Azefor v. DePuy Orthopedics, Inc. et al, No. 2:2015cv00192 - Document 32 (D. Nev. 2016)

Court Description: ORDER Denying Defendant's 19 Motion to Dismiss. Signed by Judge Miranda M. Du on 03/03/2016. (Copies have been distributed pursuant to the NEF - NEV)
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Azefor v. DePuy Orthopedics, Inc. et al Doc. 32 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 HERMAN AZEFOR, 8 Case No. 2:15-cv-00192-MMD-GWF Plaintiff, ORDER v. 9 10 11 12 DEPUY ORTHOPAEDICS, INC., DEPUY PRODUCTS, INC., DEPUY INTERNATIONAL LIMITED, JOHNSON & JOHNSON, JOHNSON & JOHNSON SERVICES, INC., (Defendants DePuy Orthopaedics, Inc’s Motion to Dismiss – dkt. no. 19) Defendants. 13 14 15 I. SUMMARY 16 This action involves claims arising from a physical injury caused by an alleged 17 defective product. Before the Court is Defendant DePuy Orthopaedics, Inc.’s 18 (“DePuy”) Motion to Dismiss (“Motion”). (Dkt. no. 19.) Plaintiff Herman Azefor has 19 responded (dkt. no. 23) and DePuy has replied (dkt. no. 24). For the reasons 20 discussed herein, the Motion is denied. 21 II. RELEVANT BACKGROUND 22 The following facts are taken from Plaintiff’s Complaint. Defendants designed, 23 manufactured and distributed numerous orthopedic products, including the DePuy LPS 24 Diaphyseal Sleeve (“the “Product”).1 (Dkt. no. 1 at 2-3.) On September 14, 2009, 25 Plaintiff underwent left knee surgery that involved revision of a failed total knee 26 arthroplasty with distal femoral replacement by implementation of the Product. (Id. at 27 28 1 The Complaint names DePuy and its affiliates, who allegedly had connections with DePuy or the design, manufacturing or marketing of the Product. (Dkt. no. 1 at 23.) 1 14.) On July 13, 2011, Plaintiff had revision surgery — “a left-sided revision of the 2 distal femoral replacement” — to remove and replace the Product. (Id.) On February 3 15, 2013, Defendants initiated a Class I recall of the Product.2 (Id. at 6.) Plaintiff 4 alleges that Defendants are aware that the Product is defective. (Id.) 5 On February 4, 2015, Plaintiff filed his Complaint asserting claims for strict 6 liability, negligence, breach of express warranty, breach of implied warranties and 7 failure to warn. (Dkt. no. 1.) In response, DePuy moved to dismiss, arguing that 8 Nevada’s two year statute of limitations bars Plaintiff’s claims. 9 III. LEGAL STANDARD 10 A court may dismiss a plaintiff’s complaint for “failure to state a claim upon 11 which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pleaded complaint 12 must provide “a short and plain statement of the claim showing that the pleader is 13 entitled to relief.” Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 14 555 (2007). While Rule 8 does not require detailed factual allegations, it demands 15 more than “labels and conclusions” or a “formulaic recitation of the elements of a 16 cause of action.” Ashcroft v. Iqbal, 556 US 662, 678 (2009) (quoting Twombly, 550 17 U.S. at 555). “Factual allegations must be enough to raise a right to relief above the 18 speculative level.” Twombly, 550 U.S. at 555. Thus, “[t]o survive a motion to dismiss, a 19 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 20 relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. 21 at 570). 22 In Iqbal, the Supreme Court clarified the two-step approach district courts are to 23 apply when considering motions to dismiss. First, a district court must accept as true 24 all well-pleaded factual allegations in the complaint; however, legal conclusions are not 25 2 26 27 28 DePuy offers the recall notice to argue that the recall date is January 4, 2013. (Dkt. no. 19 at 3.) Under “FDA Comments in the recall notice, the FDA states that “[o]n Jan. 4, 2013, DePuy issued an Urgent Medical Device Recall informing hospitals and surgeons of the problem and to immediately stop distributing or using the recalled lots.” (Dkt. no. 19-1 at 3.) 2 1 entitled to the assumption of truth. Id. at 678-79. Mere recitals of the elements of a 2 cause of action, supported only by conclusory statements, do not suffice. Id. at 678. 3 Second, a district court must consider whether the factual allegations in the complaint 4 allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the 5 plaintiff’s complaint alleges facts that allow a court to draw a reasonable inference that 6 the defendant is liable for the alleged misconduct. Id. at 678. Where the complaint fails 7 to “permit the court to infer more than the mere possibility of misconduct, the complaint 8 has alleged — but it has not ‘shown’ — ‘that the pleader is entitled to relief.’” Id. at 679 9 (quoting Fed. R. Civ. P. 8(a)(2)) (alteration omitted). When the claims in a complaint 10 have not crossed the line from conceivable to plausible, the complaint must be 11 dismissed. Twombly, 550 U.S. at 570. A complaint must contain either direct or 12 inferential allegations concerning “all the material elements necessary to sustain 13 recovery under some viable legal theory.” Id. at 562 (quoting Car Carriers, Inc. v. Ford 14 Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)). 15 IV. DISCUSSION 16 Defendant raises two arguments in support of dismissal: (1) Nevada’s two year 17 statute of limitations applicable to claims involving damages for personal injuries 18 applies to bar all of Plaintiff’s claims, and (2) the statute of limitations accrued from the 19 date of Plaintiff’s revision surgery (July 13, 2011), at the latest. Plaintiff counters that 20 Nevada’s four year statute of limitations applies because Plaintiff’s claims “all relate to 21 the design, testing, manufacture, and warnings associated with the Product,” and the 22 statute of limitations accrued from the date of the recall notice, February 4, 2013. The 23 Court will address each argument in turn. 24 A. 25 Nevada law prescribes different commencement periods depending on the 26 nature of the action involved. See NRS § 11.190. NRS § 11.190(4)(e) provides for a 27 two year statute of limitations on “an action to recover damages for injuries to a person 28 . . . caused by the wrongful act or neglect of another.” However, NRS § 11.220 Applicable Statute of Limitations 3 1 establishes a four year commencement period in an action for relief that is not 2 otherwise addressed in other sections of the statute.3 In determining which statute of 3 limitations applies under Nevada law, the court should examine “[t]he gravamen of 4 [the] action” (Blotzke v. The Christmas Tree, Inc., 499 P.2d 647, 647 (Nev. 1972)), and 5 “look to the real purpose of the complaint . . . and not to what the pleader says it is” 6 (Hartford Ins. Group, 484 P.2d at 571). 7 Defendant argues that the “gravamen” of Plaintiff’s claims involve damages for 8 personal injuries sounding in tort, citing to Plaintiff’s allegations that he “has suffered 9 and continues to suffer very serious bodily injuries.” (Dkt. no. 19 at 7.) Defendant relies 10 on cases where the Nevada Supreme Court applied NRS § 11.190(4)(e)’s two year 11 statute of limitations period because it found the claims sound in tort, not in contract. 12 See, e.g., Walz v. Hood, 487 P.2d 344 (Nev. 1971) (affirming application of the two 13 year, rather than four year, statute of limitations period governing action for damages 14 for injuries to persons based upon contract where passenger in a taxicab allegedly 15 sustained injuries even though the complaint alluded to claims based on implied legal 16 duties owed by owner of taxicab company to passenger). While the Court agrees that 17 Plaintiff’s claims sound in tort, not in contract, this distinction does not automatically 18 result in the application of the shorter statute of limitations period here. Indeed, NRS § 19 11.220’s catchall statute is not limited to actions sounding in contract and could govern 20 actions sounding in tort as long as the action is not otherwise covered in other 21 statutes. 22 Defendant contends that Nevada courts have found similar claims, when 23 asserted in the context of a personal injury suit, to be governed by the shorter two year 24 limitations period for personal injury claims. (Dkt. no. 19 at 5-6.) Of the cited decisions, 25 the only case that directly supports Defendant’s argument is Campos v. New Direction 26 Equip. Co., Inc., No. 2:08-cv-00286-LRH-RJJ, 2009 WL 114193, at *3 (D.Nev. Jan. 16, 27 28 3 NRS § 11.220 is referred to as the “catchall statute.” See Hartford Ins. Grp. v. Statewide Appliances, Inc., 484 P.2d 569, 571 (Nev. 1971). 4 1 2009).4 The plaintiff in Campos sustained severe injuries while using defendant’s 2 allegedly defective machine. The court found that the plaintiff’s claim for strict product 3 liability falls within Nevada’s two year statute of limitations for personal injury action. 4 The court distinguished Fisher v. Prof’l Compounding Ctrs. of America, Inc., 311 5 F.Supp.2d 1008, 1017 (D. Nev. 2004), which stated that Nevada’s catchall statute — 6 providing for a four year limitations period — applies to product liability cases. 7 Because the question of which statute of limitations applies depends on the nature of 8 the action, the Court declines to follow Campos or Fisher. 9 Instead, the Court will “look to the real purpose of the complaint” (Hartford Ins. 10 Group, 484 P.2d at 571) to assess which statute of limitations governs Plaintiff’s 11 claims. In support of his strict liability claim, Plaintiff alleges that the Product “was 12 defective as to design, testing, manufacture and warnings, causing the DePuy LPS 13 Diaphyseal Sleeve to be in a dangerous and defective condition that made it unsafe 14 for its intended use.” (Id. at 15.) Plaintiff further alleges that Defendants knew or 15 reasonably should have known that the Product was defective and failed to warn of the 16 potential hazards associated with the Product. (Id.) Moreover, Plaintiff alleges that as a 17 result of the defective condition of the Product and Defendant’s failure to warn, Plaintiff 18 “suffered serious physical injury, harm, damages and economic loss and will continue 19 to incur such harm, damages and economic loss in the future.” (Id. at 15, 17, 19.) 20 Accepting these allegations as true, the Court agrees with Defendant that the gist of 21 Plaintiff’s claims involves “physical injury” that he suffered and will continue to suffer. 22 4 23 24 25 26 27 28 Defendant’s cited decision of Bender v. Clark Equip. Co., 897 P.2d 208 (Nev. 1995) does hold that the two year statute of limitations applies in a products liability action where the plaintiff sustained injury caused by an allegedly defective forklift. The Bender case involved amendment of the complaint to name a correct defendant after the statute of limitations had expired. Defendant argues that the unpublished decision of Crabb v. Harmon Enters., No. 60634, 2014 WL 549834 (Nev. Feb. 10, 2014) offers persuasive authority because the facts in that case are similar. However, Crabb is factually distinguishable because the court found that the plaintiff did not plead a products liability claim but only pleaded breach of contract and negligence claims arising out of an incident where the plaintiff allegedly suffered injury from food poisoning. Id. at *1-*2. 5 1 Even Plaintiff acknowledges that he “alleges he was physically injured by the defective 2 Product.” (Dkt. no. 23 at 8.) NRS § 11.190(4)(e) unambiguously provides a two year 3 statute of limitations for “an action to recover damages for injuries to a person.” 4 Because Plaintiff’s claims are to recover damages for physical injury to himself, 5 Plaintiff’s claims are subject to this shorter two year limitations period. 6 B. 7 Nevada recognizes the “discovery rule,” which is an exception to the general 8 rule that “a cause of action accrues when the wrong occurs and a party sustains 9 injuries for which relief could be sought.” Petersen v. Bruen, 792 P.2d 18, 20 (Nev. 10 1990). “Under the discovery rule, the statutory period of limitations is tolled until the 11 injured party discovers or reasonably should have discovered facts supporting a cause 12 of action.” Id. In the context of a medical injury, “a patient discovers his legal injury 13 when he knows or, through the use of reasonable diligence, should have known of 14 facts that would put a reasonable person on inquiry notice of his cause of action.” 15 Massey v. Litton, 669 P.2d 248, 252 (Nev. 1983). Moreover, the question of when the 16 plaintiff knew or in the exercise of proper diligence should have known of facts 17 constituting the elements of his cause of action is one of fact for the jury to resolve. 18 Siragusa v. Brown, 971 P.2d 801, 806 (Nev. 1998). “Dismissal on statute of limitations 19 grounds is only appropriate ‘when uncontroverted evidence irrefutably demonstrates 20 plaintiff discovered or should have discovered’ the facts giving rise to the cause of 21 action. Bemis v. Estate of Bemis, 967 P.2d 437, 440 (Nev. 1998) (quoting Nevada 22 Power Co. v. Monsanto, 955 F.2d 1304, 1307 (9th Cir. 1992). Accrual of the Statute of Limitations 23 Defendant argues that the statute of limitations accrued from Plaintiff’s revision 24 surgery when he was on inquiry notice of his possible claims.5 Defendant relies on 25 Plaintiff’s allegations as to what his physician noted during the July 13, 2011, revision 26 27 28 5 To the extent Defendant contends that Plaintiff had inquiry notice as of January 4, 2013, a material issue of fact exists as to whether Plaintiff knew or should have known that DePuy “issued an Urgent Medical Device Recall informing hospitals and surgeons of the problem” with the Product. (Dkt. no. 19 at no. 3.) 6 1 surgery to argue that Plaintiff was made aware of the problem with the Product at that 2 time. (Dkt. no. 19 at 9.) Plaintiff alleges that during the revision surgery, Plaintiff’s 3 physician noted the following: “a dissociation between the distal femoral replacement 4 and the locking bolt that attached the distal portion of the distal femoral component” 5 and the “femoral component was spinning freely, as the distal locking bolt dissociated 6 from the distal portion” of the prosthesis. (Dkt. no. 1 at 14.) However, the physician’s 7 observation does not clearly explain that the revision surgery was necessitated by any 8 problem or defect with the Product itself, as opposed to how the Product was 9 implanted or some other reason, to put Plaintiff on inquiry notice. The physician’s note, 10 without more, would not put a reasonable person on inquiry notice of his possible 11 causes of action. Thus, the Court finds that a material issue of fact exists as to 12 whether Plaintiff knew or should have known of the facts giving rise to his claim by July 13 13, 2011. 14 V. CONCLUSION 15 The Court notes that the parties made several arguments and cited to several 16 cases not discussed above. The Court has reviewed these arguments and cases and 17 determines that they do not warrant discussion as they do not affect the outcome of 18 the Motion. 19 20 21 It is therefore ordered that Defendant’s Motion to Dismiss (dkt. no. 19) is denied. 16. DATED THIS 3rd day of March 2016. 22 23 MIRANDA M DU MIRANDA M. UNITED STATES DISTRICT JUDGE 24 25 26 27 28 7