United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-3129

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Maud Ledhagen Gazal, in her *

capacity as the legal personal *

representative of the Estate of *

Nabil Nasri Gazal, *

* Appeal from the United States

Appellant, * District Court for the

* District of Minnesota.

v. *

Boehringer Ingelheim Pharmaceuticals, *

Inc.; Pfizer, Inc.; Pharmacia *

Corporation; Pharmacia &Upjohn, LLC, *

*

Appellees. *

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Submitted: May 10, 2011

Filed: July 28, 2011

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Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.

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WOLLMAN, Circuit Judge.

Nabil Gazalfiled tort claims and a breach of warranty claimagainst Boehringer

IngelheimPharmaceuticals, Inc.; Pfizer, Inc.; Pharmacia Corporation; and Pharmacia

& Upjohn Company, LLC (pharmaceutical companies). The district court granted

1

The Honorable James M. Rosenbaum, United States District Judge for the

1

District of Minnesota, now retired. 
summary judgment to the defendants, see In re Mirapex Products LiabilityLitigation,

735 F. Supp. 2d 1113 (D. Minn. 2010), whereupon Gazal filed this appeal. Following

Gazal’s death, his widow, Maud Ledhagen Gazal, was appointed as the legal

representative of his estate to prosecute the appeal. We affirm.

I.

Gazal lived in Australia, where he owned and operated Gazcorp, a successful

industrial and retail development corporation, until his death in 2010. In 1999, he

began to experience health problems and his doctors suspected that he had

Parkinson’s disease. Gazal owned property in Texas and decided to seek further

treatment at the Baylor College of Medicine’s Parkinson’s Disease Center and

Movement Disorders Clinic (Baylor) in Houston. In 2002, doctors at Baylor

diagnosed Gazal with Parkinson’s disease and prescribed Mirapex as part of his

treatment. The drug reduced Gazal’s symptoms but induced numerous side effects,

including anxiety attacks, depression, insomnia, aggression, and claustrophobia. 

Shortly after beginning his treatment, Gazal began to gamble much more than he had

previously, and his losses increased ten-fold. He first mentioned his increased

gambling in February 2005 and first reported it to his doctor in April 2005. 

In July 2005, the Mayo Clinic published a study suggesting a link between

Mirapex and compulsive gambling (the Dodd/Mayo study). And, in November 2005

while Gazal was in Australia, one of his doctors suspected that Mirapex might be

responsible for his gambling problems. Gazal was hospitalized for two weeks and

ceased taking the drug, but renewed use again once he was released. Gazal admitted

that at some point in late 2005, he became aware that Mirapex was linked to, and

might cause, compulsive gambling. 

Gazal wrote to two casinos in Australia in May 2006, requesting that they

refuse his business. He asked the same of several acquaintances with whom he had

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played cards. He continued to gamble, however, and in September 2007, he returned

to Baylor and reported that he had lost millions of dollars and was experiencing

family problems. His doctors at Baylor renewed his Mirapex prescription, and he

continued to gamble. 

The first large-scale systematic study of Mirapex and impulse-control

disorders, called the Dominion Study, was published in June 2008. It concluded that

patientstaking Mirapex had a risk of developing a gambling disorder and that the risk

was too great to be explained by chance or other causes. A few months after the

Dominion Study was published, Gazal checked into a hospital to try again to wean

himself off Mirapex, but he resumed taking it once he left the hospital. In May 2009,

he succeeded in ceasing his use of the drug. A month later, Gazal filed suit against

the pharmaceutical companies in Texas state court. 

Gazal alleged a breach of warranty claim, together with a number of tort

claims, all of which faulted the pharmaceutical companiesfor failing to warn himthat

taking Mirapex could lead to compulsive gambling. Altogether he sought more than

$20 million in damages. The pharmaceutical companies removed the case to federal

court. In March 2010, the Judicial Panel on Multidistrict Litigation transferred it to

Minnesota as part of the Mirapex Products Liability Multidistrict Litigation.

The pharmaceutical companies moved for summary judgment, contending that

Gazal’s claims had accrued more than two years before he filed suit and were

therefore time-barred. Gazal rejoined that his claims had not accrued until the

Dominion Study was published in 2008 and that, in the alternative, the two-year

statute of limitations should be tolled under the continuing tort doctrine, the “open

courts” provision of the Texas Constitution, the ripeness doctrine, or mental

disability. 

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The district court found that Gazal became aware of his gambling problem no

later than 2003 and of the possible link between Mirapex and pathological gambling

no later than 2005. It rejected Gazal’s accrual theory and the various tolling

arguments he set forth, concluded that his claims were time-barred, and granted

summary judgment to the pharmaceutical companies on the tort claims. It also

dismissed the breach of warranty claim after concluding that Gazal had not given the

pharmaceutical companies the required notice before filing the claim.

II.

We review de novo the district court’s grant of summary judgment. South

Dakota v. U.S. Dep’t of Interior, 423 F.3d 790, 794 (8th Cir. 2005). Summary

judgment is appropriate when the evidence, viewed in the light most favorable to the

nonmoving party, presents no genuine issue of material fact. Fed. R. Civ. P. 56. A

dispute is genuine if the evidence is such that it could cause a reasonable jury to

return a verdict for either party; a fact is material if its resolution affects the outcome

of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252 (1986).

A. Statute of Limitations

Because this suit wasremoved to federal court under diversity jurisdiction, we

apply the substantive law of Texas, including its statutes of limitation. See Walker

v. Armco Steel Corp., 446 U.S. 740 (1980). The parties agree that in Texas, a

products liability suit must be commenced within two years after the cause of action

accrues, see Tex. Civ. Prac. & Rem. Code Ann. § 16.003, but dispute when this

particular cause of action accrued. 

Appellant maintains that Gazal suffered no legal injury and that no cause of

action accrued until a causal link between Mirapex and compulsive behavior was

substantiated in the Dominion Study in June 2008. The pharmaceutical companies

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counter that the claimaccrued in 2005 when the allegedly wrongful acts occurred and

the alleged injuries resulted. 

Appellant contends that the district court misconceived the nature of Gazal’s

argument when it took him to be invoking a version of the discovery rule, which

applies when the underlying injury is latent or “inherently undiscoverable.” Childs

v. Haussecker, 974 S.W.2d 31, 36 (Tex. 1998). The discovery rule defers accrual

until the plaintiff discovers the injury and is aware that it was likely caused by the

wrongful acts of another. Id. at 40. Appellant maintains that Gazal’s theory is one

of legal injury, not discovery, under which a plaintiff must have suffered a legally

cognizable injury for a cause of action to have accrued. 

Childs addressed statutes of limitation in latent occupational disease cases. Id.

at 43. It mentioned objective verification of causation as a factor in determining the

date of accrual, but in no way endorsed the proposition that such verification must

occur in a specific form such as epidemiological studies. Moreover, the court

specifically observed that “the accrual of a cause of action is not dependent on a

confirmed medical diagnosis” or other such verification. Id. at 42. Rather, for a

claim to accrue, a “plaintiff’s symptoms must manifest themselves to a degree or for

a duration that would put a reasonable person on notice that he or she suffers from

some injury,” such that a reasonable person in plaintiff’s position have known that

the injury was caused by another’s wrongful acts. Id. at 40. Like the district court,

we do not read Childs as requiring specific epidemiological evidence before a claim

of this type accrues.

Appellant asserts that an injury is not legally cognizable until and unless its

cause can be ascertained. In other words, “a cause of action does not accrue absent

evidence of causal connection.” Appellant’s Br. 20. In a case of this nature,

appellant argues, the Texas Supreme Court requires that, to be scientifically reliable,

causation evidence must be based on a properly designed epidemiological study and

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indicate that the relative risk of disease or injury for those exposed to the drug is more

than double that of a control population. Merrell Dow Pharmaceuticals, Inc. v.

Havner, 953 S.W.2d 706 (Tex. 1997). Thus, the argument runs, Gazal’s claim would

have failed as a matter of law until the 2008 publication of the Dominion Study,

which met the proof of causation standard allegedly required by Havner. 

This argument fails, however, for we agree with the district court that objective

verification of causation, in the form of an epidemiological study that meets the

Havner standard, is not a predicate that must be established for a claim to accrue. 

Havner considered what weight ought to be given to particular epidemiological

studies in determining whether the plaintiffs’ causation evidence was legally

sufficient under the “more likely than not” burden of proof. Id. at 714-24. It did not

speak to the minimum notice a plaintiff must have before a particular claim accrues

and does not bear on the particular issue before us. 

Based on the undisputed facts before us, we conclude that Gazal was on notice

of his injury and of its causal connection to his Mirapex prescription no later than

2005. He had access to information about the cause of his increased gambling,

including his own observations and insight gleaned from talking with his doctors. 

His actions also reflect an awareness of the underlying cause behind his compulsive

behaviors. In 2005, he reported his compulsive gambling to a doctor and linked it to

Mirapex. Later that year, he was hospitalized while attempting to cease his use of

Mirapex. In letters he wrote to casinos in May 2006, he requested that they not

accept his business and explained that his lack of control arose as a negative side

effect of his medication. In light of this evidence, we agree with the district court that

the claim accrued more than two years before Gazal brought suit and thus was timebarred.

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B. Tolling

Appellant contends that the district court erred by not tolling the statute of

limitations based on the continuing tort doctrine, the “open courts” provision in the

Texas Constitution, the ripeness doctrine, or Gazal’s alleged mental disability. 

1. The Continuing Tort Doctrine

“A cause of action for a continuing tort does not accrue until the defendant’s

act ceases.” Upjohn Co. v. Freeman, 885 S.W.2d 538, 542 (Tex. App. 1994). Yet,

as the district court made clear in its discussion of this case, the doctrine applies only

so long as the plaintiff is unaware of the effect the drug is having on him. Id. at 542;

see also Allgood v. R.J. Reynolds Tobacco Co., 80 F.3d 168, 170 (5th Cir. 1996)

(“Texas has limited its application to cases where the causal relation between action

and injury remained unknown to the plaintiff.”) (citing Upjohn Co.). Because Gazal

became aware of the effect of Mirapex more than two years before he filed suit, the

continuing tort doctrine does not save his claim. 

2. The “Open Courts” Provision

Appellant maintains that denying Gazal the opportunity to pursue his claim

violated a provision of the Texas Constitution stating that “[a]ll courts shall be open”

and that every person “shall have a remedy by due course of law.” Tex. Const. art. 1,

§ 13. According to appellant, the provision is intended to invalidate statutes of

limitation that cut off a person’s right to sue before the person has a reasonable

opportunity to discover the wrong and bring suit. See Nelson v. Krusen, 678 S.W.2d

918, 923 (Tex. 1984). 

We conclude that the open courts provision does not operate to save Gazal’s

claim, for the doctrine is designed to protect a plaintiff who has yet to discover or

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become aware of his putative injury. See Martz v. Weyerhauser Co., 965 S.W.2d

584, 589 (Tex. App. 1998) (“The ‘open courts’ provision operates to toll the statute

of limitations in situations in which it is impossible to discover the injury and timely

file suit during the limitations period.”). Gazal knew that he had been injured, and

whatever difficulty he faced in proving his theory cannot negate this fact. 

3. The Ripeness Doctrine

Appellant argues that the district court erred in concluding that the

manifestation of a severe gambling problem in 2006 rendered Gazal’s claims ripe at

that time. From the evidence that we have recounted above, we conclude that the

district court did not err in determining that the facts were sufficiently developed to

establish a concrete injury in 2006.

4. Mental Stability

Appellant contends that the district court erred in finding no genuine issue of

fact exists regarding whether Gazal was of “unsound mind” under § 16.0001 of the

Texas Civil Practice and Remedies Code. Persons of unsound mind are those “who

are mentally incompetent to care for themselves or manage their property and

financial affairs.” Hargraves v. Armco Foods, Inc., 894 S.W.2d 546, 547 (Tex. App.

1995). The tolling provision on which appellant relies is intended to provide such

persons with “access to the courts” and to account for their “inability to participate

in, control, or even understand the progression and disposition oftheir lawsuit.” Ruiz

v. Conoco, Inc., 868 S.W.2d 752, 755 (Tex. 1993). 

To extend the statute of limitations on this basis, a plaintiff must produce either

1) specific evidence that would enable the court to find that he did not have the

mental capacity to pursue litigation; or 2) a fact-based expert opinion to that effect. 

See Chavez v. Davila, 143 S.W.3d 151, 156 (Tex. App. 2004). The district court

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found that the proffered evidence on this issue—affidavits from Gazal, his wife, his

son, and his treating physician—was insufficient to allow a reasonable jury to

conclude that Gazal lacked the requisitemental capacity during the limitations period.

We agree.

The affidavits in question portray an individual whose illness and erratic

behavior caused him pain and created emotional turmoil among his friends and

family. In the words of his treating physician, Gazal was “completely unable to

manage his compulsive behavior,” “verbally abusive and unreasonable toward his

wife and children,” and overcome by “anxiety, depression, gambling addiction,

abnormal addiction and other generalized behavioral problems.” His son described

similar behavioral problems and stated that his father “didn’t even seem like the same

person.” His wife stated that it “seemed as if [he] had lost his mind.” 

On the other hand, Gazal managed to run and manage a very profitable

company, to seek treatment first for his disease and then for the side effects he

perceived were caused by Mirapex, and to reach out to casinos and friends to try to

prevent further gambling losses. At no point did any of his doctors question his

competence to care for himself and manage his affairs, nor did anyone take steps to

have him declared legally incompetent. Without in any manner attempting to

minimize the difficulties that Gazal faced in the last years of his life or the pain that

his family experienced as a result, we conclude that the affidavits did not raise a

genuine issue of fact asto whether Gazal’s behavioral problems and side effects were

so severe as to render him legally incompetent. Consequently, the tolling provisions

of § 16.0001 are unavailable. 

C. Warranty Claim

Finally, appellant claims that the district court erred in concluding that Gazal

had not satisfied the requirement that purchasers give notice of a breach of warranty

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claim prior to filing suit. Tex. Bus. and Com. Code Ann. § 2.607(c)(1). At issue is

whether Gazal, as a subpurchaser, was required to give notice to the manufacturer as

a precondition of bringing suit. 

The district court acknowledged that a split of authority exists on this issue

within the Texas intermediate appellate courts. It concluded that the Texas Supreme

Court, if confronted with the question, would adopt the majority position and require

that a subpurchaser give the seller prior notice of his breach of warranty claim. We

agree with the district court’s prediction and thus conclude that it did not err in

granting summary judgment to the defendants on that claim. 

III.

The judgment is affirmed.

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