Judges: Per Curiam
Filed: Dec. 11, 2009
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted December 10, 2009* Decided December 11, 2009 Before WILLIAM J. BAUER, Circuit Judge TERENCE T. EVANS, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge No. 09-2865 TERENCE BRUCE RICHARDS, Appeal from the United States District Plaintiff-Appellant, Court for the Northern District of Illinois, Eastern Division. v. No. 08 C 6083
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted December 10, 2009* Decided December 11, 2009 Before WILLIAM J. BAUER, Circuit Judge TERENCE T. EVANS, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge No. 09-2865 TERENCE BRUCE RICHARDS, Appeal from the United States District Plaintiff-Appellant, Court for the Northern District of Illinois, Eastern Division. v. No. 08 C 6083 ..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 10, 2009*
Decided December 11, 2009
Before
WILLIAM J. BAUER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 09‐2865
TERENCE BRUCE RICHARDS, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 08 C 6083
ELI LILLY AND COMPANY,
Defendant‐Appellee. Joan B. Gottschall,
Judge.
O R D E R
Terence Richards claims in this lawsuit under the diversity jurisdiction that he was
injured from using Humatrope, a drug manufactured by Eli Lilly and Company. But
Richards had last used the drug in 2004, and in 2005 he sued the company in federal court
for negligence, strict liability, and breach of implied warranty, all premised on his use of
Humatrope “[d]uring and before July 2004.” That complaint was dismissed without
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
No. 09‐2865 Page 2
prejudice because Richards did not allege enough in damages to meet the $ 75,000
threshold for diversity jurisdiction.
The complaint here, which Richards filed in October 2008, is a virtual copy of the
earlier suit except for its allegation of greater damages. Lilly moved to dismiss the suit as
barred by the applicable statutes of limitations. The district court took judicial notice of the
2005 complaint and, applying Illinois law, see Woidtke v. St. Clair County, 335 F.3d 558, 562
(7th Cir. 2003), concluded that Richards had last taken Humatrope in July 2004 and knew of
his alleged injury by the following year. That put his claims for negligence and strict
liability outside the two‐year statute of limitations, see 735 ILL. COMP. STAT. 5/13‐202, and
his claim for breach of implied warranty outside the four‐year statute of limitations, see 810
ILL. COMP. STAT. 5/2‐725. Accordingly, the district court granted the motion and dismissed
the complaint. Richards appeals.
Our review is de novo. Dominguez v. Hendley, 545 F.3d 585, 588 (7th Cir. 2008).
Richards argues that the limitations periods should have been tolled under the discovery
rule. He contends that, although in 2005 he was able to piece together that he had been
injured by Humatrope, he did not know this with medical certainty and did not gain
sufficient knowledge until he filed the second complaint in 2008.
But medical certainty is not the test. In Illinois the statute of limitations for a
personal‐injury claim begins to run “when the plaintiff discovers, or reasonably could
discover” the injury and cause. Hollander v. Brown, 457 F.3d 688, 692‐93 (7th Cir. 2006). By
2005 Richards believed he had been injured and knew enough to allege that Humatrope
was the cause. This is when the clock began to run on his claims for negligence and strict
liability. See Golla v. Gen. Motors Corp., 657 N.E.2d 894, 898‐99 (Ill. 1995); Morietta v. Reese
Constr. Co., 808 N.E.2d 1046, 1050‐51 (Ill. App. Ct. 2004). His warranty claim accrued even
earlier; a breach of an implied warranty is complete when a defective product is delivered,
and the statute of limitations begins running at delivery, even if the buyer could not
discover the defect until later. Ridle v. Sprayrite Mfg. Co., 555 N.E.2d 1272, 1273 (Ill. App. Ct.
1990); Nelligan v. Tom Chaney Motors, Inc., 479 N.E.2d 439, 442 (Ill. App. Ct. 1985).
AFFIRMED.