain when I don't have the medication. Sometimes I can't get up. I've tried heating pads. I've tried everything." (Defendant's Exh. B 135.) So, at the time she continued in her many efforts to get the medication, the question remains was it the need to eliminate the pain in her mind or was it withdrawal concerns? There was additional conflicting testimony when she stated that she tried to get off because it took everything to pay for it, but it works. (Defendant's Exh. B 172, 175.) It took the pain away. (Defendant's Exh. B 67-68.) She describes her use of it as, "I did not want to do without the miracle pill that made me able to get around and take my pain. Nothing else would take my pain away like the OxyContin pill would." (Defendant's Exh. B 106-07.) The plaintiff stated that she did not realize that it was a problem until she tried to commit suicide, went to the hospital and then entered the methadone clinic and counseling. (Defendant's Exh. B 53, 113, 133, 168-69.)
In the plaintiffs' memorandum in opposition to the motion, they contend that Tina Bayless did not discover the defendant's negligence until November 2007 when her daughter filled out an online survey regarding OxyContin. However, even at this time the plaintiff contends that she was not certain what it involved because she was not a computer person. (Defendant's Exh. B 162.) It was after this online application that Tina Bayless started to receive calls from a number of people including attorneys about the problem with OxyContin. Until this time she was unaware of the allegations that the defendants had misrepresented and acted negligently so as to breach its duty to the plaintiff and cause the addiction related difficulties she had been encountering. (Pl. Exh. D pp. 46-48, 52-53, 65-70, 135-37, and 170-71.) If anything, the plaintiff's deposition creates confusion and uncertainty as to what the plaintiff knew and when she acquired the information.
When the plaintiff in the exercise of reasonable care should have discovered "actionable harm" is ordinarily a question of fact. Taylor v. Winsted Memorial Hospital, 262 Conn. 797, 810, 817 A.2d 619 (2003). The case of Jackson v. Tohan, 113 Conn.App. 782 (2009), provides a reasoned approach to the situation in which there is a question as to what "the plaintiff should have known and when he should have known it." Jackson, 790, citing Tarnowsky v. Socci, 75 Conn.App. 560, 570, 810 A.2d 728 (2003), aff'd., 271 Conn. 284, 856 A.2d 408 (2004). On appeal, the court determined that questions of this nature are factual and are not properly decided in a summary judgment. In Jackson, the plaintiff had surgery during which her bowel was cut requiring additional surgery to repair and a lengthy recovery. During the time period extending months after the discovery of the mistaken cut, the plaintiff was in intensive care and heavily medicated. The defendants filed a summary judgment motion arguing that the plaintiff failed to file the action within the two-year statute that began to run with the providing of reports and telling the plaintiff there was an error during the surgery. Although the operation reports indicated the names of the physicians who assisted and the plaintiff was told about the error she argued that the time period for the statute should not be determined based upon the disclosure of the names in the report or being told there was an error because she could not recall being informed or seeing any reports because of her condition. The plaintiff's argument in Jackson is that although the information was either available or relayed, because of her physical condition it was not reasonable that she should have known that the defendant was negligent. Therefore, although the plaintiff could have known in the scenario presented, there was a factual question as to whether the plaintiff, in the exercise of reasonable care, should have known of the participation of a second physician and the causation of the injury. The trial court granted the motion for summary judgment and on appeal it was reversed. The Jackson court followed Tarnowsky, supra, 75 Conn.App. 560, holding that "[t]he plaintiff is entitled to his day in court for a factual determination of what he should have known and when he should have known it." Jackson, supra., 113 Conn.App. 790. The facts in Jackson are not similar to the present case but the language of Jackson that recognizes the need to have a factual determination as to whether a reasonable person should have known of the negligence is precisely the situation which is now before this court. Like Jackson, this court is of the opinion that based upon the findings below, the question as to when the plaintiff should have known that she was addicted and that such addiction was caused by the actions or inactions of the defendants is a genuine issue of fact.
The defendants cite a number of decisions that they contend support the position that the court should determine that the plaintiffs in the exercise of reasonable care, should have known of the alleged negligence and thus have filed this action beyond the applicable statute of limitations. The cases relied upon by the defendants in support of its motion for summary judgment involve varied fact patterns, none of which provide support for the defendant's position for summary judgment. In Franz v. Purdue Pharma Co. et al., 2006 DNH 24; 2006 U.S. Dist. Lexis 7398 (Feb. 22, 2006), the plaintiff was hospitalized specifically for addiction to and withdrawal from OxyContin. Thereafter, she did not file an action within the applicable two-year statute of limitations. The court found her case time barred because she had a basis to know and upon reasonable inquiry would have been able to discover the connection to her behavior and the drug she no longer used. The Franz case is similar to the plaintiff in Freund v. Purdue Pharma Co. et al., 2006 U.S. Dist. Lexis 17125 (U.S.D.C. Wisc. Feb. 2006), in which the plaintiff had attempted suicide by overdosing because it was "the best way out of addiction . . ." Id. The court in Freund found that the plaintiff by her own statements that the drug was the center of her life and her addiction was so distressing that suicide was the only way out made her aware of the effect of OxyContin that would have led to the legal action. Neither of the fact patterns in these cases are similar or provide a basis for this court to find that Tina Bayless had come to the realization that OxyContin was controlling her life and causing an addiction at some time prior to the three-year statute of limitations. In the instant action, the plaintiff continually stated in her deposition testimony that she did not believe she had a problem and that she could control it. (Defendant's Exh. B 48, 52, and 67.) Unlike the plaintiff in Franz who acknowledged the depth of her addiction and did nothing to address it in the court, Mrs. Bayless contends she did not have an addiction during the time period highlighted by the defendants. After her suicide attempt, hospitalization and therapy she realized she needed help and had an addiction. This was not a situation like Franz when the plaintiff acknowledged the information that would lead to a realization that OxyContin caused her addiction. However, even if Tina Bayless had some belief that she developed an addiction during this time period, it does not fully address the claims of negligence and all of the elements necessary for a finding that she should have known that the Defendants conduct caused her injury and damages.
The Defendants also cite to the case of Gallina v. Purdue Pharma Co. et al., U.S.D.C. (W.D.Tenn. April 28, 2006, Donald, J.), Case #2:05 CV02380 BBD, in support of their position that Tina Bayless should have known in the exercise of reasonable care that her withdrawal was caused by the OxyContin. Not only are the facts of Gallina different but the reliance upon this case is based upon the assumption of the defendants that in June 1999 Ms. Bayless knew she was experiencing withdrawal from the OxyContin. The plaintiff in Gallina suffered severe withdrawal and addiction symptoms when his prescription for OxyContin expired in September 2000, yet the plaintiff waited four years to bring his action. The plaintiff experienced painful withdrawal with mood changes within days after stopping his OxyContin. There was no doubt that the physical effects were the result of no longer taking the OxyContin. The court determined that the plaintiff should have reasonably known of the adverse effects when he underwent the difficult withdrawal and thus failed to file within the statutory time period. It is not clear in this action as to when the plaintiff realized or should have realized the connection between OxyContin and her behavior. Once again the defendants relate back to the June 1999 incident where the plaintiff questions whether she had a virus or was suffering from withdrawal. The plaintiff contends she did not equate her physical illness to an addiction. Unlike the plaintiffs in Franz, Freund, and Gallina, the plaintiff has not testified that she was undergoing this painful withdrawal that manifested itself in attempts at suicide or severe and extended illness. Whether or not the June 1999 incident is sufficient to find she should have known of the addictive effects of OxyContin at that time is a question of fact. It is unclear if Mrs. Bayless continued the use of OxyContin because it was a "miracle" drug that kept the back pain away and permitted her to continue her daily activities or if she was continuing the medication because she was fighting addiction in the sense of the physical effects that are manifested with withdrawal. This distinction distinguishes Mrs. Bayless and this action from those relied upon by the defendants.
The April 22, 2011 Amended Complaint also alleges in part that, "Purdue was negligent in its' sale etc. of OxyContin in one or more of the following ways . . . a. improperly sold, etc., OxyContin which was readily susceptible to addiction and dependence; b. misrepresented, marketed and promoted OxyContin as less addictive, less subject to abuse, dependence and diversion, and less likely to cause tolerance and withdrawal than other pain medication, when it knew or should have known that this was false or misleading; c. misbranded OxyContin; d. failed to properly and adequately warn or advise Tina Bayless and/or her physicians of the risks, health hazards, dangers, effects, and/or defects of OxyContin, including but not limited to, the highly addictive potential of the drug; e. misled Tina Bayless and/or her physicians regarding the risks, health hazards, dangers, effects, and/or defects of OxyContin, including but not limited to, the highly addictive potential of the drug; . . . h. withheld from the FDA, physicians, or other health care providers, pharmacists, and patients, including Tina Bayless and/or her physicians, information regarding the risks, health hazards, dangers, effects, and/or defects of OxyContin, including but not limited to, the highly addictive potential of the drug; i. misinformed the FDA by providing it with incomplete and inaccurate information; j. misrepresented the state of the research, opinion and medical literature pertaining to the purported benefits of OxyContin and its associated risks, health hazards, dangers, effects, and/or defects, including but not limited to, the highly addictive potential of the drug; l. inadequately tested OxyContin in a manner that concealed the risks, health hazards, dangers, effects, and/or defects of the drug, including but not limited to, the highly addictive potential of the drug; . . . n. failed to issue timely warning, recall the drug, publicize the problems, and/or otherwise act properly and timely to alert Tina Bayless and/or her physicians of the risks, health hazards, dangers, effects, and/or defects of the drug; . . . r. actively encouraged aggressive sale, etc. and dispensation of OxyContin . . ." (Amended Complaint Par.¶ 66.) The allegations in the complaint further contend that Purdue sold the OxyContin in a defective condition, unreasonably dangerous to users in a number of ways. (Amended complaint ¶ 72.)
These allegations including the failure to warn, misrepresenting and withholding information from the public also contribute to some of the doubt as to when Mrs. Bayless should have known that the drug was the cause of her damages or injury. So even if, the defendants were able to point to a specific date that Mrs. Bayless should have known that she was addicted, the connection to the defendants behavior is a question of fact. The plaintiffs contend it was not until the defendants pled guilty to the federal violations that she knew of the alleged negligent actions, but the defendants argue without specificity that it was a date well before the plea and thus the plaintiffs have filed beyond the applicable three-year statutory limit.
As noted above, there is a genuine issue of fact as to when the plaintiff should have known, not only of her addiction, but that the addiction and injury were caused by negligent actions of the defendants as alleged in the Amended Complaint.
PROXIMATE CAUSE
The second argument of defendants in support of the motion for summary judgment is that the plaintiffs have failed to establish causation as a matter of law. In particular, the defendant contends that the plaintiff cannot show that the defendant owed any duty to the plaintiff or that its alleged misconduct was the proximate cause of her injuries. In response, the plaintiffs contend that such a motion is premature because the parties have not completed their discovery including expert disclosures. This court permitted the defendant to file a motion addressed to the statute of limitations in an attempt to conserve judicial resources, knowing that the parties would be engaged in discovery or additional motion practice if the court did not grant the motion for summary judgment based upon the statute of limitations argument. The court did not include other arguments as to summary judgment at this time because the discovery phase has not been completed. Therefore, the court will not address the argument concerning the issue of proximate cause until the parties have completed the discovery phase of this action. The court denies this argument for summary judgment without prejudice to renew the issue of proximate cause at a later date.
CUTPA CLAIMS
The defendant contends that the claims pursuant to the Connecticut Unfair Trade Practices Act, CUTPA, were filed beyond the three-year limitation time for a violation and are barred by the exclusivity provision of the CPLA. In their memorandum in objection to the summary judgment, the plaintiffs have indicated that they will withdraw the claims pursuant to CUTPA. (Plaintiff's memorandum in opposition at page 24, fn.21.) Therefore, this claim is no longer an issue for this court.
CONCLUSION
The defendant's motion for summary judgment as to the claim that the action is time barred is denied. There is a genuine issue of fact as to when Ms. Bayless discovered or in the exercise of reasonable care should have discovered that Purdue's conduct caused the addiction and the alleged damages that followed.
The court denies, without prejudice to renew, the motion for summary judgment as to the issue of proximate cause at a time after the completion of discovery, including the disclosure and depositions of experts by the parties.