NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

JAMES HURLY, : CIVIL ACTION NO. 11-2475 (MLC)

 :

Plaintiff, : O P I N I O N

:

v. :

:

PFIZER INC., :

:

Defendant. :

 :

THE PLAINTIFF, James Hurly, commenced this action in state 

court on March 24, 2011, against the defendant, Pfizer Inc. 

(“Pfizer”), raising claims for breach of express warranty and 

various theories of products liability. (Dkt. entry no. 1, Rmv. 

Not., Ex. A., Compl.) Hurly’s factual allegations and legal 

claims stem from his use of a pharmaceutical sold and 

distributed by Pfizer, Lipitor. (Id. at ¶ 5, 32-37.) 

PFIZER now moves for summary judgment pursuant to Federal 

Rule of Civil Procedure (“Rule”) 56 and Local Civil Rule 56.1, 

arguing that the action is barred by the applicable statute of 

limitations, N.J.S.A. § 2A:14-2(a). (Dkt. entry no. 14, Mot.; 

dkt. entry no. 14-1, Pfizer Br.) Hurly opposes the motion and 

argues that the “Discovery Rule”, as applied to the facts of 

this case, tolls the statute of limitations. (Dkt. entry no. 

15, Opp’n Br. (citing and discussing, inter alia, Goodman v. 

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Mead-Johnson & Co., 534 F.2d 566, 570-71 (3d Cir. 1976)).) The 

Court resolves the Motion for Summary Judgment (the “Motion”) 

without oral argument pursuant to Local Civil Rule 78.1(b).

THE COURT shall grant relief pursuant to Rule 56 “if the 

movant shows that there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of law.” 

Fed.R.Civ.P. 56(a). The Court will, however, deny a motion for 

summary judgment if the non-moving party “make[s] a showing 

sufficient to establish the existence of an element essential to 

[its] case, and on which [it] will bear the burden of proof at 

trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see 

also Galli v. N.J. Meadowlands Comm’n, 490 F.3d 265, 270 (3d 

Cir. 2007) (“To prevail on a motion for summary judgment, the 

non-moving party must show specific facts such that a reasonable 

jury could find in that party’s favor, thereby establishing a 

genuine issue of fact for trial.”). When resolving a motion for 

summary judgment, the Court views the evidence in the light most 

favorable to the non-moving party and makes all reasonable 

inferences in that party’s favor. Galli, 490 F.3d at 270; 

Goodman, 534 F.2d at 573 (“The non-movant’s allegations must be 

taken as true and, when those assertions conflict with those of 

the movant, the former must receive the benefit of the doubt.”).

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THE COURT now finds that Hurly’s primary care physician, 

Dr. Waters (“Waters”), prescribed Lipitor in March of 2006 and 

that Hurly thus used Lipitor until September of 2008. (Compl. 

at ¶ 31; dkt. entry no. 14-2, Pfizer Statement of Facts (“SOF”) 

at ¶¶ 10, 14; Response to Pfizer SOF at ¶¶ 10, 14.) Waters 

discontinued this prescription in September of 2008 after Hurly

complained, inter alia, of loss of sensation in his toes. 

(Pfizer SOF at ¶ 11; Response to Pfizer SOF at ¶ 11.) Because 

Hurly’s condition did not improve after Waters discontinued the 

Lipitor prescription -- because Hurly’s condition appeared to 

worsen -- Waters referred Hurly to a neurologist, Dr. Viradia 

(“Viradia”), in February of 2009. (Pfizer SOF at ¶ 16; Response 

to Pfizer SOF at ¶ 16; dkt. entry no. 14-6, Hurly Dep. at 49 

(noting that Waters “expected these symptoms to go away, and 

they got worse”).) Viradia, on March 27, 2009 diagnosed Hurly 

with neuropathy, i.e., nerve damage, and informed Hurly that 

such damage may have been caused by Lipitor. (Dkt. entry no. 

16, Hurly SOF at ¶ 7; dkt. entry no. 19-1, Response to Hurly SOF 

at 39-40; Hurly Dep. at 49-50.)

PFIZER acknowledges that Hurly commenced this action on 

March 24, 2011, within two years of Hurly’s March 27, 2009 

appointment with Viradia. (See Pfizer SOF at ¶ 16.) Pfizer 

argues, however, that Hurly earlier knew or should have known 

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that Lipitor was a possible cause of his injuries; Pfizer argues 

that Hurley knew of should have known of the relationship 

between Lipitor and his injuries between September of 2008, when 

Waters discontinued Hurly’s Lipitor prescription, and February 

of 2009, when Waters referred Hurly to Viradia. (Pfizer Br. at 

12-15.) In support of this argument, Pfizer cites two sources 

of information. Pfizer first cites Waters’s contemporaneous 

notes of a September 28, 2008 appointment with Hurly, in which 

Waters wrote, “Complains of weakness/↓ energy – ? med effect – ? 

Lipitor ? Neuropathy – ? Lipitor – ? Other” and noted that he 

discussed the same with Hurly. (Pfizer SOF at ¶ 13; Response to 

Pfizer SOF at ¶ 13; dkt. entry no. 14-2, Hurly Medical Records 

at Bates-stamped page no. JHURLY-3DCR-00059 (“Medical 

Records”).) Pfizer also cites the following passage from 

Hurly’s deposition:

A. . . . I asked [Viradia], I says, could 

Lipitor have caused this, or did Lipitor cause it, 

something to that. And he said yes. He was very 

definite about it.

Q. And why did you ask him if Lipitor

caused it?

A. Because there was -- it was a

possibility that that could have been a cause, at some 

time in the past in talking -- well, I was taken off 

Lipitor by Dr. Waters. And, you know, I thought that 

he was doing that because that could have possibly 

have been a cause. He’s very thorough. He likes to 

try to find things -- you know, try different things 

to determine – he’s like an investigator. He expected 

these symptoms to go away, and they got worse. So I 

didn’t -- I didn’t think it was the cause until, you 

know, I asked Dr. Viradia.

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Q. And Dr. Waters took you off of Lipitor

in September or October of 2008; is that correct?

A. Yes.

Q. And at that time, he told you that 

Lipitor was possibly the cause?

A. No. He took me off of it. And I kind 

of thought to myself that, you know, he does things 

for a reason, so that -- I got the impression that, 

you know, maybe it could have been -- like he was -- I 

think he was trying things.

(Hurly Dep. at 49-50.)

HURLY denies that he and Waters discussed the possibility 

that Lipitor caused his neuropathy or other injuries. (Hurly 

Dep. at 12, 50, 90, 92.) He instead claims that he did not know 

and argues that he reasonably should not have known that Lipitor 

was a possible cause of his injuries before his March 27, 2009 

appointment with Viradia. (Response to Pfizer SOF at ¶ 14; 

Hurly Dep. at 45.)

THE COURT now views the facts presented by both Pfizer and 

Hurly in the light most favorable to Hurly, the non-moving 

party. See, e.g., Goodman, 534 F.2d at 573-75. The Court finds 

that the parties have presented disputed material facts that 

tend to prove or disprove that Hurly actually knew that Lipitor 

was a possible cause of his injuries before March 24, 2009. 

(Compare Medical Records with Hurly Dep. at 12, 50, 90, 92.)1

 1 Viewed in the light most favorable to Hurly, Hurly’s 

deposition transcript indicates only that Hurly recognized a 

potential causal relationship between Lipitor and his injuries 

during his March 27, 2009 appointment with Viradia. They do not 

demonstrate that Hurly earlier recognized such a relationship.

 

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Although Pfizer argues in its brief that Hurley cannot rely “on 

his own self-serving denial of Dr. Waters’ testimony and 

contemporaneous medical records”, we disagree. A reasonable 

fact finder could afford more credit to Hurly’s testimony than 

to Dr. Waters’s notes. This is not a case where opposing 

parties have told “two different stories, one of which is 

blatantly contradicted by the record, so that no reasonable jury 

could believe it”. But cf. Tindell v. Beard, 351 Fed.Appx. 591, 

595 (3d Cir. 2009) (denying plaintiff’s summary judgment claim 

in light of clearly contradictory video evidence).

THE COURT also finds that we cannot grant summary judgment 

upon evidence -- contradicted or otherwise -- that tends only to 

prove that Hurly should have known that Lipitor was a possible 

cause of his injuries. Such evidence must be held for and 

ultimately considered at trial. See Goodman, 534 F.2d at 575 

(“At best there are inferences which can be drawn as to [the 

injured party’s] state of knowledge. Admittedly they are strong 

inferences, but they are still inferences which can only be 

drawn by the finder of fact, in this case the jury.”). Although 

the New Jersey Superior Court may resolve factual disputes 

concerning application of the statute of limitations and the 

Discovery Rule during resolution of a motion for summary 

judgment, this Court may not. Compare Lopez v. Swyer, 300 A.2d 

563 (N.J. 1973) with Goodman, 534 F.2d at 573 (“the federal 

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policy favoring jury decisions of disputed fact questions must 

prevail over the state practice of allocating to the court the 

decisions as to the time of discovery of the cause of action. 

Thus, if there are any disputed issues of fact, we cannot affirm 

their resolution by the court on the authority of Lopez v. 

Swyer”).

PFIZER argues that this Court may resolve factual disputes 

relating to application of the statute of limitations and the 

Discovery Rule at this stage, notwithstanding the explicit 

rejection of that practice in Goodman. (Pfizer Br. at 16 n.4; 

dkt. entry no. 19, Pfizer Reply Br. at 13-15.) Pfizer argues 

that Goodman “has been superseded by subsequent decisions of the 

New Jersey Supreme Court, as evidenced by decisions of this 

District where the Court has acted as fact finder for purposes 

of applying the discovery rule.” (Pfizer Br. at 16 n.4 

(citations omitted).) 

THE COURT finds Pfizer’s argument unpersuasive. This Court 

is bound by precedent of the United States Court of Appeals for 

the Third Circuit. See, e.g., Venza’s Auto, Inc. v. 

Montagnaro’s, Inc., No. 10-3336, 2011 WL 1098993, at *7 (D.N.J. 

Mar. 21, 2011). This Court, furthermore, “does not have the 

discretion to disregard controlling precedent”. Vujosevic v. 

Rafferty, 844 F.2d 1023, 1030 n.4 (3d Cir. 1988). Because the 

Goodman panel, after weighing the efficacy of resolving factual 

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disputes during the summary judgment stage against the federal 

policy of allowing juries to resolve factual disputes at trial, 

rejected the practice espoused by the New Jersey Supreme Court 

in Lopez and its progeny, we are bound to do the same. This 

Court cannot and will not adopt a practice explicitly rejected 

by the United States Court of Appeals for the Third Circuit.

The Court will enter an appropriate Order.

 s/ Mary L. Cooper .

MARY L. COOPER

United States District Judge

Dated: April 9, 2012

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