Response to Defendants’ Motion for Summary Judgment

Borowicz v. Alza

Description: This brief was filed in Ohio state court in response to a summary judgment motion filed by the defendants in a fentanyl pain patch case. The response generally addresses issues relating to the statute of limitations on a claim for product defect or medical negligence. This brief was filed by Heygood, Orr & Pearson on behalf of their client.

LOUIS BOROWICZ, as Administrator of the Estate of DONNA SMITH, DeceasedPlaintiff,vs.ALZA CORPORATION, et al.,





COMES NOW Plaintiff, Louis Borowicz (“Plaintiff”), Administrator of the Estate of Donna Smith, and files this Response to Defendants ALZA Corporation and Sandoz Inc.’s Motion for Summary Judgment and would respectfully show unto the Court as follows:


This case involves allegations that the decedent Donna Smith (“Donna”) died from a defective pain patch that malfunctioned and delivered a lethal level of the drug fentanyl. When Donna unexpectedly died in December 2006, her daughters (the beneficiaries in this action) were not sure what had caused her death and speculated that it may have been the result of a heart attack. But because Donna had made a report to the police of an intruder shortly before her death, her daughters requested an autopsy be performed to rule out the possibility of foul play. After performing the autopsy and receiving the results of toxicological testing, the coroner issued his report concluding that Donna had died as a result of fentanyl intoxication. This report issued on February 26, 2007, and Plaintiff filed his complaint less than two years later on February 24, 2009.

Defendants contend that the statute of limitations has run on Plaintiff’s claims because Plaintiff did not file this complaint within two years of Donna’s Death. But in a wrongful-death case involving exposure to a prescription drug, the two-year statute of limitations does not begin to run until the victim’s survivors either (1) are informed by competent medical authority that the decedent’s death was related to exposure to the drug or (2) should have known that the decedent’s death was related to the exposure to the drug by exercise of reasonable diligence. In their summary judgment motion, Defendants do not address how Donna’s beneficiaries did (or could have) suspected a malfunction of Donna’s fentanyl patch before the coroner ruled that the death was caused by fentanyl intoxication. To the contrary, Donna’s beneficiaries have testified that prior to reading the coroner’s report, they suspected a heart attack was the cause of death or that there may have been some type of foul play involved (which is why they ordered the autopsy). Accordingly, there is a question of fact as to what date the cause of action accrued, and summary judgment must be denied.


Shortly after midnight on December 17, 2006, Donna Smith called and made a report to the police about a possible intruder in her home. (See Police Incident Report dated December 17, 2006 (Ex. 1) at pg. 03-04.) The police responded and concluded that she was probably hallucinating. (See id. at 04; Excerpts from Deposition of Penny Burchett (“Burchett Dep.”) (Ex. 2) at 80:14-83:8.) About 16 hours later, Donna was found dead in her home. (Burchett Dep. (Ex. 2) at 89:12-91:4.) Because of concerns about someone possibly having broken into Donna’s home and assaulting her the night before her death, her daughters, Rhonda Willis and Cindy Munn, requested an autopsy. (See Deposition of Rhonda Willis (“Willis Dep.”) (Ex. 3) at 100:4-17; See Deposition of Cynthia Munn (“Munn Dep.”) (Ex. 4) at 72:19-73:23.) Donna’s other daughter, Penny Burchett, had no idea what killed her mom, but her first premonition was that it was a heart attack. See Burchett Dep. (Ex. 2) at 99:4-12; 100:16-18; 105:18-22. Betty Traylor, the Scioto County Coroner Clerk, explained that the family called her to express concerns as to how Donna had died in light of the previous report of an intruder:

Q. And then what happened next in terms of your involvement concerning the death of Donna Smith?

A. Started getting calls the next morning from one of the daughters, I believe it was Penny Burchett, I’m not sure – no, it was Rhonda Willis, suspecting that – she just wanted to make sure; she was worried because of the – her mother saying someone broke in, and she wanted to make sure she died from a heart attack, or if someone had injured her and actually broken in or – they were aware the detectives were there and thought she was just hallucinating. But the daughter was still worried that something might have – you know, someone might have really tried to break in.

(See Deposition of Betty Darlene Traylor (Traylor Dep.) (Ex. 7) at 10:12-11:2.)

On February 26, 2007, Deputy Coroner Obinna R. Ugwa, M.D. signed an autopsy report identifying the cause of death as “fentanyl intoxication.” (Autopsy Report (Ex. 5) at 1.) The toxicology analysis accompanying the autopsy report showed that Donna Smith had a level of fentanyl in her system of 12 ng/mL. (Autopsy Report (Ex. 5) at 5.) During his deposition, the Deputy Coroner (a forensic pathologist) explained that based on his training and experience the 12 ng/mL of fentanyl detected in Donna’s blood was a lethal level. (Deposition of Obinna Ugwu, M.D. (Ex. 6) at 54:10-55:8.) Donna Smith’s daughters were unaware that their mother’s death was caused by fentanyl until they received this autopsy. (Munn Dep. (Ex. 4) at 72:19-73:23 (“[I]t was a shock to me, when we got the autopsy report and – you know, I never suspected fentanyl overdose. That just wasn’t nowhere in the scenario.”).)

On February 24, 2009, Plaintiff filed his complaint alleging strict product liability and negligence in the design, manufacture and marketing of the fentanyl patches worn by Donna at the time of her death. Plaintiff contends that the fentanyl patches manufactured by Defendants and used by Donna Smith were defective because they delivered a level of fentanyl far in excess of what was intended or designed.


A. Under Ohio’s wrongful-death statute, Plaintiff’s claims did not accrue until the beneficiaries received the autopsy report.

The Defendants argue that the statute of limitations has run on Plaintiff’s claims against them because the lawsuit was filed more than two years after Donna’s death. This assertion ignores the proper application of Ohio’s statutorily-defined discovery rule for wrongful-death, product-liability actions. When a wrongful-death claim involves a defective prescription drug, “the cause of action accrues upon the date on which the claimant is informed by competent medical authority that the decedent’s death was related to exposure to the product or upon the date on which by the exercise of reasonable diligence the claimant should have known that the decedent’s death was related to the exposure to the product, whichever date occurs first.” Ohio Rev. Code Ann. § 2125.02(D)(2)(f)(ii). A plaintiff then has two years from this accrual date to file the lawsuit. Id.

In the instant case, Donna was found dead on December 17, 2006, and the initial death certificate listed the cause of Donna’s death as “Pending.” (See Death Certificate of Donna Smith (Ex. 10).) It was not until February 26, 2007 that the medical examiner signed an autopsy report identifying Donna’s cause of death as fentanyl intoxication. (See Autopsy Report (Ex. 5) at 1.) Thus, the earliest possible time Plaintiff could have conceivably related Donna’s death to a defective fentanyl patch was February 26, 2007. Without the benefit of the autopsy, toxicological testing, and the judgment of the Deputy Coroner, Donna’s daughters could not possibly have intuited that their mother received a lethal dose of fentanyl from a defective fentanyl patch. Before February 26, 2007, no “competent medical authority” had informed them that their mother’s death was caused by fentanyl. And no amount of diligent investigation on their part could have unearthed the cause of her death before the toxicological testing was completed and the coroner arrived at his professional opinion that Donna’s death was the result of fentanyl intoxication. Thus, the cause of action accrued no earlier than February 26, 2007. See Ohio Rev. Code Ann. § 2125.02(D)(2)(f)(ii).

Plaintiff filed this lawsuit on February 24, 2009, less than two years after the autopsy report issued. Construing the evidence most strongly in the Plaintiff’s favor,[1] there is a clear fact question as to whether Plaintiff’s claims against Defendants are timely.

B. Defendants mischaracterize the testimony of Donna’s daughters

Defendants cite to carefully selected excerpts from the deposition testimony of Donna’s daughters to argue that the date of death should be the “cognizable event” which triggered the running of limitations in this case. In so doing, Defendants both mischaracterize their testimony and omit certain key aspects of their depositions. For instance, Defendants fail to mention that Donna’s daughters have testified that before receiving the autopsy results they did not know what caused their mother’s death, but that they suspected a heart attack. (See Burchett Dep. (Ex. 2) at 99:4-12; 100:16-18; 105:18-22; Traylor Dep. (Ex. 7) at10:12-11:2.; Munn Dep. (Ex. 4) at 72:19-73:23 (“I never suspected fentanyl overdose.”).)[2] Defendants conveniently fail to mention why Donna’s daughters wanted an autopsy; namely, because of concerns about someone possibly having broken into Donna Smith’s home and assaulting her the night before her death:

Q. And what was it about going to the home that made you think you wanted an autopsy?

A. Hearing about her – some man coming into her house and [punching] her in the face.

(Willis Dep. (Ex. 3) at 100:4-17.

Q. Okay. And then we know there was a decision for an autopsy. Can you tell me how that decision was made?

A. I don’t know if it was the funeral guy; somebody mentioned it. And we said, no, we don’t want that. And the next day, when – I think it was the next day at the funeral home, my – when we found out she had a bruise on her head, my sisters went back to see her again [and] they saw the bruise on her head. And when they come out and told me that, we got to thinking about it, and I said, what if somebody really was in that house and did something? We need to know. So I called the police department and asked them, [and they] suggested that they could call and tell them you wanted an autopsy to see if…somebody hit her on the head?

(Munn Dep. (Ex. 4) at 72:19-73-19.

Instead, they focus on a call that one of the daughters made to Donna’s prescribing physician during which she inquired what medications Donna had been prescribed. (Defs.’ Mot. at 5; Munn Dep. (Ex. 4) at 74:11-24; 84:1-25.) They also highlight statements made by another daughter that she was concerned about the combination of Ambien and fentanyl being prescribed together to her mother. (Defs.’ Mot. at 5; Burchett Dep. (Ex. 2) at 58:22-59:10.)[3] But in order to prevail on summary judgment Defendants must affirmatively prove that Donna’s daughters were “informed by competent medical authority that the decedent’s death was related to exposure to [fentanyl patches] . . . or that they should have known that the decedent’s death was related to the exposure to the [fentanyl patches].” See Ohio Rev. Code Ann. § 2125.02(D)(2)(f)(ii). None of the testimony cited by Defendants shows that Donna’s daughters were informed or should have been informed that Donna died from fentanyl intoxication prior to the completion of the autopsy and the toxicological testing. And, as described above, the testimony of the daughters demonstrates that they did not know the cause of death prior to receiving the coroner’s findings. As a result, summary judgment must be denied.

C. The Cases Cited by Defendants Are Distinguishable.

Defendants contend that the “date of death is commonly found to be the cognizable event for purposes of triggering the statute of limitation.” (Defs.’ Mot. at 8.) They then go on to discuss several medical and legal malpractice cases where the discovery rule was at issue. As an initial matter, Defendants’ entire analysis is flawed because it ignores the fact that within the context of the wrongful-death statute, the Ohio legislature has specifically stated that limitations does not begin to run on the date of death in product liability cases involving prescription drugs. Instead, the cause accrues, by statute, when the beneficiaries are informed by competent medical authority or should have known that exposure to the drug caused the death. Ohio Rev. Code Ann. § 2125.02(D)(2)(f)(ii). Moreover, none of the cases cited by Defendants create such a bright-line rule. Instead, in each case, the plaintiff had some reason to suspect malpractice around the time of decedent’s death.[4]


For all of the foregoing reasons, Plaintiff respectfully requests this Court deny Defendants Motion for Summary Judgment.

Respectfully submitted,
2331 W. Northwest Highway
Second Floor
Dallas, Texas 75220
(214) 237-9001 (Telephone)
(214) 237-9002 (Telecopier)

[1] The accrual date for the statute of limitations is generally a question of fact, and the evidence must be construed in favor of Plaintiff. See Fugate v. Volck (1992), 79 Ohio App. 3d 263, 607 N.E.2d 78. (“Construing the evidence most strongly in [Plaintiff’s] favor, we cannot conclude that reasonable minds could reach only a conclusion in favor of [Defendant dentist] on the issue of whether [Plaintiff] should have been aware that she had been the victim of an improper dental treatment prior to September 1, 1988. [W]e conclude that there is a genuine issue of material fact for the jury to determine.”); Johnson v. Brandy, 1991 Ohio App. LEXIS 5936 (Ohio Ct. App., Greene County Dec. 10, 1991) (“Whether any event is sufficient to constitute a ‘cognizable event’ which puts a plaintiff on notice of malpractice is generally a question of fact.”); Scott v. Lee, 1997 Ohio App. LEXIS 2465 (June 6, 1997), (holding that a genuine issue of material fact existed as to when the cognizable event that placed the patient on notice of a possible malpractice claim.); Chelsea v. Cramer, 2002 Ohio 5801, 2002 Ohio App. LEXIS 5659 (Ohio Ct. App., Marion County Oct. 24, 2002) (“Applying the case law to the facts of this case and construing the evidence in Esther’s favor, we conclude that a question of fact remains as to when Esther’s cognizable event occurred. The medical records before this Court do not conclusively establish that Esther’s injury was attributable to the delay in her treatment by Dr. Thompson.”) Corcino v. Neurosurgical Servs., 2002 Ohio 1375 (Ohio Ct. App., Lorain County Mar. 27, 2002) (“If questions of fact remain as to the date of the cognizable event, summary judgment is not proper.”)

[2] In fact, the notes taken by the coroner’s secretary show that Donna’s daughters had no idea what had killed their mother: “The daughter was concerned not knowing if she had a heart attack, took too many meds, or if someone really did come in and injured her in any way.” See December 20, 2006 note from coroner’s secretary (Ex. 8); Traylor Dep. (Ex. 7) at 10:12-12:11.)

[3] These concerns turned out to be unfounded. The Hamilton County toxicology laboratory screened Donna Smith’s blood for Ambien (Zolpidem), and none was detected. (See Autopsy Report (Ex. 5) at 5; Excerpts from Deposition of Ernie Chaffin (Ex. 9) at 6:20-10:1; 32:4-8.)

[4] For example, in the case of Allison v. Pike Community Hosp., Case No. 05CA734, 2006 Ohio App. LEXIS 1274 (Ohio Ct. App. March 16, 2006), when concluding that the “cognizable event” was the decedent’s death, the court noted that the plaintiff “clearly suspicioned malpractice to be the proximate cause of decedent’s death.” Id. at *12-13.