                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT



                                      No. 15-2086
                                     _____________


                                   DEBRA JOHNSON,
                                               Appellant
                                          v.

                           GLAXOSMITHKLINE, LLC;
                       GLAXOSMITHKLINE HOLDINGS, INC.
                               _____________



                    On Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                (District Court Nos.: 2-11-cv-05782 and 2-12-cv-05455)
                       District Judge: Honorable Paul S. Diamond



                       Submitted under Third Circuit LAR 34.1(a)
                                on November 10, 2015


           Before: CHAGARES, SHWARTZ and RENDELL, Circuit Judges


                             (Opinion filed: January 5, 2016)


                                      O P I N I O N*


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
RENDELL, Circuit Judge:

       Debra Johnson appeals the District Court’s grant of summary judgment to

GlaxoSmithKline (GSK). In the late 1950s, Johnson’s mother, while pregnant with her,

had allegedly taken thalidomide distributed by GSK, which caused her to be born with

birth defects. Johnson did not sue GSK for this alleged negligence until 2012, and the

District Court granted summary judgment to GSK, holding her claim was barred by the

one-year limitations period. We will affirm.

I.     Background

       In February 1959, Johnson was born in Louisiana with severe birth defects. Since

Johnson was a young child, her mother, Doris Williams, believed that she knew what had

caused her daughter’s birth defects. During her pregnancy, she had taken what her doctor

allegedly told her were experimental pills from Germany for morning sickness. Her

suspicions were confirmed by her daughter’s doctor, who told her in the 1960s that other

women who had taken these pills from Germany had given birth to children with injuries

similar to her daughter’s.

       Ms. Williams kept this information secret from Johnson—that is, until February

13, 2012, when Ms. Williams was 80 and Johnson was 52. That day, Ms. Williams first

told Johnson what she believed had caused her birth defects. Until that day, Johnson had

never spoken with any family, friends, or doctors about what had possibly caused her

birth defects. In fact, she had never done anything at all to investigate their cause.



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          Two months later, on April 14, Johnson’s son called her to tell her to “google” the

word “thalidomide” because he thought that she was a “textbook case.” Once she did, she

saw pictures of birth defects caused by thalidomide, motivating her to further research the

drug. She also dug out her medical records from her younger years. In the 1970s, she had

taken these records from the hospital after she learned that they would be destroyed.

These records described her injuries as “congenital” (present at birth) and “bilateral.”

(App. 1228–29.) She had not looked at them until this time, prompted by her Internet

research on thalidomide. She then filled out a law firm’s form that she found on the

Internet.

          Shortly thereafter, on September 24, 2012, she sued GSK. According to her

complaint, in the 1950s, GSK had obtained thalidomide from a German company called

Grunenthal and conducted limited U.S. clinical trials on mice and humans. Ms. Williams

had allegedly taken thalidomide, resulting in Johnson’s defects.

          GSK moved for summary judgment, arguing that Johnson’s claim was barred by

Louisiana’s one-year limitations period. Johnson countered that the discovery rule tolled

the limitations period until no earlier than one year before she filed her suit. The District

Court disagreed and granted GSK summary judgment. On appeal, she contests this

ruling.



II.       Discussion1

1
  Our review of a District Court’s grant of summary judgment is plenary. Although the
statute-of-limitations is usually an affirmative defense, here, Johnson would bear the
burden at trial to prove that her claim is timely, because her claim is time barred on the
                                               3
       The District Court ruled that Louisiana law applied (that ruling is not challenged

on appeal). Under that state’s law, Johnson’s personal injury claim is subject to a one-

year limitations period, which begins “to run from the day injury or damage is sustained.”

La. Civ. Code Ann. art. 3492. As a result, because Johnson sustained her injuries at birth,

the one-year statute-of-limitations bars her claim unless she can toll it until at least

September 24, 2011—one year before she filed her lawsuit.

       Johnson argues that the discovery rule tolled the one-year limitations period until

at least September 24, 2011. This rule tolls the limitations period until “the date the

injured party discovers or should have discovered the facts upon which [her] cause of

action is based.” Davis v. Johnson, 36 So. 3d 439, 441 (La. Ct. App. 2010). But a

plaintiff’s ignorance of the facts on which her claim is based cannot be “attributable to

[her] own willfulness or neglect; that is, a plaintiff will be deemed to know what [she]

could by reasonable diligence have learned.” Corsey v. La. Dep’t Corr., 375 So. 2d 1319,

1322 (La. 1979). Johnson claims that she neither knew nor reasonably could have known

that thalidomide had caused her birth defects until at least September 24, 2011.

       The District Court addressed Johnson’s argument that her mother’s knowledge

should not be imputed to her, and concluded that because Louisiana law does not permit

retroactive application of its minor tolling statute, her mother’s knowledge would be

face of her complaint. See Wells v. Zadeck, 89 So. 3d 1145, 1149–50 (La. 2012). On
summary judgment, then, GSK only had to discharge its burden of production, at which
point the burden shifted to Johnson to show a genuine issue of material fact on her
argument that her claim was timely. See Celotex Corp. v. Catrett, 477 U.S. 317, 330
(1986).

                                               4
imputed to Johnson. It then proceeded to discuss the discovery rule as applied to the set

of facts known to Williams, and concluded that her “suspicions obligated Ms. Williams

to exercise reasonable diligence is ascertaining the cause of her daughter’s injuries.”

(App 16.) Thus, the statute of limitations ran long before Johnson instituted the instant

action. The District Court also correctly reasoned that, even if Williams’ knowledge was

not imputed to Johnson, Johnson never investigated the cause of her injuries, and “even a

cursory inquiry would have provided Plaintiff with abundant information concerning the

connection between thalidomide and her birth defects.” (App 18.) The District Court

properly rejected Johnson’s other arguments, namely contesting the Court’s refusal to

credit her expert, as well as her argument that her inaction was caused by GSK’s

fraudulent concealment.

       We find the District Court’s analysis to be correct in all respects and will therefore

affirm its grant of GSK’s motion for summary judgment.




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