IN THE SUP ERIOR COURT OF THE STATE OF DE LAWARE IN AND FOR KENT COUNTY
AUGUSTUS HEBREW EVANS, JR., : : C.A. No: K14C-08-018 RBY Plaintiff, : : v. : : GENENTECH, INC., : : Defenda nt. :

Submitted: Decem ber 19, 2014 Decided : January 23 , 2015
Upon Con sideration of Defe ndant’s Motion to D ismiss GRANTED

ORDER Augustu s Hebrew Evans, J r., pro se . Michael P . Kelly , Esquire, McCa rter & E nglish, L LP, Wilming

ton, Del aware for Defendant.

Young, J.Evans v. Genentech, Inc.

C.A. No.: K14C-08-018 RBY January 23, 2015

1 Plai ntiff is bar red fro m proc eedin g in forma pauperis; see e.g., In re Evans , 2014 Del

. Ch. LE XIS 15 7, at *1-2(Del. Ch. Aug. 14 , 2014); Evans v. Graves ; 2 013 Del . S upe r. LE XIS 419, at *1-4 (Del. Super. Ct. Sept. 30, 2013). 2 SUMMARY A ugust us H. Eva

ns (“ Plaintiff

”) allege dly suf

fered ad verse side -effec ts after taking a medication prescri bed to him in prison. The m edication is produced by Genente ch, Inc. (“

Defenda nt ”). Pla intiff dec ided to take legal ac tion against Defenda nt, more than three

year s after t

he known presence of

the allege d side-ef

fects. Unfo rtu nat ely, for Plaintiff, t his decision

was a ta rdy one . 10 Del. C. § 8119 requires that perso nal in

jury acti ons b e file d with in two years of the al leged tort. Plain tiff’s claim is, thus, time -barred . The C ourt GRANTS Defenda nt’s Moti on to Dism

iss. FACTS AND PROCEDUR ES In February

2007, Plaintiff, an

inmate at Jam es T. Vaughn Correctional Center in Smy rna, De laware , was prescribed Naprosy n by his p rison doctor . Shortly thereafter, Plaintif

f claim s to have started

to experience extre me he adaches. In June 2014, more

than s even year s later, after allegedly hea ring a radio advertisement issued by the Food an d Drug Ad

minist ration (“ FDA”) , that N aprosy

n may cause headaches, Plaintiff determ ined to file

suit agains t its manufacturer, the Defendant. On August 15, 2014, Plaintiff

initiated the present action, filing a Complaint. Defendant m oves to dism iss. DISCUSSION Plaintiff, a prolifi c lit igan t who has gained notoriety among the Delaw are court s 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. Ci v. R. 9(b)requirin

g spec ificity

in negligence and fr

aud suits.

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

3 Plaintiff files su it a gainst a pha

rmac eutical c ompany

that produc ed a m edication, prescribed

to him by his pr

is on physic ian. Pla

intiff al leges that , after

taking Defend ant’s medication, Naprosy n, he developed head a ches. From this purported injury stem six claim s: 1) negligent failure to warn; 2) negligen t misr epresent ation; 3) breach of

impli ed warr

anty of mer chantabili ty; 4) breach of impli ed warr

anty of fitness fo r a parti cular pur pose; 5) breach of e xpress wa rranty ; and 6) fr

aud. Defenda ntmoves to dismiss all six of Plaintiff’ s claims under a n um ber of theories. 2 Some times it

is the most sim

ple and largely procedural motion that resolves the issue. Such is the cas e here. Pursuant to 10 Del. C. § 8119, claims for personal injuries are subject to a two yea r statute of limitations. The Court finds that Plaintiff was late in b ringing this acti on. As a resul t Plainti ff’s suit is n ow time barred. The two y ear stat

ute of limit ati ons impo sed by 10 Del. C. § 8119, involve s the issue of when th e clock be gins to tick. The lim itations pe riod begins to run “ when a har mful effect first manifests i tself and becomes physic ally ascertaina ble.” 3 Defendant argues, based on Pl aintiff’ s own alle gations in his Compl aint, that Plaintif f’s ail ment fi rst appeare d in Februa

ry 2007 , self- describe d as “ severe he adaches. ” Defe ndant

avers this is the ph

ysical mani festation

called f or by thestatute. As such, Plaintiff had until Februar

y 2009 to file this a ction. Pl aintiff f ailed to co mm ence any

action until August 15 , 2014, more than seven (7) years l ater.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 t o Defend ant’s a ssertion th at his law suit is time barred , Plaintiff cites to the Delaware Supreme Court case Brown v. E.I. duPont de Ne mours & Co., Inc. 4 In Brown , the Supr

eme Court rec ognized tha t althoug h a Plainti ff m ay beg in exhibiting

physical sym

ptoms of an injury, she may not be able, at the time, to discern their cause. I n such situat

ions, the s tatute of

limit ations period fou

nd in § 8119, i s extended to when the

Plaintif f is on notic e of the pot entia l tor tfea sor . By an alo gy, Plaintiff argues that he was not aware that Naprosy n could caus e his sy

mptom s until June 2014, whe n he allege dly list ened to a radio a nnouncement issued by

the FDA. The Court is unpersuaded by Pla intiff’ s reference to Brown . As a st arting point , the holding of Brown arose from the fact that the Plaintiffs in that case suffered from

an illness tha

t “no one in the medic al com munity ” recogni zed as potentially stem ming from the offe nding product. 5 This is what the Court understands the Supreme Court to have m eant by

requiring that a Pla intiff not o nly hav e physic al ma nifestati ons, but also be on notice . More so than the ac tual Plain tiff, it i s medi cal scien ce that m ust recognize the connection between product and malady. In the case at bar, Plaintiff make s no assert

ion that the link between headaches and Naprosyn was unknown at the timehe began to feel i ll. The Plainti ff, himself , ma y have been unaw are of th e possible connection , but this is not a circumstance affec ted by the holding of Brown

. In fact, i t appears t

hat the medical co mm

unity c ertainly

was on notice of headaches potentially

resulting from use of t

he m edication, as is appar ent from the packageEvans v. Genentech, Inc.

C.A. No.: K14C-08-018 RBY January 23, 2015

6 The Def endants p oint the Cou

rt to the F DA websi

te, wher ein the in sert for

Naprosy n is available for viewing at: http://www.accessda ta.fda.gov/drugsatfda_doc s/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 dis miss, Court

may take judi cial notic e of “ma tters tha t are not subject to

reasona ble dispute”). 5 ins ert for Napr

osyn, available

as early as 2006. 6 The Brown scenario is sim ply inapposite to the one faced by this Court. The Court finds that Plaintiff was not only experi e ncing physical manif estations of his malady in 2007, but also was on notice that Napr osyn was the potential cause. 10 D el. C. § 8119 governs the timely institution of personal injury actions. Th e tim e to br ing this lawsuit began to run in February of 2007. By ins titutingthis action in 2014, Plaintiff missed the deadline by severa l years

. Plaintiff ’s acti on is tim e barred

by the applicable

statute of limit ations. CONCLUSION For the f oregoing re asons, D efendant’ s Motion to D ismiss is GRANTED

. IT IS SO ORDERED

.
/s/ Rober t B. Youn g J.
RBY /l mc oc: Prothonotary cc: Counsel Mr. Evans, JTVCC Opinion Di stribution File