Judges: Per Curiam
Filed: Jan. 04, 2018
Latest Update: Mar. 03, 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Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 21, 2017* Decided January 4, 2018 Before DIANE P. WOOD, Chief Judge JOEL M. FLAUM, Circuit Judge DIANE S. SYKES, Circuit Judge No. 17-1941 TOM TUDUJ, Appeal from the United States District Plaintiff-Appellant, Court for the Southern District of Illinois. v. No. 3:15-cv-00320-RJD SANOFI-AVENTIS U.S. LLC, et al., Reon
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 21, 2017* Decided January 4, 2018 Before DIANE P. WOOD, Chief Judge JOEL M. FLAUM, Circuit Judge DIANE S. SYKES, Circuit Judge No. 17-1941 TOM TUDUJ, Appeal from the United States District Plaintiff-Appellant, Court for the Southern District of Illinois. v. No. 3:15-cv-00320-RJD SANOFI-AVENTIS U.S. LLC, et al., Reona..
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NONPRECEDENTIAL DISPOSITION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 21, 2017*
Decided January 4, 2018
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 17‐1941
TOM TUDUJ, Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of Illinois.
v. No. 3:15‐cv‐00320‐RJD
SANOFI‐AVENTIS U.S. LLC, et al., Reona J. Daly,
Defendants‐Appellees. Magistrate Judge.
O R D E R
Tom Tuduj, an Illinois inmate, sued three pharmaceutical manufacturers
contending that their drugs caused him to suffer a psychotic breakdown and murder
his boss. The murder occurred in 2006, nine years before Tuduj filed his complaint, so
the district court dismissed the suit as untimely. On appeal Tuduj asserts a number of
reasons for extending the time to sue, but none has merit so we affirm.
* We agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 17‐1941 Page 2
“We construe the complaint in the light most favorable to the plaintiff[],
accepting as true all well‐[pleaded] facts alleged, taking judicial notice of matters within
the public record, and drawing all reasonable inferences in the plaintiff[’s] favor.”
Adkins v. VIM Recycling, Inc., 644 F.3d 483, 492–93 (7th Cir. 2011). We therefore reviewed
both Tuduj’s complaint and the Illinois Appellate Court’s decision upholding his
conviction for first‐degree murder, People v. Tuduj, 9 N.E.3d 8 (Ill. App. Ct. 2014).
In early 2006 Tuduj began seeing a doctor for “stress related symptoms.” He
received prescriptions for Wellbutrin XL (for depression), Ambien CR (for insomnia),
and generic propranolol (for high blood pressure). Tuduj began taking these drugs on
May 10, 2006. From May 10 to May 15, he began to lose his “grasp on reality”; “to hear
voices, see and hear things that [were] not there”; and to “[become] uncharacteristically
angry,” more depressed, and suicidal. He had nightmares about his boss killing people.
By May 16 he was in a “hypnotic trance.” On that day he stabbed his boss to death.
Tuduj was charged with first‐degree murder, and was admitted to the
psychiatric ward of the Cook County jail, where he was diagnosed as psychotic. He
stopped taking his medication a month after the murder, and all side effects promptly
ceased. Tuduj was eventually convicted of the murder after a bench trial and in April
2009 was sentenced to 40 years in prison. His conviction was affirmed on appeal in
2014. Id. at 42.
In 2015, nine years after the murder, Tuduj filed this tort suit against Sanofi‐
Aventis, the manufacturer of Ambien CR; GlaxoSmithKline, the manufacturer of
Wellbutrin XL; and Wyeth Pharmaceuticals, which manufactures propranolol. He
alleged that the companies knew (or should have known) but failed to warn consumers
that their drugs caused homicidal impulses, violence, and sleepwalking. He also alleged
that the companies conspired to conceal the dangerous side effects of the drugs and that
this conspiracy led to his psychotic breakdown and the murder in May 2006.
Because a long time had passed since the murder, Tuduj attempted to plead
around a likely statutes‐of‐limitations defense by invoking two Illinois doctrines. First,
he sought the benefit of the discovery rule, which tolls a statute of limitations until a
plaintiff knows or should know of his injury and its cause. Tuduj alleged that in 2014 he
discovered that the manufacturers had acknowledged problems with Ambien CR and
Wellbutrin XL. Second, he invoked the doctrine of “fraudulent concealment,” which
tolls a statute of limitations until five years after the plaintiff discovers a fraud that
concealed his claim. Tuduj alleged that in 2014 he learned that the defendant companies
issued fraudulent in press releases that their drugs were safe and effective.
No. 17‐1941 Page 3
The defendants moved to dismiss based on untimeliness, issue preclusion, and
failure to state a claim. The district court—acting through a magistrate judge with the
parties’ consent, see 28 U.S.C. § 636(c)(1)—ruled that the limitations clock began to run
on the date of Tuduj’s violent crime: May 16, 2006. The judge noted that the longest
possible limitations period was five years for fraud claims, 735 ILL. COMP. STAT. 5/13‐
205, and that period elapsed in May 2011. The judge rejected Tuduj’s theories for tolling
the time to sue.
On appeal Tuduj maintains that the limitations period did not begin running
until at least 2014. He also argues that the magistrate judge should not have dismissed
his case because a limitations bar is an affirmative defense more appropriate for
summary judgment. We address the latter point first. Tuduj would be correct if the
judge had dismissed the case for lack of evidence to support Tuduj’s accrual theories.
But the judge assumed the truth of Tuduj’s factual assertions and ruled that those
assertions were legally insufficient for tolling. No amount of discovery could change the
result. As long as the judge assumed the truth of the allegations, if the “complaint
nonetheless set[] out all of the elements of an affirmative defense, dismissal under
Rule 12(b)(6) is appropriate.” Indep. Tr. Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930,
935 (7th Cir. 2012). Accordingly, no procedural error occurred.
Tuduj’s arguments for extending the time to sue require that we first review
Illinois’s discovery rule. For injuries that are not readily discoverable, the Illinois
limitations period begins “when the victim (1) discovers [the] injury and knows that it
was wrongfully caused or (2) has ‘sufficient information concerning [the] injury and its
cause to put a reasonable person on inquiry to determine whether actionable conduct is
involved.’” Aebischer v. Stryker Corp., 535 F.3d 732, 733 (7th Cir. 2008) (quoting Daubach
v. Honda Motor Co., 707 N.E.2d 746, 750 (Ill. App. Ct. 1999)). This rule applies only to
latent injuries; Illinois presumes that a “sudden, traumatic event” puts the plaintiff on
immediate notice of potential claims. Hollander v. Brown, 457 F.3d 688, 692–93 (7th Cir.
2006); Golla v. Gen. Motors Corp., 657 N.E.2d 894, 899 (Ill. 1995). Because Tuduj’s injury
was a sudden psychotic breakdown culminating in a violent murder, his injury was not
latent, so the discovery rule does not apply.
But even under the discovery rule, Tuduj’s suit was untimely. The facts Tuduj
knew in June 2006 put him on notice to inquire into a possible lawsuit. He knew then
that within a week of taking the defendants’ drugs in May, he had experienced bizarre
symptoms, including violent dreams, suicidal impulses, and a psychotic breakdown
that led him to kill. The next month when he stopped taking the medications, the
No. 17‐1941 Page 4
symptoms ceased. This is enough to “spark inquiry in a reasonable person” about
whether the drugs might have caused his breakdown and whether the companies that
made them had done something “legally actionable.” Mitsias v. I‐Flow Corp., 959 N.E.2d
94, 101 (Ill. App. Ct. 2011).
Tuduj replies that although he knew of his injury, he did not know until 2014
that the defendants had wrongfully caused it. That is the year when, he says, he learned
that the defendants had disclosed the unsafe side effects that caused his breakdown. But
facts sufficient to prompt an inquiry into the wrongful cause of an injury need not be
statements by the defendant. See id. Any facts suggesting “some possible fault on the
part of the defendant” are enough. Id. at 102. And a reasonable person in Tuduj’s
position would have known in 2006 that the drugs were possibly at fault when their use
produced a violent, psychotic breakdown that ended when the drug use ended. Indeed,
during his trial testimony in 2009, Tuduj asserted this very point—that the combination
of drugs he ingested caused his murderous, psychotic breakdown. See Tuduj, 9 N.E.3d
at 20–21. Thus at least by the time of his trial, Tuduj had reason to believe that the
defendants’ drugs may have wrongfully caused his behavior. Even if we calculate the
limitations periods from 2009, the time to sue expired by 2014, a year before Tuduj filed
suit.
Tuduj responds that he cannot have known in 2009 that the drugs caused him to
murder his boss because that is when he was convicted of murder, and the conviction
reflects a finding that he, not a drug, was responsible for the killing. It was only later
that, he says, he learned enough about the drugs to know that they caused him to kill.
This argument does not help Tuduj. First, if the conviction conclusively establishes that
the drugs did not cause Tuduj’s breakdown, then it provides an alternate basis for
dismissal argued by the defendants—issue preclusion. Tuduj may not relitigate in this
civil case any issue—such as the cause of his violent act—that was decided at his trial.
See In re Emerald Casino, Inc., 867 F.3d 743, 759 (7th Cir. 2017) (explaining Illinois issue
preclusion). In any case, his argument misunderstands the meaning of inquiry notice.
Both before and after he was convicted, Tuduj had reason to believe that the
defendants’ drugs possibly produced violent side effects. That inquiry notice started the
limitations clock.
Switching approaches, Tuduj next invokes Illinois’s “continuing violations”
doctrine in another effort to delay the accrual of his claims. See Feltmeier v. Feltmeier,
798 N.E.2d 75, 85 (Ill. 2003). He argues that the defendants committed “continuing
violations” until 2014, the year he learned they had publicly disclosed the drugs’ side
No. 17‐1941 Page 5
effects. But the Illinois continuing‐violation doctrine applies only if Tuduj’s injury
continued beyond 2006. See id. Tuduj’s injury was complete in 2006 once his psychotic
breakdown ended and he stopped taking the drugs. The continuing‐violation doctrine
is inapplicable.
Tuduj’s last argument for extending the time to sue is based on his allegations of
fraudulent concealment, but he misuses this doctrine too. He contends that by failing to
warn consumers that the drugs might cause violent and homicidal impulses, and by
affirmatively asserting that they were safe, the defendants fraudulently concealed
information he needed to sue. In Illinois the statute of limitations may be tolled on the
basis of fraudulent concealment if a plaintiff relies on statements by the defendant that
“are calculated to lull or induce a claimant into delaying filing of his claim or to prevent
a claimant from discovering his claim.” Wisniewski v. Diocese of Belleville, 943 N.E.2d 43,
73 (Ill. App. Ct. 2011) (quotation marks omitted). But in waiting until 2015 to sue, Tuduj
did not rely on assurances that the drugs were harmless. Based on his sworn testimony
in 2009, he did not think that the drugs were harmless but in fact believed that they
caused his breakdown. See Gredell v. Wyeth Labs., Inc., 803 N.E.2d 541, 548–49 (Ill. App.
Ct. 2004).
One final observation. This lawsuit may be an impermissible attempt to
invalidate Tuduj’s conviction. See Heck v. Humphrey, 512 U.S. 477, 484–85 (1994) (federal
courts do not permit collateral attacks on convictions “through the vehicle of a civil
suit”) (quotation marks omitted). But the defendants did not raise the Heck defense, so
we do not address it. Tuduj raises additional arguments, but none warrant further
discussion.
AFFIRMED.