           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

                                         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
courts1, has again sought the recourse of the legal system of this State. This time,


       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
Evans v. Genentech, Inc.
C.A. No.: K14C-08-018 RBY
January 23, 2015

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 becomes physically ascertainable.”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.


       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
Evans v. Genentech, Inc.
C.A. No.: K14C-08-018 RBY
January 23, 2015

      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 to Brown. 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



      4
          820 A.2d 362 (Del. 2003).
      5
          Id., at 366.

                                          4
Evans v. Genentech, Inc.
C.A. No.: K14C-08-018 RBY
January 23, 2015

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
     Opinion Distribution
     File


       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”).

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