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Williams v. Olympus America, Inc.

United States District Court, M.D. North Carolina

May 31, 2017

CHANCE WILLIAMS, Plaintiff,
v.
OLYMPUS AMERICA, INC., Defendant.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          JOE L. WEBSTER UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on a motion to dismiss filed by Defendant Olympus America, Inc. (Docket Entry 8.) Plaintiff, Chance Williams, filed a response to this motion, along with a supporting affidavit. (Docket Entries 13, 14.) For the following reasons, the Court recommends that Defendant's motion to dismiss be converted to a motion for summary judgment, and be granted.

         I. BACKGROUND

         Plaintiff originally filed this action against Defendant in Rowan County Superior Court. The action was removed to this Court on February 2, 2017. (Docket Entry 1.) According to the Complaint, Plaintiff is a resident of Rowan County who frequendy receives medical attention from the Veteran's Health Administration. (Compl. ¶ 5, Docket Entry 4.) Defendant is engaged in the business of manufacturing and selling medical devices including endoscopes, which are used for medical procedures within the human body. (Id. ¶ 2.) This device requires cleaning and disinfecting after each use. (Id. ¶ 4.) According to the Complaint, "[a] manufacturer of a medical device [intended for use on multiple patients] has an obligation to develop and validate a cleaning and disinfecting protocol, and to incorporate this protocol into the product's instructions." (Id.) On May 5, 2011, Dr. Joseph Perry performed an endoscopy procedure on Plaintiff at the Womack Army Medical Center. (Id. ¶ 5.) Plaintiff asserts that "[a]fter this procedure, [he] suffered many painful physical injuries." (Id. ¶ 6.) On December 10, 2014, Plaintiff received a letter indicating that the Joint Commission "found gaps in Womack Army Medical Center's cleaning processes and documentation of Womack's quality control efforts with the endoscope used on the Plaintiff." (Id. ¶ 7.) Defendant was the manufacturer of the endoscope used during Plaintiffs procedure. (Id. ¶ 8.)

         As a result of his physical injuries, Plaintiff filed this cause of action against Defendant claiming both negligence and breach of warranties on the part of Defendant. (Id. ¶¶ 10-22.) Plaintiff filed the Complaint in Rowan County Superior Court on December 28, 2016, after an order was granted on December 8, 2016 extending the time to file the Complaint. (Ex. A, Docket Entry 9-1.) After removing this action to federal court, Defendant filed the instant motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Docket Entry 8.) Defendant asserts that Plaintiffs Complaint falls outside the statute of limitations set forth in N.C. Gen. Stat. § 1-52(16). (Docket Entry 9 at 2.) In response, Plaintiff filed both an opposition brief and a supporting affidavit. (Docket Entries 13, 14.) The affidavit is not referred to in the Complaint.

         II. DISCUSSION

         Relevant Standard of Review

         When documents outside of the pleadings are submitted in relation to a motion to dismiss, the motion to dismiss should generally be converted to a motion for summary judgment as long as the parties have both notice of the conversion and an opportunity for discovery. See Fed. R. Civ. P. 12(d); Woods v. Colvin, No. 1:15CV763, 2016 WL 1328951, at *2 (M.D. N.C. Apr. 5, 2016) (unpublished) ("Because these documents contain information not referenced in the Complaint, the Commissioner's Motion to Dismiss should be converted into a motion for summary judgment."); Morris v. Lowe's Home Ctrs., Inc., No. 1:10-CV-388, 2011 WL 2417046, at *2 (M.D.N.C June 13, 2011) (unpublished) ("When 'matters outside the pleadings are presented to and not excluded by the court, the [Rule 12(b)(6) ] motion must be treated as one for summary judgment under Rule 56.'"). The first requirement-notice-is satisfied when the court gives the parties "some indication . . . that it is treating the 12(b)(6) motion as a motion for summary judgment." Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985) (internal quotation and citation omitted). The second requirement is that the court must afford the parties "a reasonable opportunity for discovery" before converting the motion. Id. (internal quotation and citation omitted).

         In light of these considerations, the Court issued an order on May 18, 2017, informing both parties that Defendant's motion to dismiss should be converted to a motion for summary judgment, and affording them additional time to indicate if additional discovery on the limited issues raised in Defendant's motion was necessary. (Docket Entry 17.) Plaintiff did not file a response, and Defendant's response indicates that it "believes the information presently before the Court establishes the statute of limitations has run on Plaintiffs claim." (Docket Entry 18 at 1.) The undersigned therefore concludes that the parties had both notice of the conversion and a '"reasonable opportunity' to present materials relevant to [their] response[s]." Derosa v. Colvin, No. 5:14-CV-414-FL, 2014 WL 5662771, at *2 (E.D. N.C. Nov. 4, 2014) (unpublished); see also Woods, 2016 WL 1328951, at *3 (converting motion to dismiss into summary judgment motion after Plaintiff was given a reasonable opportunity to respond). Thus, the undersigned finds that the Court should convert Defendant's motion to dismiss into a motion for summary judgment.

         Summary judgment Standard

         Summary judgment is appropriate when there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Zahodnick v. Int'lBus. Mads. Corp., 135 F.3d 911, 913 (4th Or. 1997). The party seeking summary judgment bears the initial burden of coming forward and demonstrating the absence of a genuine issue of material fact. Temkin v. Frederick Cty. Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991) (citing Celotex v. Catrett, Ml U.S. 317, 322 (1986)). Once the moving party has met its burden, the non-moving party must then affirmatively demonstrate that there is a genuine issue of material fact which requires trial. Matsushita Eke. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party such that a fact finder could return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Sylvia Dev. Corp. v. Calvert Cty., Md, 48 F.3d 810, 817 (4th Cir. 1995). Thus, the moving party can bear its burden either by presenting affirmative evidence or by demonstrating that the non-moving party's evidence is insufficient to establish its claim. Celotex, 477 U.S. at 331 (Brennan, J., dissenting). When making the summary judgment determination, the Court must view the evidence-and all justifiable inferences to be drawn from the evidence-in the light most favorable to the non-moving party. Zahodnick, 135 F.3d at 913; Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196 (4th Cir. 1997). However, the party opposing summary judgment may not rest on mere allegations or denials, and the court need not consider "unsupported assertions" or "self-serving opinions without objective corroboration." Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996); Anderson, 477 U.S. at 248-49.

         Statute of Limitations

         It is undisputed that North Carolina law applies in this case. The statute of limitations in a personal injury action in North Carolina is three years. Williams v. Advance Auto Tarts, Inc., 795 S.E.2d 647, 651 ( N.C. Ct. App. 2017) (citing N.C. Gen. Stat. § 1-52(16) (2015)); see also Drivers v. Sofamor, SMC, 44 F.Supp.2d 760, 766 (M.D. N.C. 1998) ("The statute of limitations for a personal injury claim sounding in negligence is three years under N.C. Gen. Stat. § 1- 52(5)."). This three-year limitation also applies to breach of warranty actions. See N.C. Gen. Stat. § 1-52(1). In personal injury cases, the statute of limitations begins to run when "bodily harm to the claimant. . . becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs." N.C. Gen. Stat. § 1-52(16). As Defendant correctly asserts, in this instance, the statute of limitations does not wait for the injured party to learn that the cause of his injury might be tortious. See Koehler v. Rite-Aid Tharmacy, No. 3:12CV46, 2012 WL 896144, at *2 (W.D. N.C. Mar. 15, 2012) (unpublished) (finding that the statute of limitations began running on plaintiffs product liability claim when he began feelingill, thereby disregarding when Plaintiff received a recall notice for the medication). The statute of limitations can be tolled in the event of a latent injury, but "as soon as the injury becomes apparent to the claimant or should reasonably become apparent, the cause of action is complete and the limitation period begins to run." Pembee Mfg. Corp. v. Cape Fear Const. Co., 313 N.C. 488, 493, 329 S.E.2d 350, 354 (1985). "It does not matter that further damage could occur; such further damage is only aggravation of the original injury." Id.

         Here, the undisputed facts before the Court, viewed in a light most favorable to the Plaintiff, cannot survive summary judgment. The Complaint was originally filed on December 28, 2016, after an order was granted on December 8, 2016 extending the time to file the Complaint. (Ex. A, Docket Entry 9-1.) Thus, in order to fall within North Carolina's three-year statute of limitations, Plaintiffs injury must not have become reasonably apparent until at least December 28, 2013. Pembee, 313 N.C. at 493, 329 S.E.2d at 354. Plaintiff does not allege a specific date in his Complaint when he discovered the injury; however, Plaintiff admits in his affidavit that he began experiencing "recurrent cough, fever, and weight loss, " along with an inability to properly digest food and constant pain in his digestive system, after the procedure performed at Womack Army Medical Center on May 4, 2011. (Pl.'s Aff. ...


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