United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
WEBSTER UNITED STATES MAGISTRATE JUDGE.
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.
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.)
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.
Standard of Review
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
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.
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.
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.
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. ...