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Sebastian v. Davol, Inc.

United States District Court, W.D. North Carolina, Statesville Division

August 3, 2017

KAY SEBASTIAN and MICHAEL DOBRZYNSKI, Plaintiffs,
v.
DAVOL, INC. and C.R. BARD, INC., Defendants.

          ORDER

          RICHARD L. VOORHEES, UNITED STATES DISTRICT JUDGE

         THIS MATTER IS BEFORE THE COURT on Defendants' Motion to Dismiss Complaint for Lack of Jurisdiction (Doc. 4) and Defendants' Motion to Dismiss Plaintiffs' Amended Complaint (Doc. 11). Defendants previously filed a Motion to Dismiss (Doc. 4) but Plaintiffs responded by filing an Amended Complaint (Doc. 8). Defendants' Motion to Dismiss Plaintiff's Amended Complaint (Doc. 11) has been fully briefed (Docs. 5, 12-14), and is now ripe for disposition. For the reasons stated below, Defendants' Motion to Dismiss Complaint for Lack of Jurisdiction (Doc. 4) is DENIED AS MOOT, and Defendants' Motion to Dismiss Plaintiffs' Amended Complaint (Doc. 11) is GRANTED IN PART and DENIED IN PART.

         I. NATURE OF THE CASE

         Plaintiff Kay Sebastian and Plaintiff Michael Dobrzynski claim injuries after their respective surgical implantations of Defendant C.R. Bard, Inc.'s (“Bard”) and Defendant Davol, Inc.'s (“Davol”) Composix Kugel Hernia Patch device (“Composix Kugel”) to repair ventral hernias. (Doc. 8 at 10-15). Both Plaintiffs later had their Composix Kugels removed. (Id. at 10-15). Defendant Davol - which is incorporated in Delaware and has its principal place of business in Rhode Island (id. at 1; see Doc. 12 at 13) - designed, manufactured, promoted, and sold the Composix Kugel. (Id. at 1-2). Defendant Bard - which is incorporated and has its principal place of business in New Jersey - is the corporate parent of Davol. (Id. at 2; see Doc. 12 at 13).

         In 2001, the Food and Drug Administration (“FDA”) authorized the Composix Kugel as a Class II medical device “for use in hernia repairs requiring reinforcement with a non-absorbable support material.” (Doc. 8 at 3-4). The Composix Kugel consists of two surfaces and a “memory recoil ring” (“Ring”). (Id. at 4). One surface, which faces inward, is made of polypropylene mesh. (Id.) Plaintiffs allege that polypropylene mesh is incredibly adhesive, and can cause serious injury when it comes into contact with the gastrointestinal system. (Id.). The second surface, which faces outward, operates as a shield between the adhesive mesh and the gastrointestinal system. (Id.) The Ring is designed to prevent injury by helping to bind the Composix Kugel together in order to keep the adhesive side away from the gastrointestinal system. (Id.). However, the Ring's weld can malfunction, causing the Composix Kugel's adhesive mesh to contact the gastrointestinal system. (Id. at 4-5).

         Plaintiffs allege that, by 2003, Defendants were on notice of the Ring's potential to malfunction at the weld. (Id. at 6). In August 2005, Defendants initiated a partial distribution hold on the Composix Kugel following a “growing number of complaints regarding complications.” (Id. at 6-7). In 2006, the FDA issued an Establishment Inspection Report, which showed that Defendants failed to include all data submitted by surveyed physicians about the Composix Kugel, concealed information about physicians' concerns regarding the Composix Kugel, and failed to properly monitor their own post-market design validation surveys. (Id. at 6). Between December 2005 and January 2007, Defendants announced four recalls for various sizes of the Composix Kugel. (Id. at 7).

         Plaintiffs seek to recover for their injuries allegedly resulting from design defects with the Composix Kugel. (Id. at 11, 15). Plaintiffs bring claims for: (1) negligence; (2) violations of North Carolina's and Wisconsin's Unfair and Deceptive Trade Practices Acts (“UDTPA”), N.C. Gen. Stat. § 75-1.1, et seq. (North Carolina), Wis.Stat. § 100.18, et seq. (Wisconsin); (3) negligent misrepresentation; (4) fraud; (5) breach of express warranty; and (6) breach of implied warranties in relation to the defective design, manufacture, and warnings of the Composix Kugel. (Id. at 16-32). Plaintiffs seek economic and non-economic damages in excess of $75, 000; compensatory, treble, and punitive damages; attorneys' fees and costs; and prejudgment interest. (Id. at 34). Defendants move to dismiss (1) Plaintiff Sebastian's claims pursuant to Fed.R.Civ.P. 12(b)(6) based on the expiration of the statute of limitations and (2) Plaintiff Dobrzynski's claims pursuant to Fed.R.Civ.P. 12(b)(2) based on this Court's alleged lack of personal jurisdiction over Defendants relative to Dobrzynski's claims. (Docs. 11, 12).[1]

         II. PLAINTIFF KAY SEBASTIAN'S CLAIMS

         A. Standard of Review for a Rule 12(b)(6) Motion

         When reviewing a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), a court must examine the legal sufficiency of the complaint; it may not resolve factual disputes or weigh the claims and defenses against one another. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). For purposes of a motion to dismiss, a court must accept as true all of the well-pleaded factual allegations contained in the complaint and should view the complaint in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).

         “A statute of limitations defense may properly be asserted in a Rule 12(b)(6) motion to dismiss if it appears on the face of the [c]omplaint that such statute bars the claim.” Koehler v. Rite-Aid Pharmacy, 2012 WL 896144, at *2 (W.D. N.C. Mar. 15, 2012) (quoting Horton v. Carolina Medicorp, Inc., 472 S.E.2d 778, 780 ( N.C. 1996) (citing Hargett v. Holland, 447 S.E.2d 784, 786 ( N.C. 1994))). A federal court sitting in diversity generally applies the statute of limitations which would be applied by a court of the forum state. Stokes v. SE Hotel Props., Ltd., 877 F.Supp. 986, 994-96 (W.D. N.C. 1994) (concluding that “because the forum state North Carolina deems its statutes of limitations to be procedural, this Court must treat them as such and apply them in this case”); see Crosson v. Conlee, 745 F.2d 896, 902 (4th Cir. 1984). Accordingly, Defendants' and Sebastian's briefing cite North Carolina limitations statutes. (See Doc. 12 at 6; Doc. 13-1 at 4). “Although the accrual date of a cause of action is a factual inquiry typically reserved for a jury, the district court may resolve that inquiry itself if the facts presented provide a clear basis for such a determination.” Morley v. North Carolina Dep't of Health and Human Servs., 171 F.Supp.2d 585, 592 (W.D. N.C. 2001) (quoting Wood v. Virginia, 155 F.3d 564 (4th Cir. July 23, 1998) (Table) (unpublished per curiam)).

         B. Analysis

         The facts construed in the light most favorable to Plaintiff Kay Sebastian are as follows. In 2006, a surgeon implanted Sebastian, a North Carolina resident, with a Composix Kugel in order to repair a ventral hernia. (Doc. 8 at 1, 10). Following the implantation, Sebastian began to feel ill. (Id.) Sebastian's symptoms after the implantation were “more frequent and diverse” than symptoms she had previously experienced from diverticulitis, but her new symptoms were still consistent with symptoms associated with diverticulitis. (Id.).

         In 2013, Sebastian was diagnosed with a recurrent ventral hernia, and doctors planned a “revision surgery” to address the previous hernia repair. (Id.). However, before the scheduled date of the “revision surgery, ” Sebastian went to the emergency room due to nausea, abdominal pain, and vomiting. (Id. at 11). Sebastian was diagnosed with acute diverticulitis, given medication to help treat diverticulitis, and sent home. (Id.). A June 2013 CT scan following the cancellation of Sebastian's “revision surgery” showed acute diverticulitis. (Id.). A CT scan the next month found no evidence of a recurrent ventral hernia that was previously suspected. (Id.). Sebastian did not undergo the “revision surgery” in 2013. (Id.). Sebastian's condition improved in the following weeks, and the symptoms that led to her emergency room visit were attributed to a bout of diverticulitis. (Id.).

         In February 2015, Sebastian was admitted to the hospital following complaints of severe abdominal pain and constipation. (Id.). Doctors discovered she was suffering from a colonic stricture with cecal ischemia secondary to severe dilation, serosal injuries to the cecum, and a recurrent ventral hernia.[2] (Id.). Plaintiff alleges that the Composix Kugel caused her injuries. (Id.). A doctor performed an exploratory laparotomy with sigmoid colectomy on Sebastian, repaired her colonic stricture, created a colostomy, and removed the Composix Kugel.[3] (Id.).

         This Court has diversity jurisdiction over Sebastian's action pursuant to 28 U.S.C. § 1332(a), as the amount in controversy is greater than $75, 000 and there is complete diversity among the parties. 28 U.S.C. § 1332(a). Therefore, the relevant North Carolina statute of limitations will apply to each claim. See Stokes, 877 F.Supp. at 994-96. In support of their Motion to Dismiss, Defendants assert that Plaintiff Sebastian's claims are all barred by the applicable statutes of limitations. (Doc. 12 at 6; Doc. 14 at 3).

         i. Personal Injury Rooted in Negligence Claim

         The statute of limitations for a personal injury claim rooted in negligence is three years. N.C. Gen. Stat. § 1-52(5). A cause of action for negligence accrues when “bodily harm to the claimant or physical damage to [her] property becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs.” N.C. Gen. Stat. § 1-52(16). “The Supreme Court of North Carolina has explained that this statute ‘establishes what is commonly referred to as the discovery rule, which tolls the running of the statute of limitations for torts resulting in certain latent injuries'.” Stahle v. CTS Corp., 817 F.3d 96, 98 (4th Cir. 2016) (quoting Misenheimer v. Burris, 637 S.E.2d 173, 175-76 ( N.C. 2006)). Therefore, if Sebastian's negligence cause of action became apparent or ought reasonably to have become apparent to her prior to January 4, 2014 (three years before she filed this suit), her action is barred by the statute of limitations. N.C. Gen. Stat. § 1-52(16); (Doc. 1).

         Defendants present two arguments that Sebastian's negligence cause of action accrued in or around 2006, although only developing one argument fully. First, Defendants point to the Amended Complaint's allegation that Sebastian began feeling ill after her Composix Kugel implant in 2006 “but she noted her new symptoms, although similar to the ones previously experienced due to the diverticulitis, were more frequent and diverse.” (Doc. 12 at 7; Doc. 8 at 10 (Amended Complaint allegation)). Defendants do not directly develop an argument that these new symptoms triggered accrual of the limitations period in 2006. At most, Defendants reference the Amended Complaint's allegations regarding the 2006 “new symptoms” and Sebastian's scheduled May 2013 revision surgery (see below) to conclude that “[t]he plain reading of these allegations indicates that, by no later than May 2013, Plaintiff and her physician thought that there was a connection between Plaintiff's symptoms and the Composix Kugel and that is why the product was scheduled to be removed.” (See Doc. 14 at 3). Defendants' argument in this respect focuses on events in 2013, not 2006. (See Doc. 12 at 7-8).

         Here, the existence of Sebastian's new symptoms after her 2006 surgery alone does not shine any light on what caused those symptoms. Sebastian alleges that, although her new symptoms were more frequent and diverse, they were “similar to the ones previously experienced due to the diverticulitis.” (Doc. 8 at 10). At this stage of the litigation, and viewing the facts alleged in the light most favorable to Sebastian, the new post-implantation symptoms she experienced can just as readily be attributed to her diverticulitis as to the Composix Kugel. Therefore, this Court does not consider Sebastian's new post-implantation symptoms to have brought about accrual of her cause of action.

         Second, Defendants argue that the Establishment Inspection Report (“EIR”) and Defendants' recalls of various sizes of the Composix Kugel “only add to Plaintiff Sebastian's awareness that the product was the possible cause of her alleged injuries.” (Doc. 12 at 7-8). Defendants claim that both the EIR and information regarding some of their product recalls were publicly available as early as 2006, which in turn ought reasonably to have put Sebastian on notice of her injury and its cause in 2006. (Id. at 7-8). Sebastian argues that she had no reason to know of either the recall or the EIR in 2006 because “neither her doctor nor the Defendants notified her that she had received a product that was recalled just days following the implant procedure.” (Doc. 13-1 at 3-4). Therefore, Sebastian claims her cause of action did not accrue because of the recalls and the EIR. (Id. at 6-7).

         The proposition that an announcement made to the public, released without much fanfare, should automatically put every member of the public on notice of the contents of that announcement is not intuitive to this Court. Thus, Defendants must back up their argument here with persuasive authority. Defendants do not cite to any case law or other persuasive authority which supports the proposition that information which is publicly available ought reasonably to put a specific individual on notice of her injury and the cause of her injury. (See Doc. 12 at 7-8). It is not the job of this Court to locate persuasive authority in support of a party's position; that role falls to the parties themselves. Cf. Carlson v. Boston Sci. Corp., 856 F.3d 320, 324-25 (4th Cir. 2017) (declaring that, for the purpose of a motion for summary judgment, the responsibility to find record support for the parties' positions is delegated to the parties, not to the Court). Since Defendants have not cited to any relevant case law or other persuasive authority to support their assertion that an announcement to the public should put every member of the public on notice of the content of the announcement, and because there is no ...


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