NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 15-2086 

_____________

DEBRA JOHNSON,

 Appellant

v.

GLAXOSMITHKLINE, LLC; 

GLAXOSMITHKLINE HOLDINGS, INC. 

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(District Court Nos.: 2-11-cv-05782 and 2-12-cv-05455)

District Judge: Honorable Paul S. Diamond

Submitted under Third Circuit LAR 34.1(a)

on November 10, 2015

Before: CHAGARES, SHWARTZ and RENDELL, Circuit Judges

(Opinion filed: January 5, 2016)

O P I N I O N*

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
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RENDELL, Circuit Judge:

Debra Johnson appeals the District Court’s grant of summary judgment to 

GlaxoSmithKline (GSK). In the late 1950s, Johnson’s mother, while pregnant with her, 

had allegedly taken thalidomide distributed by GSK, which caused her to be born with 

birth defects. Johnson did not sue GSK for this alleged negligence until 2012, and the 

District Court granted summary judgment to GSK, holding her claim was barred by the 

one-year limitations period. We will affirm. 

I. Background

In February 1959, Johnson was born in Louisiana with severe birth defects. Since 

Johnson was a young child, her mother, Doris Williams, believed that she knew what had 

caused her daughter’s birth defects. During her pregnancy, she had taken what her doctor 

allegedly told her were experimental pills from Germany for morning sickness. Her 

suspicions were confirmed by her daughter’s doctor, who told her in the 1960s that other 

women who had taken these pills from Germany had given birth to children with injuries 

similar to her daughter’s. 

Ms. Williams kept this information secret from Johnson—that is, until February 

13, 2012, when Ms. Williams was 80 and Johnson was 52. That day, Ms. Williams first 

told Johnson what she believed had caused her birth defects. Until that day, Johnson had 

never spoken with any family, friends, or doctors about what had possibly caused her 

birth defects. In fact, she had never done anything at all to investigate their cause. 
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Two months later, on April 14, Johnson’s son called her to tell her to “google” the 

word “thalidomide” because he thought that she was a “textbook case.” Once she did, she 

saw pictures of birth defects caused by thalidomide, motivating her to further research the 

drug. She also dug out her medical records from her younger years. In the 1970s, she had 

taken these records from the hospital after she learned that they would be destroyed. 

These records described her injuries as “congenital” (present at birth) and “bilateral.” 

(App. 1228–29.) She had not looked at them until this time, prompted by her Internet 

research on thalidomide. She then filled out a law firm’s form that she found on the 

Internet. 

Shortly thereafter, on September 24, 2012, she sued GSK. According to her 

complaint, in the 1950s, GSK had obtained thalidomide from a German company called 

Grunenthal and conducted limited U.S. clinical trials on mice and humans. Ms. Williams 

had allegedly taken thalidomide, resulting in Johnson’s defects. 

GSK moved for summary judgment, arguing that Johnson’s claim was barred by 

Louisiana’s one-year limitations period. Johnson countered that the discovery rule tolled 

the limitations period until no earlier than one year before she filed her suit. The District 

Court disagreed and granted GSK summary judgment. On appeal, she contests this 

ruling. 

II. Discussion1

 

1 Our review of a District Court’s grant of summary judgment is plenary. Although the 

statute-of-limitations is usually an affirmative defense, here, Johnson would bear the 

burden at trial to prove that her claim is timely, because her claim is time barred on the 
4

The District Court ruled that Louisiana law applied (that ruling is not challenged 

on appeal). Under that state’s law, Johnson’s personal injury claim is subject to a oneyear limitations period, which begins “to run from the day injury or damage is sustained.” 

La. Civ. Code Ann. art. 3492. As a result, because Johnson sustained her injuries at birth, 

the one-year statute-of-limitations bars her claim unless she can toll it until at least 

September 24, 2011—one year before she filed her lawsuit. 

Johnson argues that the discovery rule tolled the one-year limitations period until 

at least September 24, 2011. This rule tolls the limitations period until “the date the 

injured party discovers or should have discovered the facts upon which [her] cause of 

action is based.” Davis v. Johnson, 36 So. 3d 439, 441 (La. Ct. App. 2010). But a 

plaintiff’s ignorance of the facts on which her claim is based cannot be “attributable to 

[her] own willfulness or neglect; that is, a plaintiff will be deemed to know what [she] 

could by reasonable diligence have learned.” Corsey v. La. Dep’t Corr., 375 So. 2d 1319, 

1322 (La. 1979). Johnson claims that she neither knew nor reasonably could have known 

that thalidomide had caused her birth defects until at least September 24, 2011. 

The District Court addressed Johnson’s argument that her mother’s knowledge 

should not be imputed to her, and concluded that because Louisiana law does not permit 

retroactive application of its minor tolling statute, her mother’s knowledge would be 

 

face of her complaint. See Wells v. Zadeck, 89 So. 3d 1145, 1149–50 (La. 2012). On 

summary judgment, then, GSK only had to discharge its burden of production, at which 

point the burden shifted to Johnson to show a genuine issue of material fact on her 

argument that her claim was timely. See Celotex Corp. v. Catrett, 477 U.S. 317, 330 

(1986).
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imputed to Johnson. It then proceeded to discuss the discovery rule as applied to the set 

of facts known to Williams, and concluded that her “suspicions obligated Ms. Williams 

to exercise reasonable diligence is ascertaining the cause of her daughter’s injuries.” 

(App 16.) Thus, the statute of limitations ran long before Johnson instituted the instant 

action. The District Court also correctly reasoned that, even if Williams’ knowledge was 

not imputed to Johnson, Johnson never investigated the cause of her injuries, and “even a 

cursory inquiry would have provided Plaintiff with abundant information concerning the 

connection between thalidomide and her birth defects.” (App 18.) The District Court 

properly rejected Johnson’s other arguments, namely contesting the Court’s refusal to 

credit her expert, as well as her argument that her inaction was caused by GSK’s 

fraudulent concealment.

We find the District Court’s analysis to be correct in all respects and will therefore 

affirm its grant of GSK’s motion for summary judgment.