Alan M. Leschyshyn v. Abbvie Inc.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 18, 2022*
Decided March 21, 2022
Before
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 21-1601
ALAN M. LESCHYSHYN,
Plaintiff-Appellant,
v.
ABBVIE INC., et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 17 C 1778
Matthew F. Kennelly,
Judge.
O R D E R
Alan Leschyshyn, a federal prisoner, brought claims as part of a multidistrict-
litigation proceeding against AbbVie, Inc. and Abbott Laboratories (collectively,
“AbbVie”) for injuries allegedly caused by their testosterone-replacement-therapy drug,
* We have 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. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 21-1601 Page 2
AndroGel. Leschyshyn alleged that his use of AndroGel caused him to develop
compulsive behaviors such as gambling and risk-taking, which in turn caused him to
participate in financial crimes culminating in a 235-month prison sentence. The district
court ruled that Leschyshyn’s tort claims were barred by the applicable two-year statute
of limitations, and that no theory of tolling could save his claims. We affirm.
Leschyshyn was first prescribed AndroGel in 2006 for low testosterone levels. He
soon experienced behavioral changes, including compulsive gambling, risk taking,
oversexualization, and overspending. He says he did not realize the extent of the drug’s
cognitive effects until he was arrested for money-laundering crimes in 2015.
In February 2017, Leschyshyn filed personal-injury lawsuits in federal and state
courts. He brought one suit in federal court against AbbVie, alleging that his use of
AndroGel triggered harmful compulsive behaviors that resulted in financial ruin and a
criminal conviction that he now is serving. On the same day, he also brought a medical-
malpractice suit in Arizona state court against the doctor who prescribed him AndroGel
without warning him about its potential side effects. In both suits, Leschyshyn
contended that, although he had been prescribed the drug in 2006, he qualified for an
exception to the statute of limitations for people of unsound mind because the drug
impaired his cognition and prevented him from discovering the link between the drug
and his behaviors until his 2015 arrest. See Ariz. Rev. Stat. Ann. § 12-502 (“If a person …
is at the time the cause of action accrues … of unsound mind, the period of disability
shall not be deemed a portion of the period limited for commencement of the action.”).
In the state-court lawsuit, an Arizona court entered summary judgment for the
doctor, ruling that the state’s two-year statute of limitations for personal injury actions
barred Leschyshyn’s claims. The court concluded that Leschyshyn had not produced
sufficient evidence that he was of unsound mind to toll the limitations period from 2006
to 2015. See Leschyshyn v. Patel, No. 1 CA-CV 18-0402, 2019 WL 1276203, at *2 (Ariz. Ct.
App. Mar. 25, 2019). As the court explained, Leschyshyn’s complex financial fraud
scheme reflected an “acute awareness of laws and how to avoid them.” Id. at *3. The
Arizona Supreme Court denied Leschyshyn's petition for review, and the United States
Supreme Court denied his petition for a writ of certiorari.
In the federal lawsuit, the district court entered summary judgment for AbbVie
on all claims. The court agreed with the state court’s statute-of-limitations analysis,
adding that Leschyshyn’s tolling argument was barred by the doctrine of issue
preclusion because he had already litigated this theory fully and unsuccessfully in his

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No. 21-1601 Page 3
state-court lawsuit. To the extent Leschyshyn could be understood to argue that he
qualified for tolling because he did not discover his cognitive impairment until 2015, the
court determined that this argument was legally indistinguishable from his “unsound
mind” theory that the state court rejected.
On appeal, Leschyshyn challenges the district court’s statute-of-limitations
analysis and maintains that the statute did not begin to run until 2015, when he
discovered that his erratic behavior was caused by his taking AndroGel. Arizona courts
follow the discovery rule, under which the statute begins to run when the plaintiff
“knows or with reasonable diligence should know the facts underlying the cause.” Doe
v. Roe, 955 P.2d 951, 960 (Ariz. 1998). He says that his delay in discovering the cause of
his injury stemmed from the effects of the AndroGel in that it impaired his learning and
caused him to disregard risks.
The district court properly rejected this argument on the grounds of issue
preclusion. Under Arizona law, issue preclusion bars a plaintiff from relitigating an
issue when the plaintiff had a full and fair opportunity to litigate the issue in a prior suit
and actually litigated the issue; the court in the prior suit entered final judgment; and
resolution of the issue was essential to that judgment. See Crosby-Garbotz v. Fell in & for
Cty. of Pima, 434 P.3d 143, 146 (Ariz. 2019). As the court appropriately explained,
Leschyshyn, despite fully litigating the issue through various levels of the state judicial
hierarchy, was unsuccessful in advancing the same “unsound mind” theory in the
Arizona state courts. He cannot escape the preclusive effect of the state-court judgment
by relabeling his “unsound mind” theory as a discovery-rule theory.
Finally, we note that Leschyshyn also raises arguments on appeal about the
merits of his tort action against AbbVie—namely that he should be entitled to a jury
trial because no one at AbbVie warned him about AndroGel’s potentially harmful side
effects. But because we affirm the dismissal of this lawsuit as untimely, we do not reach
the merits of his underlying claims.
AFFIRMED

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