* After examining the briefs and the record, we have concluded that oral argument is

unnecessary. Thus, the appeal is submitted on the briefs and the record. See F ED

. R. A PP

. P.

34(a)(2). 

# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 10, 2009 *

Decided December 11, 2009

Before

WILLIAM J. BAUER, Circuit Judge

TERENCE T. EVANS, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 09

‐ 2865

TERENCE BRUCE RICHARDS,

Plaintiff

‐ Appellant,

v.

ELI LILLY AND COMPANY

, Defendant

‐ Appellee

. Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 08 C 6083

Joan B. Gottschall,

Judge

.



### O R D E R

Terence Richards claims in this lawsuit under the diversity jurisdiction that he was

injured from using Humatrope, a drug manufactured by Eli Lilly and Company. But

Richards had last used the drug in 2004, and in 2005 he sued the company in federal court

for negligence, strict liability, and breach of implied warranty, all premised on his use of

Humatrope “[d]uring and before July 2004.” That complaint was dismissed without NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 09

‐ 2865 Page 2

prejudice because Richards did not allege enough in damages to meet the $ 75,000

threshold for diversity jurisdiction.

The complaint here, which Richards filed in October 2008, is a virtual copy of the

earlier suit except for its allegation of greater damages. Lilly moved to dismiss the suit as

barred by the applicable statutes of limitations. The district court took judicial notice of the

2005 complaint and, applying Illinois law, see Woidtke v. St. Clair County

, 335 F.3d 558, 562

(7th Cir. 2003), concluded that Richards had last taken Humatrope in July 2004 and knew of

his alleged injury by the following year. That put his claims for negligence and strict

liability outside the two

‐ year statute of limitations, see 735 I LL

. C OMP

. S TAT

. 5/13

‐ 202, and

his claim for breach of implied warranty outside the four

‐ year statute of limitations, see 810

I LL

. C OMP

. S TAT

. 5/2

‐ 725. Accordingly, the district court granted the motion and dismissed

the complaint. Richards appeals.

Our review is de novo. Dominguez v. Hendley

, 545 F.3d 585, 588 (7th Cir. 2008).

Richards argues that the limitations periods should have been tolled under the discovery

rule. He contends that, although in 2005 he was able to piece together that he had been

injured by Humatrope, he did not know this with medical certainty and did not gain

sufficient knowledge until he filed the second complaint in 2008.

But medical certainty is not the test. In Illinois the statute of limitations for a

personal

‐ injury claim begins to run “when the plaintiff discovers, or reasonably could

discover” the injury and cause. Hollander v. Brown

, 457 F.3d 688, 692

‐ 93 (7th Cir. 2006). By

2005 Richards believed he had been injured and knew enough to allege that Humatrope

was the cause. This is when the clock began to run on his claims for negligence and strict

liability. See Golla v. Gen. Motors Corp.

, 657 N.E.2d 894, 898

‐ 99 (Ill. 1995); Morietta v. Reese

Constr. Co.

, 808 N.E.2d 1046, 1050

‐ 51 (Ill. App. Ct. 2004). His warranty claim accrued even

earlier; a breach of an implied warranty is complete when a defective product is delivered,

and the statute of limitations begins running at delivery, even if the buyer could not

discover the defect until later. Ridle v. Sprayrite Mfg. Co.

, 555 N.E.2d 1272, 1273 (Ill. App. Ct.

1990); Nelligan v. Tom Chaney Motors, Inc.

, 479 N.E.2d 439, 442 (Ill. App. Ct. 1985).

AFFIRMED.