Rhoton et al v. 3M Company et al

Filing 20

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 12/3/15. (SAC )

FILED
2015 Dec-03 PM 03:43
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JAMES RHOTON, et al,

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Plaintiffs,
v.
3M Company, et al.,
Defendants.

CIVIL ACTION NO.
2:15-cv-1306-WMA

MEMORANDUM OPINION
On August 3, 2015, plaintiffs James Rhoton and Sarah Rhoton
(“the Rhotons”) filed this action against defendants 3M Company
(“3M”) and Arizant Healthcare Inc. (“Arizant”) seeking damages
under several theories for alleged injuries sustained when Mr.
Rhoton developed a MRSA infection after surgery in which a Bair
Hugger Forced Air Warming device (“Bair Hugger”) manufactured by
defendants was used. (Doc. 1).

On September 1, 2015, defendants

filed a joint motion to dismiss the complaint. (Doc. 6).

On

September 18, 2015, the Rhotons filed a response (Doc. 12), and
defendants filed their reply on September 30, 2015 (Doc. 15).

The

parties have thoroughly briefed the issues.
For the reasons stated below, defendants’ motion will be
partially granted and partially denied.
I.

Statute of Limitations
“A statute of limitations bar is an affirmative defense, and

plaintiffs are not required to negate an affirmative defense in

1

their complaint.” La Grasta v. First Union Sec., Inc., 358 F.3d
840, 845

(11th

Cir.

2004)

(quotes

omitted).

Therefore,

the

“granting of a motion to dismiss on statute of limitations grounds
is appropriate if it is apparent from the face of the complaint
that the claim is time-barred.” Holt v. Valls, 395 F. App'x 604,
606 (11th Cir. 2010).
"The very basic and long settled rule of construction of
[Alabama] courts is that a statute of limitations begins to run
. . . as soon as the party in whose favor it arises is entitled to
maintain an action thereon." Wheeler v. George, 39 So. 3d 1061,
1084

(Ala.

2009)(italics

omitted).

In

Alabama,

“[a]n

action

alleging negligence, wantonness, or liability under the AEMLD must
be brought within two years after the cause of action accrued.”
Smith v. Medtronic, Inc., 607 So. 2d 156, 159 (Ala. 1992) (citing
Ala. Code § 6-2-38(l )).

Similarly, the applicable statute of

limitations in Alabama for the various species of fraud is two
years. Jones v. Alfa Mut. Ins. Co., 1 So. 3d 23, 30 (Ala. 2008).
“The “discovery rule” in Alabama applies only to fraud actions.”
Utilities Bd. of City of Opp v. Shuler Bros., 138 So. 3d 287, 293
(Ala. 2013) (citing Ala. Code. § 6–2–3).

“The question of when a

plaintiff should have discovered fraud should be taken away from
the jury and decided as a matter of law only in cases in which the
plaintiff actually knew of facts that would have put a reasonable
person on notice of fraud.” Bryant Bank v. Talmage Kirkland & Co.,
2

2011 WL 11742121, at *6 (Ala. May 23, 2014).
Although the Rhotons do not give a specific date upon which
Mr. Rhoton’s MRSA infection developed, they do allege that the MRSA
infection and subsequent treatment occurred “within less than eight
months from the original [July 15, 2013] implant surgery.” (Doc. 1
at 2-3).
tort

Having filed this action on August 3, 2015, the Rhotons’

and

fraud

claims

are

limitations. (Doc. 1 at 1).

within

the

two

year

statute

of

While 3M and Arizant assert that the

MRSA infection must have occurred in “close proximity” to the
surgery and therefore occurred prior to August 3, 2013 (Doc. 6 at
9), this is conjecture unsupported on the face of the complaint and
thus

inappropriate

for

resolution

on

a

motion

to

dismiss.

Additionally, 3M and Arizant argue the Rhotons’ fraud claims arose
prior to August 3, 2013 because their complaint cites certain
studies published in 2009, 2011, and 2012 (Doc. 6 at 10-12),
however, the statute of limitations did not begin to run until Mr.
Rhoton’s infection related injuries arose thereby giving rise to
various causes of actions for fraud based on that particular
injury.

Because the applicable statutes of limitations do not bar

the Rhotons’ tort and fraud claims, defendants’ motion to dismiss
will be denied.
II.

Causation
On a Rule 12(b)(6) motion “a court must accept as true all of

the allegations contained in a complaint is inapplicable to legal

3

conclusions [,however,] [t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Courts “do

not require heightened fact pleading of specifics, but only enough
facts to state a claim to relief that is plausible on its face . .
. [where a plaintiff] nudge[s] their claims across the line from
conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007).
The Rhotons allege that the injuries suffered by Mr. Rhoton
were caused when a Bair Hugger unit manufactured by defendants
introduced contaminants into Mr. Rhoton’s open surgical wounds
resulting in a MRSA infection. (Doc. 1 at 2-3).

Specifically, the

Rhotons allege that between 2002 and 2009 defendants reduced the
efficiency of the device (Doc. 1 at 4) so that now the Bair Hugger
“is only capable of removing less than 65% of all such particles”
(Doc.

1

at

4),

which

“increases

bacterial

contamination

of

operating rooms or interrupts laminar airflow” (Doc. 1 at 6).
While defendants dispute these factual allegations and assert there
are a “myriad more plausible sources” of infection (Doc. 6 at 15),
“at

this

early

stage

of

litigation,

these

allegations

are

sufficient to avoid dismissal under Rule 12(b)(6).” Houston v.
Bayer Healthcare Pharm., Inc., 16 F. Supp. 3d 1341, 1348 (N.D. Ala.
2014).

Defendants fail to identify any meaningful distinction

between the plausibility of the causal connection in Houston and

4

the Bair Hugger device and injuries alleged in this case.
like Houston,

the

Rhotons

meet

the

test

of

Rather,

plausibility

and

defendants’ factual counterpoint is best left to determination on
summary judgment1 or by a jury.

Defendants’ motion to dismiss will

be denied.
III. Breach of Warranty
Under the Alabama Commercial Code, an express warranty is
created by “[a]ny affirmation of fact or promise made by the seller
to the buyer which relates to the goods and becomes part of the
basis of the bargain [or] [a]ny description of the goods which is
made part of the basis of the bargain.” Ala. Code § 7–2–313.
While the Rhotons voluntarily abandon their implied warranty
claims in Counts Four and Five, they maintain that their express
warranty claim in Count Three properly states a basis for relief.
(Doc. 12 at 12-15).

The Rhotons allege that defendants expressly

represented that the Bair Hugger

was “safe and fit for its

intended purpose, that it was of merchantable quality, that it did
not produce any dangerous side effects, and that it was adequately
tested.” (Doc. 1 at 10). While defendants argue that the complaint
fails to identify any specific statement to form the “basis of the

1

Defendants’ causation argument relies in part on Dowdy v.
Suzuki Motor Corp., 567 F. App'x 890, 892 (11th Cir. 2014), for
the proposition that causation requires a plaintiff to rise above
“supposition or speculation”, however, as the Rhotons accurately
point out, the Eleventh Circuit was reviewing a decision on a
motion for summary judgment.
5

bargain” (Doc. 6 at 15-16), the Rhotons support their express
warranty

claim

by

alleging

that

defendants

“actively

and

aggressively marketed the Bair Hugger as safe in both general and
orthopedic

surgeries.”

See

Houston,

16

F.

Supp.

3d

at

1349

(“[p]laintiff has alleged facts to support her express warranty
claim, albeit by the skin of her teeth”). Therefore, while the
Rhotons concede that their implied warranty claims fail to state a
proper claim for relief (Doc. 12 at 12-13), their express warranty
claim satisfies Rule 8(a) and defendants’ motion to dismiss will be
denied.2
IV.

Fraud
In

Alabama,

“[t]he

elements

2

of

fraud

are:

(1)

a

Although the parties address the sufficiency of the claim
under Fed. R. Civ. Proc. 8, the parties are silent as to whether
certain claims are preempted by federal law. The Alabama Supreme
Court has addressed preemption of state law claims against FDA
regulated drug manufacturers, Wyeth, Inc. v. Weeks, 159 So. 3d
649 (Ala. 2014), however, the question of federal preemption
relating to medical device manufacturers is more ambiguous.
Compare Medtronic, Inc. v. Lohr, 518 U.S. 470, 501-02 (1996)
(finding that negligence and strict-liability claims under
Florida state law against a medical device manufacturer were not
preempted) with Riegel v. Medtronic, Inc., 552 U.S. 312, 330
(2008) (finding negligence, strict liability, and implied
warranty claims under New York common law against a medical
device manufacturer were preempted). In the preemption context,
the FDA itself has also expressed concern about state common law
actions conflicting with its regulations. See Requirements on
Content and Format of Labeling for Human Prescription Drug and
Biological Products, 71 Fed. Reg. 3922-01 (Jan. 24, 2006)
("[s]tate law actions can rely on and propagate interpretations
of the act and FDA regulations that conflict with the agency's
own interpretations and frustrate the agency's implementation of
its statutory mandate").
6

misrepresentation

of

a

material

fact,

(2)

made

willfully

to

deceive, recklessly, without knowledge, or mistakenly, (3) that was
reasonably relied on by the plaintiff under the circumstances, and
(4) that caused damage as a proximate consequence.” Brushwitz v.
Ezell, 757 So.2d 423, 429 (Ala. 2000).

Under Federal Rule of Civil

Procedure 9(b), where a plaintiff’s complaint alleges “fraud or
mistake, a party must state with particularity the circumstances
constituting fraud or mistake.” Specifically, in the Eleventh
Circuit under this heightened pleading standard a plaintiff must
allege

“(1)

the

misrepresentations

precise

made;

(2)

statements,
the

time,

documents,

place,

and

or

person

responsible for the statement; (3) the content and manner in which
these statements misled the Plaintiffs; and (4) what the defendants
gained by the alleged fraud.” Am. Dental Ass'n v. Cigna Corp., 605
F.3d 1283, 1291 (11th Cir. 2010).

However, “[l]ike the Iqbal

standard, this is not a hard-and-fast test, but can vary based on
the nature of the claim asserted.” Houston, 16 F. Supp. 3d at 1349.
Because the Rhotons’ fraud claims in Counts Seven, Eight, and
Nine

are

against

medical

device

manufacturers,

it

would

be

erroneous for the court to “take an overly rigid view of the [Rule
9] formulation.” Id. at 1350.

Instead, defendants “may be held

liable for fraud or misrepresentation (by misstatement or omission)
based on information and warning deficiencies on a [device’s or]
drug's labeling.” Id. (citation omitted).

7

The Rhotons adequately

allege reliance through their physician, a learned-intermediary,
who relied upon defendants’ representations “through the labeling,
advertising,

marketing

materials,

seminar

presentations,

publications, notice letters, and regulatory submissions.” (Doc. 1
at 13, 14, and 15).

These “cases involving complex products, such

as those in which pharmaceutical companies are selling prescription
drugs, the learned intermediary doctrine applies. . . [and] the
adequacy of the defendant's warning is measured by its effect on
the physician, . . . to whom it owed a duty to warn, and not by its
effect on [the consumer.” Wyeth, Inc. v. Weeks, 159 So. 3d 649, 673
(Ala. 2014) (quoting Toole v. Baxter Healthcare Corp., 235 F.3d
1307, 1313–14 (11th Cir. 2000)).

Further, as a complex medical

device subject to certain FDA approval requirements, the Rhotons
adequately allege that defendants had a duty to disclose and warn
about the safety of the device. (Doc. 1 at 14, 16, 18).

These

medical device and drug manufacturer cases also often involve “FDA
approval requirements” whereby a plaintiff can “base her fraud and
misrepresentation claims on the defendant manufacturer's breach of
its duty to warn about the risks associated with the long-term use
of the drug in its labeling.” Houston, 16 F. Supp. 3d at 1350
(quotation omitted).

Therefore, defendants motion to dismiss

should be denied because the Rhotons’ fraud claims as contained in

8

Counts Seven, Eight, and Nine, satisfy Rule 9.3
V.

Loss of Consortium
In Alabama, a loss of consortium claim “is derivative of the

claims of the injured spouse . . . [whereby the] loss-of-consortium
claim must fail if [the direct] claims fail.” Flying J Fish Farm v.
Peoples Bank of Greensboro, 12 So. 3d 1185, 1196 (Ala. 2008)
(citing Ex parte Progress Rail Servs. Corp., 869 So.2d 459, 462
(Ala. 2003) (“Even if the claims alleging loss of consortium and
loss of services could otherwise be legally cognizable, they are
derivative of, and dependent upon the outcome of, the direct
claim”)).

Because the Rhotons’ other claims survive defendants’

motion to dismiss, the derivative loss of consortium claim as
stated in Count Ten likewise survives dismissal.

Defendants’

motion as to Count Ten will be denied.
VI.

Punitive Damages
“[T]here is no separate cause of action in Alabama for

punitive damages.” Franklin Cnty. Sch. Bd. v. Lake Asbestos of
Quebec, Ltd., 1986 WL 69060, at *8 (N.D. Ala. Feb. 13, 1986).
Rather, punitive damages are only part of the relief prayed for in
a claim and the complaint must allege the requisite basis for the
3

In addition to possible federal preemption of state common
law claims that conflict with FDA regulations, state law claims
for fraud present an additional preemption question where such
fraud claims exist solely by virtue of FDA requirements. See
Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341, 353 (2001)
(finding implied federal preemption where fraud claims existed
"solely by virtue of the FDCA disclosure requirements").
9

award.

In Alabama, “[p]unitive damages may not be awarded in any

civil action . . . other than in a tort action where it is proven
by clear and convincing evidence that the defendant consciously or
deliberately engaged in oppression, fraud, wantonness, or malice
with regard to the plaintiff.” Ala. Code § 6-11-20.
The Rhotons include a prayer for punitive damages in Count Two
for negligence and wantonness (Doc. 1 at 10) and Count Six for
negligent misrepresentation (Doc. 1 at 13).

The Rhotons allege

that defendants continued “to manufacture, market, advertise, and
distribute the Bair Hugger after Defendants knew or should have
known of its adverse effects.” (Doc. 1 at 9).
the

Rhotons

allege

that

defendants

“have

More specifically,
been

aware

of

the

pathogenic contamination of the airflow paths of Bair Hugger
blowers

since

at

least

2009

.

.

.

[yet]

have

actively

and

aggressively marketed the Bair Hugger as safe in both general and
orthopedic surgeries despite their knowledge to the contrary.”
(Doc. 1 at 4).
allegations

are

Therefore, at the motion to dismiss stage, these
sufficient

to

support

a

prayer

for

punitive

damages. See Raley v. Bank of Am., N.A., 2014 WL 6684906, at *4
(N.D. Ala. Nov. 25, 2014) (“While these are unproven allegations,
they are sufficient at this stage to plausibly allege . . . [a]
wantonness claim would pass muster under Twombly and Iqbal if this
court should exercise its supplementary jurisdiction”).

10

CONCLUSION
Based on the foregoing, defendants’ motion will be granted
as to Counts Four and Five and said counts will be dismissed with
prejudice.

Defendants’ motion will be denied as to all other

counts.

Done this 3rd day of December, 2015.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

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