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Zombie SOL: time-barred OxyContin criminal zombie

January 14, 2014

December 27, 2013 “Sawyer v. Purdue Pharmaceutical Corporation“, US District Judge Matthew W. Brann, wrote “zombie” in a case about a plaintiff who was injured, got hooked on pain killers, committed crimes, and wants to sue Purdue as maker of the medication.

Sawyer’s excuse for not filing earlier is that as long as he took OxyContin from 1999 through 2008, the medication turned him into a zombie unconsciously lusting to satiate his addiction, but blinded to the very fact that he was addicted.

zombie judge matthew brann

This “zombie” refers to the plaintiff’s addiction to the pain medication, OxyContin. The plaintiff also missed the statute of limitations deadline for filing his case but claims the drugs made him unable to file, and led to his criminal behavior and then he was in prison and could not find legal research materials. Judge Brann also refers to this as a “fugue-state”. (For more on fugue-state and how society construct mental illness read Ian Hacking’s “Mad Travelers”)

On August 10, 2011, plaintiff Anthony S. Sawyer (hereinafter, “Sawyer”), then (as now) an inmate of the Federal Correctional Institution at Allenwood and proceeding pro se and in forma pauperis,[FN2] filed a complaint against defendant Purdue, a maker of pharmaceuticals.

We can imagine that the access for prisoners to research materials is quite poor. In fact we don’t need to imagine because footnote 2 makes it clear that prisoners have poor legal access even when the case is docketed and the court is looking for someone to appoint.

FN2- On March 19, 2012, Sawyer’s motion for the appointment of counsel was granted by Magistrate Judge J. Andrew Smyser on the condition that an attorney willing to represent Sawyer could be found. (ECF No. 36). After the administrator of the Federal Bar Association’s Pro Bono Program reported to Magistrate Judge Smyser that no attorney had volunteered, Magistrate Judge Smyser vacated the order conditionally granting Sawyer’s motion, and entered in its place an order denying Sawyer’s request for appointment of counsel. (ECF No. 41).

So they can’t find an attorney. The court feels bad about it, and does allow an amended complaint because of the plaintiff’s “limited access to the prison law library”. Although the amended complaint is deemed “futile”, it does bring up a somewhat interesting issue as to whether original allegations of “brain injury” even need to be amended, or if “drug addiction” is already a kind of brain injury. (This is all apropro of zombies – drug addiction neuroscience, brains!).

Perhaps no lawyer would take this case because it was obviously time-barred (see below) or maybe because. While I respect the Third Circuit opinion that cases like this could be “excellent opportunity for newer attorneys to gain courtroom experience”, it could also be opportunity for that new attorney to make a mistake and potentially malpractice. Even if the newer attorney does everything right but simply loses on the merits, this plaintiff, Sawyer, is in prison and already knows how to file a civil suit. And I expect Purdue’s lawyers have some nasty tricks to retaliate on newbies. So yeah, a new lawyer has that to think about that. And with hindsight we can see it as a loser case, particularly on the time-bar issues, and even if could argue that, it’s all for a hail-mary argument against the pervasive abusive marketing practices of Big Pharma and the whole neoliberal corporate conspirary.

Sawyer’s negligence claim — filed August 10, 2011 — is barred by the statute of limitations.

Pennsylvania puts a two-year statute of limitations on actions in tort, 42 Pa. Cons. Stat. § 5524, and the clock generally begins ticking when the last event necessary to complete the tort occurs, usually the moment when the plaintiff was injured by the defendant. See Yurcic v. Purdue Pharma, L.P., 343 F. Supp. 2d 386, 392 (M.D. Pa. 2004) (Kane, J.). The general rule is modified, however, by Pennnsylvania’s “discovery rule,” which “delays the running of the statute until the plaintiff knew, or through the exercise of reasonable diligence should have known, of [his] injury and its cause.” Urland v. Merrell-Dow Pharm., Inc., 822 F.2d 1268, 1271 (3d Cir. 1987).

Sawyer’s excuse for not filing earlier is that as long as he took OxyContin from 1999 through 2008, the medication turned him into a zombie unconsciously lusting to satiate his addiction, but blinded to the very fact that he was addicted. Even taking Sawyer’s OxyContin-caused fugue-state as a given, however, by Sawyer’s own admission, he knew he had a problem with OxyContin by the end of 2008. Asked at his June 26, 2012 deposition, “So you believe by July of 2008, after you went through those withdrawal symptoms, at that point you knew that you had a problem with OxyContin?,” Sawyer answered, “That’s when I — that’s when it really dawned on me the full force of it, yes.” (Sawyer Dep. at 121). Sawyer backed away from July 2008, but when asked, “When do you think you knew you had a problem with OxyContin?,” Sawyer answered, “It was — it was a few months of — of reflecting on the events that brought me to prison [in June 2008].” (Id. at 123). Asked, “Fair to say sometime in 2008 you recognized you had a problem with OxyContin?,” Sawyer affirmed, “I think that’s a fair statement.” (Id.).

Armed with the knowledge of his addiction to OxyContin by at least the end of 2008, Sawyer was in a position to begin pursuit of his claim and commence his negligence action against Purdue within two years (the end of 2010). See Urland, 822 F.2d at 1275 (quoting Berardi v. Johns-Manville Corp., 334 Pa. Super. 36, 44, 482 A.2d 1067, 1071 (1984) (emphasis in original) (“[O]nce [a plaintiff] possesses the salient facts concerning the occurrence of his injury and who or what caused it, he has the ability to investigate and pursue his claim.”). (See also Sawyer Dep. at 387 (Sawyer: “I’ve known since the very beginning, since 2008, since my mind cleared up from the OxyContin, that it was the OxyContin that put me in this position. . . .” Q: “So why didn’t you file your complaint until August of 2011, if you knew about your claims against Purdue in 2008?” Sawyer: “I’ve been trying to do research, and I’ve been trying to put stuff together. Unfortunately, they were — they were — I couldn’t get ahold of any research material.”)). Because he commenced his suit on August 10, 2011, more than two years after the last day of 2008, Sawyer’s suit is now barred by the statute of limitations.

Which is to say, Mr. Sawyer is barred by Statue of Limitations – S-O-L – shit outta luck.

The opinion notes that Saywer never called the company to complain, so his breach of warranty claims fails too. I mean, of course he didn’t. They sold him a drug for pain management. They didn’t even sell it to him. They sold it to the world in advertising and then only to a pharmacy who then sold it to Sawyer with specific authorization from a doctor. Sawyer was in pain. He wanted pain killers. Then they destroyed his life.

Who would think to complain to the drug company? And yet, they are certainly, at least some part of, the “but for” cause, especially when they have already admitted some liability as regards marketing violations and misleading the public. This case isn’t about the criminal conviction. This isn’t about his mens rea at the time of the crimes and whether the pain killers or withdrawal made his actions involuntary, or whether the addiction makes it more than ordinary intoxication defense and whether he could control the choice to become intoxicated. No, this case is about suing the manufacturer of the drug for allowing him to get hooked in the first place.

At what point does that liability for mass-market advertising reach down to responsibility for effects on individuals? Here, after a decade addiction, Sawyer filed a year too late. And he has retained no expert witnesses. In the way society currently constructs the mental illness of addiction, it’s still the abuser’s fault, not the chemical manufacturer. And so Judge Brann hangs this case on procedural bars.

Which is to say, sorry, Mr. Sawyer, no chance to argue that the Big Pharma was responsible for negligent advertising that resulted in your poor life choices. You can’t afford a lawyer let alone any expert witnesses. Your argument, while creative, is late and time barred. Buh-bye zombie…


For the foregoing reasons, defendant Purdue’s motion for summary judgment (ECF No. 47) is granted; plaintiff Anthony S. Sawyer’s motion to amend (ECF Nos. 60 & 61) is denied.

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