United States District Court, E.D. Kentucky, Southern Division
OPINION AND ORDER
K. Caldwell United States District Judge
matter is before the Court on the cross-motions for summary
judgment filed by the parties (DE 23, 27). In addition,
plaintiff Mary Joe Bundy Everage has filed a motion to stay
this action (DE 44).
is proceeding pro se. She is, however, quite
familiar with the Court having been a party to multiple
federal actions. In 2005, she was indicted for attempting to
impede and obstruct the Internal Revenue Service by making
threats of violence and threats of force involving a firearm.
(United States v. Everage, No. 7:05-ll-DLB (filed
May 16, 2005)). In that action, Judge David Bunning found
that Everage was suffering from a mental disease or defect
rendering her mentally incompetent to stand trial, and he
ordered her committed for treatment. (United States v.
Everage, No. 7:05-ll-DLB, DE 28, Order (filed Dec. 16,
2005)). Judge Bunning further ordered that Everage be
involuntarily administered anti-psychotic medication.
(United States v. Everage, No. 7-.05-11-DLB, DE 63,
Order (filed April 17, 2006)). After months of treatment,
Judge Bunning determined that Everage had recovered from the
symptoms of her mental illness to the extent that she was
able to stand trial. The United States dismissed the charges
against her, and Judge Bunning "strongly
encouraged" her to continue with the medications that
were prescribed by the Federal Medical Center. (United
States v. Everage, No. 7:05-ll-DLB, DE 72, Order (filed
Aug. 23, 2006)).
civil action is one of at least ten complaints she has filed
in this district. Among the entities that Everage has sued
have been the United States, Wal-Mart Stores, Inc., Ford
Motor Company, the Nashville Songwriters Association
International, ABC Television Network, Inc., NBC Television
Network, Inc., Fox Broadcasting, Central Broadcasting Systems
Corporation, Inc., and Walt Disney Company.
this action, Everage alleges that she took the anti-psychotic
drug Risperdal from 2006 to 2008 and then took the generic
form, risperidone, until March 2017. She alleges that she has
suffered physical and mental damages as a result of the
medication. She asserts claims against two defendants:
Johnson & Johnson and Janssen Pharmaceuticals, Inc. She
alleges that Janssen Pharmaceuticals manufactures the drug
and that Johnson & Johnson owns Janssen Pharmaceuticals.
She seeks over $30 million in damages.
Court construes the complaint to assert claims for
failure-to-warn and design-defect under Kentucky's
Product Liability Act ("PLA"), KRS §§
411.300 et. seq. Under Kentucky law, a product
liability action is any action alleging "personal
injury, death or property damage caused by or resulting from
the manufacture, construction, design, formulation,
development of standards, preparation, processing, assembly,
testing, listing, certifying, warning, instructing,
marketing, advertising, packaging or labeling of any
product." KRS § 411.300.
mentions the terms defamation, breach of contract, and fraud
in her complaint. (DE 1-1, Complaint, CM-ECF p. 7.) However,
she does not allege a defamatory statement or any specific
fraudulent statements. The only contract she mentions is an
implied contract to "exercise due care to the patients
and users of these manufactured drugs." This claim is
based on Everage's allegation that she was injured as a
result of taking medication that the defendants manufactured.
Those are the only injuries Everage alleges. "The PLA
applies to all damage claims arising from the use of
products, regardless of the legal theory advanced."
Monsanto Co. v. Reed, 950 S.W.2d 811, 814 (Ky.1997).
"[I]f a claim is brought against a seller or a
manufacturer of a product which is alleged to have caused
injury, then the PLA applies. . . ." Id.
Kentucky law, "a product liability plaintiff has one
year, after the date he becomes aware of his injury and the
offending instrumentality, to file suit." Hazel v.
Gen. Motors Corp., 863 F.Supp. 435, 438 (W.D. Ky. 1994)
(citing Ky.Rev.Stat. § 413.140(1)(a)). See also
Michals v. Baxter Healthcare Corp., 289 F.3d 402,
406 (6th Cir. 2002); Bosch v. Bayer Healthcare Pharm.,
Inc., 13 F.Supp.3d 730, 737 (W.D. Ky. 2014);
Lightfoot v. Eli Lilly Pharm. Co., No. CV
5:17-149-DCR, 2017 WL 4573377, at *2 (E.D. Ky. May 11, 2017);
Webster v. Pfeiffer Eng'g Co., No.
2017-CA-001736-MR, 2018 WL 6423515, at *1 (Ky. Ct. App. Dec.
7, 2018), review denied (Mar. 6, 2019).
injury is not readily ascertainable or discoverable, then the
statute begins to run on the date "the plaintiff
discovers, or in the exercise of reasonable diligence should
have discovered, not only that he has been injured but also
that his injury may have been caused by the defendant's
conduct." Wiseman v. Alliant Hosps., Inc., 37
S.W.3d 709, 712 (Ky. 2000) (quoting Hazel, 863
F.Supp. at 438).
alleges in her complaint that she has suffered from side
effects caused by the medication "for the past ten
years." (DE 1-1, Complaint at CM-EFC p. 5.) In response
to the defendants' argument that her claim is time
barred, Everage states only that her last prescription for
Risperdal or risperidone was filled in March 2017. (DE 29,
Response.) The cause of action against the manufacturers of
the medication accrued, however, when Everage suffered the
injury allegedly caused by the medication. Everage alleges
that she began suffering injuries ten years ago. Accordingly,
any claims based on those injuries are time barred.
Everage's motion to stay this case for six months, in the
motion Everage states that she was recently injured in a car
wreck. The motion was filed on April 1, 2019. The motions for
summary judgment were fully briefed before Everage was
involved in the car wreck and before she filed the motion to
stay. Because, in resolving the motions for summary judgment,
the Court has determined that Everage's claims are time
barred, the Court will deny as moot her motion to stay
further proceedings in the case.
these reasons, the Court hereby ORDERS as follows:
1) Everage's motion for summary judgment (DE 23) is
2) The defendants' motion for summary judgment (DE 27) is