Devito v. Biomet, Inc. et al, No. 5:2023cv00185 - Document 36 (E.D.N.C. 2024)

Court Description: ORDER granting 13 Motion to Dismiss for Failure to State a Claim. Signed by District Judge Terrence W. Boyle on 3/25/2024. (Stouch, L.)

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Devito v. Biomet, Inc. et al Doc. 36 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRJCT OF NORTH CAROLINA WESTERN DIVISION No. 5 :23-CV-OO 185-BO THOMAS DEVITO, ) ) Plaintiff, V. ) ) ) BIOMET, INC.; BIOMET OTHOPEDICS, ) LLC; BIOMET U.S. RECONSTRUCTION , ) LLC; BIOMET MANUFACTURING , LLC;) ZIMMER HOLDINGS , INC.; ZIMMER, ) IN C.; ZIMMER BIOMET HOLDINGS , ) INC. ; ROBERT VAVRINA; and NORTH ) CAROLINA DISTRIBUTORS, ) Defendants. ORDER ) ) Before the Court is Zimmer, Inc, Zimmer Holdings, Inc. and Zimmer Biomet Holdings, lnc. 's ("Zimmer defendants") motion to dism iss. [DE 13]. The motion is fully briefed and ready for decision. For the fo llowing reasons, the Court grants the Zimmer defendants ' motion to dismiss. BACKGROUND Plaintiff Thomas De Vito had hi s left and right hips replaced. He now clai ms both hipreplacement systems impl anted were defective. This order covers only De Vito ' s claims relating to the hip-replacement system implanted in his left-side-the Zimmer Durom Cup metal-on-metal hip replacement (" Durom Cup"). On 5 February 2008, a Durom Cup was implanted into DeVito's left-side. DeVito and his doctor chose the Durom Cup because they expected it to perform better and to last longer than other replacement systems . DeV ito, then 56 years o ld , wanted to co ntinue hi s active lifesty le. DeVito expected hi s qua lity of life wo uld improve. But after the replacement, he experienced severe pain and discomfort, resulting in his inabili ty to perform hi s dai ly li ving activities. In 2020, DeYito had the Durom Cup removed and replaced. For the new rep lacement system, a non metal-on-metal system was se lected because of "extensive metallosis fro m the metal prosthesis ." [D E 1-3 ~2 13]. T he rep lacement surgery revea led "extreme ly severe soft tissue destructi on co nsiste nt with AL VAL. ... [with] com pl ete destru ction of the posterior capsule and th e trochante r was nearl y bald ." [D E 1-3 ~ 2 13.] As a resu lt, DeVito alleges damages from past, prese nt, future pain and suffering; seve re and potentiall y perm anent injuries; emotio nal distress; di sabi lity; disfigurement; and economi c loss due to lost wages and medica l and mon itorin g expenses. [DE 1-3 ~ 2 19]. In his comp laint, Devito alleges claims agai nst the Zimmer defendants for ( I) negligent, grossly negligent, wanton , and reckless co ncea lment; (2) negli gent, gross ly negli gent, wanton, reckless and wi llful mi sconduct by defendants' fa ilure to warn ; (3) negligent, gross ly negligent, wi llfu l and wo nto n conduct w ith respect to des ign and manufacturi ng defects ; (4) breach of implied warranty; (5) breac h of express warra nty; (6) negli gent mi srepresentation ; (7) neg ligence; (8) unfair and deceptive trade practices in violation of N .C . Gen. Stat. 75-1.1; (9) unjust enrichm ent; ( 10) fraud ; an d (11) puniti ve damages. On 22 Feb ruary 2023 , DeV ito filed hi s comp laint 111 Wake Co unty Superior Court. [D E 1-3]. On IO April 2023 , the Zi mmer defendants and the other non -fictious defendantsBiomet Inc. , Biomet Orthopedics, LLC, Biomet U.S. Reconstru ction, LLC, Biomet Manufacturing, LLC, and Robe rt Vavrina-removed the acti on under 28 U. S.C. §§ I 332(a), 144 1, and 1446. [DE I]. De Vito did not oppose removal. 2 On 17 April 2023, Zimmer moved to dismi ss all claims against them for failure to state a claim for relief, filing a memorandum in support. [DE 13, 14] . Zimmer argues that De Vito 's claims are barred by the North Carolina statute of repose governing products liability actions at the time De Vito's Durom Cup was purchased and implanted . De Vito contests the applicability of the statute of repose. De Vito argues that he fall s within an exception for latent diseases. [DE 24]. The motion to dismiss fully briefed, this matter is ripe for deci sion. DISCUSSION A Ru le I 2(b)(6) motion to dismiss focuses on th e pleading requirem ents under the Federal Rul es. " Rul e 8(a)(2) requires only a short and plain statement of th e claim showing the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the gro unds upon which it rests ." Bell At!. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (cleaned up) (internal quotation marks and citations omitted). Although a complaint does not need detailed factual allegations to survive a I 2(b)(6) moti o n to di smi ss, the complaint must show an entitlement to relief through more than labels, conclusions, and formulaic recitati ons of the elements of a cause of action. See, e.g. , Barrett v. Pae Gov 't Servs., Inc., 975 F .3 d 416, 434 (4th Cir. 2020). The " [t]actual a llegations must be enough to rai se a ri g ht to relief about the spec ulati ve level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. That is, " [the] co mplaint must contain sufficient factual matter, accepted as true, to 'state a claim to re lief that is plausible on its face .'" Ashcroft v. Iqbal, 556 U.S . 662 , 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570 , 127 S.Ct. 1955). Because a Rule I 2(b )(6) motion tests only the sufficiency of the complaint; " it do es not ... ' reso lve contest surrounding the facts, the merits of a claim, or the app li cabi lity of defenses .' " King v. Rubenstein, 825 F.3d 206, 214 (4th Cir.2016) (q uoting Edwards v. City of Goldsboro , 178 3 F.3d 23 1, 243 (4th Cir. 1999)). "So the district co urt mu st accept as tru e all we ll -p leaded allegations and draw all reasonab le factual inferences in plaintiffs favo r. " Mays v. Sprinkle, 992 F.3d 295 , 299 (4th Cir. 202 1). Because federa l jurisdiction here rest on diversity 1, the Co urt looks to North Caro lina law to determine the gove rnin g substanti ve law. See Klaxon Co . v. Stentor Elc. Mfg., 3 13 U.S. 487, 496-97, 61 S.Ct. I 020, 85 L. Ed. 14 77 ( 194 1); Towers Watson & Co. v. Nat 'l Union Fire Ins. Co. of Pittsburgh, 67 F .4th 648 , 653 ( 4th Cir. 2023). No hard look necessary: the parties do not dispute that under No rth Caro lina's cho ice of law rules, No rth Caro lina law gove rn s. See [DE 14 at 4-5] ; [DE 24]. So North Caro lina law w ill govern the ana lysis. See Minnie/and Priv. Day Sch. , Inc. v. Applied Underwriters Captive Risk Assurance Co. , 913 F.3 d 409, 4 15 n.4 (4th Cir.20 19). The Z immer defendants argue that North Caro lina's statute of repose fo r products liabi li ty actions bars De Vito's cla ims. A statute of repose "serves as an unyielding and absolute barrier that prevents a pla intiffs ri ght of action even before hi s cause of acti on may accru e .... " Black v. Littlejohn, 3 12 N.C. 626,633 , 325 S.E.2d 469, 475 ( 1985). The statute of repose is a condition precedent to an action itself. Boudreau v. Baughman, 322 N.C. 331 , 340, 368 S.E.2d 849, 857 ( 1988). Unlike ord inary statutes of limitation, which " merely make[] a c laim un enfo rceab le," Id., a statute of repose defines the substanti ve right: if the cla im is not brought within the tim e period 1 De Vito, a North Carolina resident, asserts claims against North Carolina distrib utors without further identification. If those defendants were parties, comp lete diversity would be destroyed , and this Court would lack subject matter jurisdiction under 28 U.S.C. § I 332(a). 28 U.S.C.§ 144 1(b), however, directs courts to disregard "the citizenship of defendants sued under ficti ti ous names. So this Court will disregard the fictious defendants. See Waker v. Bankers Life Ins . Co. , No. 7: 18CV000 118, 20 18 WL 2347 I 00, at *3 (W.D. Va. May 23 , 20 I 8) (co ll ecting cases disregarding fictious defendatns); Johnson v. Southern Industrial Constructors, No. 5 :2I-cv-00 165 , 202 1 WL 2 102726, at *3 (D.S.C. May 25 , 202 1); Hesed-El v. Bryson, 1:21-CV-00305 , 2022 WL 4287975 , at* 3 (W.D.N.C. Jul. 12, 2022), Report & Recommendation adopted, No . I: I 2-CV-00305, 2022 WL 3370797 (W.D.N.C. Aug. 16, 2022). 4 set by the statute of repose, the co ndition precedent is not sati sfied and the plaintiff " literall y has no cause of action," Id. at 341 (interna l quotations and citation om itted). North Caro lina's statute of repose for products li ab ility actions bars a ll "actio n[s] for the recovery of damages for personal injury ... based upon or arising out of any a ll eged defector any fa ilure in re lati on to a product." N.C. Gen. Stat. § 1-46. 1. The window to co mmence an action under this substantive limitation has fluctuated. Currently, § 1-46. 1 bars all such actio ns " brought more than 12 years after the date of initial purchase for use or co nsumpti on." But its predecessor, § l-50(a)(6), bars all act ion s " brough more th an six years after the date of initial purchase fo r use or consumpti on." When replacing§ l-50(a)(6)'s six years w ith § 1-46.1. ' s twelve years, the General Assembl y made clear§ 1-46. 1' s twelve years app li es onl y to causes of actio n accruing on or after I October 2009. See An Act effective Aug. 5, 2009, § 3, 2009 N.C. Sess. Laws 809. The Durom Cup was im planted during DeVito ' s left-side hip replacement surgery on 5 February 2008 . That date is " properly considered the date of initial purchase for use or consumption for the purpose of the statute of repose." Fulmore v. Johnson & Johnson, 58 1 F.Supp.3d 752, 756 (E.D.N.C . 2022) ; see also Cramer v. Ethicon, Inc. , I :20-CV-95, 202 1 WL 243872, at *4 (W.D.N.C. Jan. 25 , 202 1) (findin g latest date of purchase of pelvic mesh for use or consumption was date of implantation surgery); In re. Mentor Corp. Obtape Transobturator Sling Prods. Liab. Litig. , 4: 12-CV-355 , 20 16 WL 873854, at* (M. D. Ga. Mar. 4, 20 16) (appl ying North Caro lina law and concluding date of implantatio n co ntrolled) . Thus, § l-50(a)(6)'s six years applies to a ll of De Vito ' s claims for damages ari si ng from the Durom C up. Because § 1-50(a)(6) ' s six-year wi ndow app lies, DeVito " must prove the cond iti on precedent that the cause of actio n is brought no more than six years after the date of initial purchase of the product for use or consumpti on. " Bolick v. Am. Barmag Corp., 306 N.C . 364, 370, 293 5 S.E.2d 415 ( 1982). De Vito did not file this action until 22 February 2023 , more than fifteen years after the Durom Cup was implanted . Thus, the statute of repose exti ngui shed DeYito ' s claims against the Z imm er defend ants long before he filed su it. They must be dismissed unless an exception app lies . One does, DeVito argues. Spec ificall y, that § l-50(a)(6) does not app ly to his c la ims because long-term exposure to metal debris from the Durom Cup resulted in metallosis, a buildup of metal particles in the surroundin g tissue. A condition, co ntends DeVito, that places him w ithin the latent disease exception recognized by the North Carolina Supreme Court in Wilder v. Amatex Corp., 314 N.C. 550, 336 S.E.2d 66 ( 1985). Although the North Caro lina Supreme Court in Wilder recognized the latent disease exception in when interpreting a different statute of repose, see 314 N .C. at 56 1,336 S.Ed.2d at 72-73 , the exception applies to N.C . Gen. Stat.§ 1-50(6). Hyer v. Pittsburgh Corning Corp., 760 F.2d 30, 33-34 (4th Cir. 1986) ; Bullard v. Dalkon Shield Claimants Tr., 74 F.3d 53 1, 533 n.4 (4th C ir. 1996); Gardner v. Asbestos Corp., Ltd. , 634 F.Supp. 609, 6 11-1 2 (W.D.N.C. 1986) (Sentelle, J.); but see Klein v. DePuy, Inc. , 506 F.3d 553 , 557-59 (7th Cir.) (rejecting application of Wilder' s disease exception to § l -50(a)(6)). In Wilder, the North Caro lina Supreme Cou rt distinguished " [d]iseases . . . [that] normally develop over long periods of time after multiple exposu res to offend ing substances which are thought to be causative agents[]" from injuries where " it [is] possible to identify a single point in time when plaintiff was first injured." 3 14 N.C. at 557, 336 S.E.2d at 76. T he key distinction is that w ith diseases " [i]t is impossible to identify any particular exposure as the first injury ." Id. (internal quotation marks omitted) . The difficulty with " [d]iseases such as asbestosis, sili cosis, and chronic obstru ctive lung di sease[,]" is th at it is difficult to pinpoint or estab li sh that the disease was caused by a product because "one or even multiple exposures to an offendin g substance .. . 6 may not constitute an injury." Id. (citing Borel v. Fibreboard Paper Prods. Corp., 493 F.2d I 076, I 083 (5 th Cir. 1973) ( explaining that the difficulty in identify ing w hi ch expos ure to as bestos du st caused asbestosis because the disease is the cumul ative resu lt of many exposures to asbestos dust)). The injuries alleged here do not fit within Wilder's defin ition of a disease. DeYito has alleged that he experi enced seve re pa in and discomfort fo llowing im p lantation, soft-tissue destruction, and other damage to the hip joint beca use of meta llos is caused by the Du rom Cup. [DE 1-3 ~~ 2 12-2 13]. DeVito ' s alleged injuries are compli cations or symptoms fro m the implantation of an a llegedl y defective meta l-on-metal hip replacement system, and these injuries and the ir traceability to single definite act-the 05 February 2008 imp lantati on-d isting ui shes them from any latent disease as defi ned in cases app ly ing that exce pti on . See Fulmore, 58 1 F.Supp.3d at 758; Cramer, 202 1 WL 243872, at * 5 (holdin g that urinary tract and bladder infect ions fro m defective pelvic mesh were not "within [the] narrow category of latent di seases[]" recogni zed in Wilder because " all eged injuries [were] attributab le to a sing le eve nt: [p]l ainti ffs im plantation with the [pelvic mesh]."); In re. Mentor Corp., 20 16 WL 873854, at* 3 (conc luding latent disease excepti on does not app ly because p laintiffs c lai m " is not a c laim arising from di sease that developed over many years after multipl e exposures to a tox ic substance; it is a c lai m ar ising from comp li cations she co ntends were caused by a med ica l device that was impl anted in her body ."). Under De V ito' s a llegations, not only is it imposs ible not to tie hi s injuries to single eve nt but De Vito 's a llegations of exposure further distingui sh hi s inj uri es fro m the Du rom Cup to those recognized as latent di seases in Wilder and the federa l cases app ly ing that definition. See Hyer, 790 F.2d 30 (asbestosis from over thirty years of work as in sul ato r); Guy v. E.I. DuPont de Nemours & Co., 792 F.2d 457 (4th C ir. 1986) (COPD from twenty-five years of expos ure to 7 diisocyanate); Bullard, 74 F.3d at 535-36 (pe lvic inflammatory diseases whic h " may have been contracted as a result of the introduction of a foreign substance" (quoting Covalt v. Carey Canada, Inc., 543 N.E.2d 382,384 (Ind . 1989)); Stahle v. CTS Corp., 817 F.3d 96 (4th Ci r. 2016) (leukemia from nine years of downstream exposure to toxic so lvents). Put simp ly, De Vito ' s allegations of metal exposure and the accompany ing injuries are of a different kind than those causati ve agents in cases where courts have recognized latent diseases within Wilder' s defin ition . In sum , § l-50(a)(6) exti nguishes any actio ns for damages caused by a defective product unless such action is brought wi thin six years of that product' purchase for use or co nsumption. There is a limited exception for latent diseases because they develop over long periods of time from many possible exposures-some causative, others benign-and it is impossible to pinpoint the moment in time where the defendant was first exposed. That exception does not app ly to DeVito. DeYito can pinpoint the exact moment he was first injured: w hen the Durom Cup was implanted into his left hip. And DeVito alleges immediate damage from exposure to metal debris from the defective Durom Cup . Thus, the disease exception does not app ly and any action for damages aga inst the Zim mer defendants was exting ui shed by the statute of repose long before DeVito filed this action. CONCLUS ION For all these reasons, the Z immer defendants' motion to dismiss [D E 13] is GRANTED . SO ORDERED, this J..S~ay of March 2024. ~Ed~ UNITED STATES DISTRICT JUDGE 8

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