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Eldridge Herold v. Salix Pharmaceuticals

May 7, 2013

ELDRIDGE HEROLD, PLAINTIFF AND APPELLANT,
v.
SALIX PHARMACEUTICALS, INC., DEFENDANT AND RESPONDENT.



(Super. Ct. No. SCV0028300)

The opinion of the court was delivered by: Duarte , J.

Herold v. Salix Pharmaceuticals

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

After using a bowel cleansing/purgative product manufactured by defendant Salix Pharmaceuticals, Inc., plaintiff Eldridge Herold had to be placed on dialysis treatment for kidney failure. In November 2007, one of his physicians told him that the product should not have been prescribed to him and that if he had not taken it he would not need dialysis. Herold did not commence this action against Salix until three years later. The trial court granted summary judgment to Salix on the ground that Herold's claims were time-barred because Herold knew of his injury and of its cause more than two years before he commenced the action.*fn1

As we will explain, the trial court properly granted Salix's motion for summary judgment. Under the delayed discovery rule, the plaintiff must not only know of his injury and its factual cause, but must also suspect the injury is due to someone's wrongdoing to begin the running of the statute of limitations. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110 (Jolly).) Here, the undisputed evidence shows that more than two years before he brought suit against Salix, Herold had sufficient information to cause a reasonable person to suspect his injuries were caused by wrongdoing. Accordingly, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The basic facts are undisputed. On or about July 10, 2007, in anticipation of a colonoscopy, Herold ingested a bowel cleansing/purgative product known as OsmoPrep. In November 2007, one of Herold's physicians, nephrologist Adarsh Bhat, who had been treating Herold for renal problems since 2006, told Herold that he needed to go on dialysis, that the bowel purgative product should not have been prescribed to him, and that if he had not taken the product he would not need to be on dialysis. Herold began receiving dialysis treatment in January 2008.

On November 22, 2010, Herold commenced this action against Salix, the manufacturer of OsmoPrep. As relevant here, Herold asserted causes of action for strict products liability (manufacturing defect and failure to warn), negligence, and negligent misrepresentation.*fn2 Herold alleged that the failure of his kidneys was the result of his use of OsmoPrep. He further alleged that the product was defective and that the defect in the product was not revealed to the public until October 2009, when the FDA first required the product to carry a "black box" warning of the risk of acute phosphate nephropathy, and Salix issued a "Dear Healthcare Provider" letter informing prescribing doctors of the new black box warning.

In its answer to the complaint, Salix raised 36 affirmative defenses, including the bar of the statute of limitations. In October 2011, Salix moved for summary judgment based on the two-year statute of limitations in Code of Civil Procedure section 335.1.*fn3 Salix argued that, based on the facts we have set forth ante, Herold "knew about the potential for wrongdoing as of November 2007, and he did not file his lawsuit until late November 2010." According to Salix, based on Herold's deposition testimony, Herold "by his own admission, had information in November, 2007 that the bowel-prep product he took prior to his colonoscopy that summer caused him an injury, i.e. caused such kidney failure as to require him to begin dialysis. He therefore had until November 2009 to file the instant lawsuit against the manufacturer of the bowel-prep product."

In opposition to the motion, Herold argued that Salix had not met its initial burden on summary judgment of demonstrating the absence of any triable issue of fact because the evidence on which Salix relied was subject to more than one legitimate inference as to what Herold suspected or should have suspected upon receiving the information from Dr. Bhat in November 2007. Herold also argued that even if Salix had met its burden, Herold had raised a triable issue of fact by producing evidence that he did not suspect wrongdoing by the manufacturer of OsmoPrep until May 2010 and that in November Dr. Bhat had not "indicate[d] or impl[ied] there was any wrongdoing on the part of [the manufacturer]."*fn4 Herold also asked for leave to amend his complaint if the court found that he had failed to show the existence of a triable issue of fact.

The trial court granted Salix's motion, concluding that "the statute of limitations began to run in November of 2007" because "[Herold] himself admits to knowledge of his injury and the cause of his injury" as of that date. The court also denied Herold's request to amend his complaint, noting that Herold had "presented no possible amendment that would overcome" the bar of the statute of limitations.

Herold timely appealed from the resulting ...


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