IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR KENT COUNTY

AUGUSTUS HEBREW EVANS, JR., :

: C.A. No: K14C-08-018 RBY

Plaintiff, :

:

v. :

:

GENENTECH, INC., :

:

Defendant. :

Submitted: December 19, 2014

Decided: January 23, 2015

Upon Consideration of Defendant’s 

Motion to Dismiss

GRANTED 

ORDER

Augustus Hebrew Evans, Jr., pro se.

Michael P. Kelly, Esquire, McCarter & English, LLP, Wilmington, Delaware for

Defendant. 

Young, J.
Evans v. Genentech, Inc. 

C.A. No.: K14C-08-018 RBY

January 23, 2015 

1

 Plaintiff is barred from proceeding in forma pauperis; see e.g., In re Evans, 2014 Del.

Ch. LEXIS 157, at *1-2 (Del. Ch. Aug. 14, 2014); Evans v. Graves; 2013 Del. Super. LEXIS

419, at *1-4 (Del. Super. Ct. Sept. 30, 2013). 

2

SUMMARY

Augustus H. Evans (“Plaintiff”) allegedly suffered adverse side-effects after

taking a medication prescribed to him in prison. The medication is produced by

Genentech, Inc. (“Defendant”). Plaintiff decided to take legal action against

Defendant, more than three years after the known presence of the alleged side-effects.

Unfortunately, for Plaintiff, this decision was a tardy one. 10 Del. C. § 8119 requires

that personal injury actions be filed within two years of the alleged tort. Plaintiff’s

claim is, thus, time-barred. The Court GRANTS Defendant’s Motion to Dismiss.

FACTS AND PROCEDURES

In February 2007, Plaintiff, an inmate at James T. Vaughn Correctional Center

in Smyrna, Delaware, was prescribed Naprosyn by his prison doctor. Shortly

thereafter, Plaintiff claims to have started to experience extreme headaches. In June

2014, more than seven years later, after allegedly hearing a radio advertisement issued

by the Food and Drug Administration (“FDA”), that Naprosyn may cause headaches,

Plaintiff determined to file suit against its manufacturer, the Defendant. On August

15, 2014, Plaintiff initiated the present action, filing a Complaint. Defendant moves

to dismiss.

DISCUSSION

Plaintiff, a prolific litigant who has gained notoriety among the Delaware

courts

1

, has again sought the recourse of the legal system of this State. This time,
Evans v. Genentech, Inc. 

C.A. No.: K14C-08-018 RBY

January 23, 2015 

2

 Including, but not exhaustively: (1) Super. Ct. Civ. R. 12(b)(6) for failure to state a

claim; (2) 10 Del. C. § 8119 as untimely; and (3) Super Ct. Civ. R. 9(b) requiring specificity in

negligence and fraud suits. 

3 Greco v. Univ. of Delaware, 619 A.2d 900, 905-906 (Del. 1993). 

3

Plaintiff files suit against a pharmaceutical company that produced a medication,

prescribed to him by his prison physician. Plaintiff alleges that, after taking

Defendant’s medication, Naprosyn, he developed headaches. From this purported

injury stem six claims: 1) negligent failure to warn; 2) negligent misrepresentation;

3) breach of implied warranty of merchantability; 4) breach of implied warranty of

fitness for a particular purpose; 5) breach of express warranty; and 6) fraud.

Defendant moves to dismiss all six of Plaintiff’s claims under a number of

theories.2 Sometimes it is the most simple and largely procedural motion that resolves

the issue. Such is the case here. Pursuant to 10 Del. C. § 8119, claims for personal

injuries are subject to a two year statute of limitations. The Court finds that Plaintiff

was late in bringing this action. As a result Plaintiff’s suit is now time barred. 

The two year statute of limitations imposed by 10 Del. C. § 8119, involves the

issue of when the clock begins to tick. The limitations period begins to run “when a

harmful effect first manifests itself and becomesphysicallyascertainable.”3 Defendant

argues, based on Plaintiff’s own allegations in his Complaint, that Plaintiff’s ailment

first appeared in February 2007, self-described as “severe headaches.” Defendant

avers this is the physical manifestation called for by the statute. As such, Plaintiff had

until February 2009 to file this action. Plaintiff failed to commence any action until

August 15, 2014, more than seven (7) years later. 
Evans v. Genentech, Inc. 

C.A. No.: K14C-08-018 RBY

January 23, 2015 

4

 820 A.2d 362 (Del. 2003). 

5

Id., at 366. 

4

In response to Defendant’s assertion that his lawsuit is time barred, Plaintiff

cites to the Delaware Supreme Court case Brown v. E.I. duPont de Nemours & Co.,

Inc.4 In Brown, the Supreme Court recognized that although a Plaintiff may begin

exhibiting physical symptoms of an injury, she may not be able, at the time, to discern

their cause. In such situations, the statute of limitations period found in § 8119, is

extended to when the Plaintiff is on notice of the potential tortfeasor. By analogy,

Plaintiff argues that he was not aware that Naprosyn could cause his symptoms until

June 2014, when he allegedly listened to a radio announcement issued by the FDA.

The Court is unpersuaded by Plaintiff’s reference toBrown. As a starting point,

the holding of Brown arose from the fact that the Plaintiffs in that case suffered from

an illness that “no one in the medical community” recognized as potentially stemming

from the offending product.5 This is what the Court understands the Supreme Court

to have meant by requiring that a Plaintiff not only have physical manifestations, but

also be on notice. More so than the actual Plaintiff, it is medical science that must

recognize the connection between product and malady. In the case at bar, Plaintiff

makes no assertion that the link between headaches and Naprosyn was unknown at

the time he began to feel ill. The Plaintiff, himself, may have been unaware of the

possible connection, but this is not a circumstance affected by the holding of Brown.

In fact, it appears that the medical community certainly was on notice of headaches

potentially resulting from use of the medication, as is apparent from the package
Evans v. Genentech, Inc. 

C.A. No.: K14C-08-018 RBY

January 23, 2015 

6

 The Defendants point the Court to the FDA website, wherein the insert for Naprosyn is

available for viewing at: http://www.accessdata.fda.gov/drugsatfda_docs/label

/2006/020067s010,018965s013,018164s055,%20017581s105lbl.pdf. The Court takes judicial

notice of the insert. In re General Motors S’holder Litig., 897 A.2d 162, 169 (Del. 2006)(on

motion to dismiss, Court may take judicial notice of “matters that are not subject to reasonable

dispute”). 

5

insert for Naprosyn, available as early as 2006.6 The Brown scenario is simply

inapposite to the one faced by this Court.

The Court finds that Plaintiff was not only experiencing physical

manifestations of his malady in 2007, but also was on notice that Naprosyn was the

potential cause. 10 Del. C. § 8119 governs the timely institution of personal injury

actions. The time to bring this lawsuit began to run in February of 2007. By

instituting this action in 2014, Plaintiff missed the deadline by several years.

Plaintiff’s action is time barred by the applicable statute of limitations.

CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss is GRANTED. 

IT IS SO ORDERED.

 /s/ Robert B. Young 

 J.

RBY/lmc

oc: Prothonotary

cc: Counsel 

Mr. Evans, JTVCC

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