    11-3377-cv
    Sistrunk v. Eli Lilly


                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

            At a stated term of the United States Court of Appeals for the Second Circuit, held at the
    Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
    25th day of January, two thousand thirteen.

    Present:
                AMALYA L. KEARSE,
                ROBERT A. KATZMANN,
                RAYMOND J. LOHIER, JR.,
                      Circuit Judges.
    _____________________________________

    REGINALD SISTRUNK,

                                  Plaintiff-Appellant,
                            v.                                                No. 11-3377-cv

    ELI LILLY AND COMPANY,

                      Defendant-Appellee.
    _____________________________________


    For Plaintiff-Appellant:                             Reginald Sistrunk, pro se, Auburn, AL

    For Defendant-Appellee:                              Adam B. Michaels, New York, NY, Nina M.
                                                         Gussack, and KaSandra N. Rogiers, Philadelphia,
                                                         PA, Pepper Hamilton LLP
       Appeal from a judgment of the United States District Court for the Eastern District of

New York (Weinstein, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Reginald Sistrunk, proceeding pro se, appeals the district court’s

order granting summary judgment for Defendant-Appellee, on his breach of warranty claim in

connection with his injuries resulting from taking the drug Zyprexa. We assume the parties’

familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

       Plaintiff Sistrunk contends that the district court erred in dismissing his breach of

warranty claim as time-barred, arguing that the relevant statute of limitations should have been

tolled because he was insane when his claim accrued. Under Alabama law, the statute of

limitations is tolled where a person is “insane” at “the time the right [to sue] accrues.” See Ala.

Code 1975 § 6-2-8. The Alabama Supreme Court, interpreting this statute, has suggested that

insanity “signifies any derangement of the mind that deprives it of the power to reason or will

intelligently.” Travis v. Ziter, 681 So. 2d 1348, 1352 (Ala. 1996) (internal quotation marks

omitted). The plaintiff bears the burden to show that the statute of limitations should be tolled.

See Love v. Wyeth, 569 F. Supp. 2d 1228, 1231-32 (N.D. Ala. 2008).

       At the time Sistrunk’s cause of action accrued in 2001, he was institutionalized because

of his mental illness. He was released from the mental hospital to a group home in July 2002.

Sistrunk sought legal counsel for his Zyprexa claims in August 2004, which shows that he was

competent enough at that time to protect his legal rights. For the time period between July 2002

and August 2004, however, Sistrunk has offered no evidence about his competency other than

the fact that he was released to a group home for some time.


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       Pursuant to Alabama’s tolling statute, Sistrunk had three years after the termination of his

disability to bring his suit. See Ala. Code 1975 § 6-2-8. Based on the various tolling agreements

entered into by class counsel in this case on behalf of the Zyprexa class, Sistrunk’s action, filed

on May 2, 2011, would fall within this three-year limitation and is timely only if he could show

that he was insane at least until November 2, 2003. Even assuming arguendo that Sistrunk’s

institutionalization satisfied Alabama’s high bar for tolling on the basis of insanity, but see

Travis, 681 So. 2d 1348 (rejecting expansive definition of insanity), he has offered no evidence

showing that his insanity continued for another sixteen months after he was released to a group

home (ten months before he spoke to an attorney about his case). See Love, 569 F. Supp. 2d at

1232 (“To avail himself of § 6-2-8(a), [plaintiff] must offer proof not only that he was ‘insane’ at

the moment of accrual, but when his ‘insanity’ terminated, or, if he is still insane, that such is the

fact. He has not done any of this.”). Because plaintiff has not carried his burden of showing that

the running of the statute of limitations should have been tolled until at least November 21, 2003,

his breach of warranty claim is untimely.

       Accordingly, the judgment of the district court is AFFIRMED.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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