United States District Court, W.D. North Carolina, Statesville Division
RICHARD L. VOORHEES, UNITED STATES DISTRICT JUDGE
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.
NATURE OF THE CASE
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).
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).
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).
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,
PLAINTIFF KAY SEBASTIAN'S CLAIMS
Standard of Review for a Rule 12(b)(6) Motion
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).
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)).
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.).
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
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. (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
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).
Personal Injury Rooted in Negligence Claim
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).
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).
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
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
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