Reece et al v. Intuitive Surgical, Inc.

Filing 17

MEMORANDUM OPINION AND ORDER - Accordingly, the Court finds that Alabamas two year statute of limitations governs the Reeces claims. Those claims are timely under the Alabama statute. Therefore, the Court denies Intuitives motion to dismiss. Signed by Judge Madeline Hughes Haikala on 11/24/2014. (KEK)

FILED
2014 Nov-24 AM 11:15
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
HOMER LEE REECE, and
NELDA REECE
Plaintiffs,
v.
INTUITIVE SURGICAL, INC.
Defendant.

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) Case No.: 5:13-cv-01091-MHH
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MEMORANDUM OPINION AND ORDER
In this diversity action, plaintiffs Homer Lee Reece and Nelda Reece assert
claims against defendant Intuitive Surgical, Inc. under Tennessee law. The claims
relate to injuries that Mr. Reece sustained during a surgical procedure in which Mr.
Reece’s physician used Intuitive’s surgical robot known as the da Vinci Surgical
System. During the procedure, Mr. Reece suffered injuries that required a 44-day
hospitalization and multiple follow-up treatments.
Intuitive has filed a motion to dismiss.

The company contends that

Tennessee’s one-year statute of limitations bars the Reeces’ claims. (Doc. 7).
Employing Alabama’s choice of law rules, the Court finds that Alabama’s twoyear statute of limitations governs the Reeces’ claims. Therefore, the Reeces’
claims are timely.

I.

STANDARD OF REVIEW
“A statute of limitations bar is ‘an affirmative defense, and…plaintiff[s][are]

not required to negate an affirmative defense in [their] complaint.’” La Grasta v.
First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004) (citing Tregenza v.
Great American Communications Co., 12 F.3d 717, 718 (7th Cir. 1993)). A Rule
12(b)(6) dismissal “on statute of limitations grounds is appropriate only if it is
‘apparent from the face of the complaint’ that the claim is time-barred.” Bhd. of
Locomotive Engineers & Trainmen Gen. Comm. of Adjustment CSX Transp. N.
Lines v. CSX Transp., Inc., 522 F.3d 1190, 1194 (11th Cir. 2008) (citing Tello v.
Dean Witter Reynolds, Inc., 410 F.3d 1275, 1288 (11th Cir. 2005)).

When

deciding a Rule 12(b)(6) motion to dismiss, the Court must accept “the facts
alleged in the complaint as true” and must “draw[] all reasonable inferences in the
plaintiff’s favor.” Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010).
II.

PROCEDURAL AND FACTUAL BACKGROUND
In 2011, Mr. Reece learned that he had prostate cancer.

His doctors

recommended that he undergo a robotic procedure using Intuitive Surgical’s da
Vinci Surgical System to treat the cancer. (Doc. 1, ¶¶ 7, 9). Mr. Reece travelled
from his home in Bryant, Alabama to Memorial Hospital in Chattanooga,
Tennessee for the surgery. (Doc. 1, ¶¶ 1, 10). The surgery took place on June 9,
2011. During the procedure, Mr. Reece sustained injuries to his intestines and
2

small bowels “by the use of the da Vinci surgical robot manufactured and sold by .
. . Intuitive.” (Doc. 1, ¶ 10). The doctors converted the robotic surgery to an open
laparotomy surgery to repair the lacerations and tears on Mr. Reece’s intestines and
small bowels. (Doc. 1, ¶ 10). Mr. Reece spent the next 44 days in the hospital.
(Doc. 1, ¶ 11). Mr. Reece’s injuries required eight follow-up procedures. (Doc. 1,
¶ 13).
Mr. Reece and his wife filed this lawsuit against Intuitive on June 7, 2013.
In their complaint, the Reeces assert seven state law claims against Intuitive: (1)
product liability (Doc. 1, ¶¶ 48-76); (2) general negligence and negligent training,
negligent proctoring, and negligent certification (Doc. 1, ¶¶ 77–82); (3) fraud (Doc.
1, ¶¶ 83–93); (4) breach of express warranty (Doc. 1 ¶¶ 94–103); (5) breach of
implied warranty (Doc. 1, ¶¶ 104–11); (6) unjust enrichment (Doc. 1, ¶¶ 112–17);
and (7) loss of consortium (Doc. 1, ¶¶ 118–20). Intuitive filed a motion to dismiss
the Reeces’ claims. (Doc. 7). This order resolves Intuitive’s motion to dismiss.
III.

ANALYSIS
A federal court sitting in diversity applies the substantive law of the state in

which the court sits, including the state’s choice-of-law rules.

Manuel v.

Convergys Corp., 430 F.3d 1132, 1139 (11th Cir. 2005) (citing Klaxon Co. v.
Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)); Klaxon Co. v. Stentor Elec.
Mfg. Co., 313 U.S. 487, 496 (1941) (finding that forum state’s choice-of-law rules
3

are substantive). Under Alabama’s choice of law rules, courts must apply the law
of the place of the injury -- the lex loci delicti -- to “determine the substantive
rights of an injured party.” Middleton v. Caterpillar Indus., Inc., 979 So. 2d 53, 57
(Ala. 2007) (citing Fitts v. Minnesota Mining & Mfg. Co., 581 So. 2d 819, 820
(Ala. 1991)) (internal citations omitted).1 The law of the forum – the lex fori –
governs procedural matters. Middleton, 979 So. 2d at 57. Because Mr. Reece’s
injuries occurred in Tennessee, this Court will apply Tennessee law to resolve all
of the substantive issues in the case. The Court will follow Alabama law with
respect to procedural issues.
To resolve Intuitive’s motion to dismiss, the Court must determine whether
the limitations language in the Tennessee Product Liability Act (“TPLA”), Tenn.
Code. Ann. § 29-28-101 et seq., is procedural or substantive. “‘Where the statute
of limitations [is procedural, and] goes only to the remedy, it seems to be the
settled rule that the lex fori, and not the lex loci, governs.’” Etheredge v. Genie
Industries, Inc., 632 So. 2d 1324, 1326 (Ala. 1994) (quoting Mullins v. Ala. Great
Southern Ry., 195 So. 866 (Ala. 1940)). “‘By legal tradition, most statutes of
limitation are deemed procedural rather than substantive.’” Id. (quoting Robert A.
Leflar, et al., American Conflicts Law 348 (1986)); see also Cofer v. Ensor, 473
1

In Bodnar v. Piper Aircraft Corp., the Alabama Supreme Court explained that it applies the
substantive law of the state where the injury occurred because “the right to recover for a foreign
tort owes its creation and scope to the law of the jurisdiction where the injury occurred.” 392 So.
2d 1161, 1163 (Ala. 1980).
4

So. 2d 984, 987 (Ala. 1985) (“‘Alabama decisions state that a statute of limitations,
unless the act specifically declares otherwise, is construed as affecting the remedy
only.’”) (quoting State Dep’t of Rev. v. Lindsey, 343 So. 2d 535, 537 (Ala. Civ.
App. 1977)). But the Alabama Supreme Court recognizes a distinction “‘between
a true statute of limitations and a statute which creates a new right of action with
an express restriction on the time within which an action may be brought to
enforce the right.’” Etheredge, 632 So. 2d at 1326 (quoting Cofer, 473 So. 2d at
987). The Alabama Supreme Court labels the latter a “statute of creation.” The
Alabama Supreme Court regards a statute of creation as a principle of substantive
law because “‘the limitation is so inextricably bound up in the statute creating the
right that it is deemed a portion of the substantive right itself.’” Id. at 1327
(quoting Cofer, 473 So. 2d at 987).
The limitations language in the TPLA appears in § 29-28-103(a). Section
29-28-103(a) provides that:
Any action against a manufacturer or seller of a product for injury to
person or property caused by its defective or unreasonably dangerous
condition must be brought within the period fixed by §§ 28-3-104, 283-105, 28-3-202 and 47-2-725, but notwithstanding any exceptions to
these provisions, it must be brought within six (6) years of the date of
injury, in any event, the action must be brought within ten (10) years
from the date on which the product was first purchased for use or
consumption, or within one (1) year after the expiration of the
anticipated life of the product, whichever is the shorter, except in the
case of injury to minors whose action must be brought within a period
of one (1) year after attaining the age of majority, whichever occurs
sooner.
5

Tenn. Code. Ann. § 29-28-103(a). The first sentence of § 29-28-103(a) refers to
limitations periods that appear elsewhere in the Tennessee Code. One of those
limitations periods, § 28-3-104, is located in the “Limitations of Actions” chapter
of the Tennessee Code. Section 104 of the chapter is entitled “Personal tort
actions; actions against certain professionals.” Section 104 lists, among other
things, categories of tort actions to which a one year statute of limitations applies.
Section 28-3-104(a)(1) states that actions “for injuries to the person,” including
products liability actions, “shall be commenced within one (1) year after the cause
of action accrued.” Tenn. Code. Ann. § 28-3-104(a)(1).2
Intuitive argues that the TPLA incorporates § 28-3-104(a)(1)’s one-year
statute of limitations into § 29-28-103(a) and that § 29-28-103(a) is a statute of
creation.

As support for its argument, Intuitive cites Strayhorn v. Wyeth

Pharmaceuticals, Inc., 737 F.3d 378 (6th Cir. 2013). In that case, the Sixth Circuit
2

Section 28-3-104 adds:
(b) For the purpose of this section, in products liability cases:
(1) The cause of action for injury to the person shall accrue on the date of the personal
injury, not the date of the negligence or the sale of a product;
(2) No person shall be deprived of the right to maintain a cause of action until one (1)
year from the date of the injury; and
(3) Under no circumstances shall the cause of action be barred before the person sustains
an injury.

Tenn. Code. Ann. § 28-3-104(a).
6

Court of Appeals examined a variety of product liability claims in seven
consolidated cases in which the plaintiffs alleged that they developed a serious
neurological disorder after they ingested a prescription drug. Id. at 383. The
appellate court agreed with the district court’s holding that:
[t]he TPLA governs products liability actions in Tennessee and
defines “product liability action[s]” as “all actions brought for or on
account of personal injury, death or property damage caused by or
resulting from the manufacture, construction, design, formula,
preparation, assembly, testing, service, warning, instruction,
marketing, packing, or labeling of any product.” The TPLA also
encompasses several different theories of products liability: “strict
liability in tort; negligence; breach of warranty, express or implied;
breach of or failure to discharge a duty to warn or instruct, whether
negligent or innocent; misrepresentation, concealment, or
nondisclosure, whether negligent or innocent; or under any other
substantive legal theory in tort or contract whatsoever.”
Id. at 392 (quoting Strayhorn v. Wyeth Pharm., Inc., 887 F.Supp. 2d 799, 813
(W.D. Tenn. 2012)). Beyond recognizing that the TPLA embraces all product
liability theories under Tennessee law, Strayhorn sheds no light on the issue before
the Court. Strayhorn does not mention whether the TPLA created “a new right of
action” such that it would be considered a statute of creation under Alabama law.
And even if the opinion spoke to that issue, it would be of little help to the Court’s
analysis because “in this instance it is for this Court to determine whether the
statute is substantive or procedural. The [Sixth Circuit] decisions ‘are of no legal
consequence for purposes of this analysis. It is Alabama law that is binding.’”

7

Etheredge, 632 So. 2d at 1327. Thus, the Court looks to Alabama law to discern
the identifying characteristics of a “statute of creation.”
The Court has located a number of cases in which the Alabama Supreme
Court has held that a “statute of limitations” is “‘so inextricably bound up in the
statute creating the right that it is deemed a portion of the substantive right itself.’”
Etheredge, 632 So. 2d at at 1327 (quoting Cofer, 473 So. 2d at 987). In Ex parte
B.W.C., 590 So. 2d 279 (Ala. 1991), the Alabama Supreme Court held that
Alabama Code § 26-10-5 (then in effect) was a statute of creation. The statute
provided a five-year deadline for challenges to orders of adoption. The Alabama
Supreme Court found that the statute was a statute of creation because:
it creates a new liability, and, to enforce that liability gives an action
that did not exist at common law, and, within the text of the statute
itself, includes a time within which one must bring that action . . . [so]
that the five-year period for commencing an action under § 26-10-5
enters into and becomes a part of the right of action itself and is a
limitation directed at the newly created right, not just the remedy . . .
Id. at 281-82 (noting that adoption order challenge must have been initiated within
five-year window but did not have to be completed within five years).
Nearly a decade later, the Alabama Supreme Court held that Alabama Code
§ 35-10-30 (which establishes a penalty against mortgagors for certain conduct) is
a statute of creation because § 35-10-30 “did not exist at common law.” Ex parte
Rowan, 774 So. 2d 530, 532 (Ala. 2000). The Alabama Supreme Court stated:

8

A limitation on a right of action, set forth in a statute of creation (typically, a
limitation on the time in which the right may be exercised), is “‘so
inextricably bound up in the statute creating the right that it is deemed a
portion of the substantive right itself.’”
Id. (quoting Cofer, 473 So. 2d at 987).
In Cofer, the seminal decision concerning statutes of creation, the Alabama
Supreme Court confirmed that “the two-year period provided in the wrongful death
statute, within which a wrongful death action must be brought, is a statute of
creation, because ‘[t]he period of two years is the essence of the newly created by
the statute conferred right of action . . .’” Cofer, 473 So. 2d at 991-92 (quoting
Louisville & N.R. Co. v. Chamblee, 171 Ala. 188 (Ala. 1911)). In reaching this
conclusion, the Alabama Supreme Court quoted the following passages from Am.
Jur. 2d:
It sometimes happens that a statute will create an entirely new right of
action that did not exist at common law, and will expressly attach
thereto, without any exception, the proviso that the action must be
brought within a certain time from the date of its accrual. Conditions
which are annexed to a right of action created by a statute in this
manner must be distinguished from a limitation period under a true
statute of limitations.
...
a statute that in itself creates a new liability and gives an action to
enforce it unknown to the common law and fixes the time within which
that action may be commenced is not a statute of limitations, but a
statute of creation.

9

Cofer, 473 So. 2d at 992 (quoting 51 Am. Jur. 2d Limitation of Actions, § 8, p. 596
(1970) and 22 Am. Jur. 2d Death, § 35, p. 633 (1965)) (emphasis in Cofer). The
Alabama Supreme Court concluded: “Thus, because the source of the period of
limitations for the wrongful death of a minor was contained in the original 1852
wrongful death statute and continues to be included in § 6-5-410, it is a statute of
creation and not a tollable statute of limitations.” Id. at 992-93 (emphasis in
Cofer).3
Based on the B.W.C., Rowan, and Cofer decisions, the Court concludes that
a “statute of creation” under Alabama law “creates a new liability, and, to enforce
that liability gives an action that did not exist at common law, and, within the text
of the statute itself, includes a time within which one must bring that action.”
B.W.C., 590 So. 2d at 281-82. Applying this definition to the TPLA, the Court
concludes that the statute is not a statute of creation because the TPLA does not
3

The Alabama Supreme Court consistently has held that the wrongful death statute and its
predecessor, the Homicide Act, created a cause of action that did not exist at common law. See
Parker v. Fies & Sons, 10 So. 2d 13, 15 (1942), overruled on other grounds by King v. Nat'l Spa
& Pool Inst., Inc., 607 So. 2d 1241 (Ala. 1992) (“Our Homicide Act is a death statute, a punitive
statute to prevent homicides. It creates a new and distinct cause of action, unknown at common
law. The cause of action comes into being only upon death from wrongful act. . . . The statute
requires suit brought within two years after death. This is not a statute of limitations, but of the
essence of the cause of action, to be disclosed by averment and proof.”) (internal citations
omitted); see also King v. Nat'l Spa & Pool Inst., Inc., 607 So. 2d 1241, 1243 (Ala. 1992)
(explaining that Parker’s discussion of the Homicide Act “applies equally well to the present
Wrongful Death Act, Ala. Code 1975, § 6-5-410, and that Act remains the sole right of action for
death under our law.”) (internal citations omitted); Kennedy v. Davis, 55 So. 104, 105 (Ala.
1911) (“It has been decided and many times reaffirmed by this court that actions under [the
Homicide Act] are purely statutory. There was no such action or right of action at common
law.”).
10

create a new liability that did not exist at common law. The Tennessee Legislature
enacted the TPLA in 1978. Penley v. Honda Motor Co., Ltd., 31 S.W.3d 181, 186
(Tenn. 2000). “Product liability claims, however, were viable common law causes
of action in Tennessee prior to 1978.” Charter Oak Fire Ins. Co. v. Broan, 348 F.
Supp. 934 (W.D. Tenn. 2004). In fact, the Tennessee Legislature enacted the
TPLA to curb price increases for product liability insurance.

The Tennessee

Legislature attributed escalating prices for product liability insurance to the
increasing number of product liability lawsuits in Tennessee. Penley, 31 S.W.3d at
187.4 Clearly, Tennessee recognized common law product liability actions before
the Tennessee Legislature enacted the TPLA. Therefore, the TPLA is not a statute

4

The Tennessee Legislature accomplished its goal by including within the TPLA a statute of
repose. After the period of repose expires (generally either within six years of the date of injury
or within ten years from the date of purchase or within one year after the expiration of the
anticipated life of the product, “whichever is the shorter”), no plaintiff may commence a product
liability action. Penley, 31 S.W.3d at 187 (citing Tenn. Code. Ann. § 29-28-103(a) and holding
that the ten-year statute of repose in § 29-28-103(a) cannot be tolled). Even if § 29-28-103(a)
constituted a statute of creation under Alabama law (because it includes repose language that
extinguishes a plaintiff’s right of action), Alabama law would characterize only the repose
language within § 29-28-103(a) as substantive because that language limits a plaintiff’s right, not
just his remedy. Under Alabama choice of law rules, the general statute of limitation provisions
that the Tennessee Legislature referenced in § 29-28-103(a) are procedural because those
limitation periods affect only a plaintiff’s remedy. As the language of § 29-28-103(a) indicates,
the limitation period in § 28-3-104(a)(1) may be tolled in a products liability action but only
within the repose window. When the period of repose lapses, the plaintiff’s right is extinguished.
See Tenn. Code. Ann. § 29-28-103(a) (acknowledging that there are exceptions to the general
limitation in § 28-3-104(a) and in Tennessee’s other general statutes of limitation, and stating
that “notwithstanding any exceptions to these provisions,” a products liability action “must be
brought within six (6) years of the date of injury, in any event, the action must be brought within
ten (10) years from the date on which the product was first purchased for use or consumption, or
within one (1) year after the expiration of the anticipated life of the product, whichever is the
shorter.”) Because the limitation period in § 28-3-104(a)(1) affects only a plaintiff’s remedy, it
is procedural, not substantive.
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of creation. Consequently, the two-year statute of limitations in Alabama Code §
6-2-38(l) governs the Reeces’ personal injury claims rather than the one-year
statute of limitations in Tennessee Code § 28-3-104(a)(1) to which the TLPA
refers in § 29-28-103(a).
Despite the fact that Tennessee Code § 28-3-104(a)(1) constitutes a
procedural limitations period under Alabama’s settled choice of law rules, Intuitive
urges the Court to regard § 28-3-104(a)(1) as substantive rather than procedural
because the one year limitation period in § 28-3-104(a)(1) is part of the public
policy of the State of Tennessee. (Doc. 7, p. 4; Doc. 10, pp. 5-6). Intuitive cites
Bodnar v. Piper Aircraft Corp., 392 So. 2d 1161 (Ala. 1980), in support of its
public policy argument.
The Court finds Bodnar unpersuasive. In that wrongful death case, the
decedent and his wife, the plaintiff, were residents of Georgia, and the airplane
accident that gave rise to the wrongful death action occurred in Georgia. The
decedent’s widow named as defendants the manufacturer of the plane, the
manufacturer of a component part of the plane, and an Alabama business that
allegedly failed to inspect and identify a purported defect in the plane’s exhaust
system. Bodnar, 392 So. 2d at 1162, 1164. With little analysis of Alabama’s
settled choice of law rules, the Alabama Supreme Court, on procedural grounds,
distinguished Bodnar from the Court’s earlier decision in Battles v. Pierson
12

Chevrolet, Inc., 274 So. 2d 281 (Ala. 1973), and the Court noted that, “in the years
since Battles was decided, the Georgia Supreme Court has declared the two-year
period stated in Ga.Code, § 3-1004 [Georgia’s general two-year statute of
limitations], to be ‘the public policy’ of that state.” Bodnar, 392 So. 2d at 1163
(citing Taylor v. Murray, 204 S.E.2d 747 (1974)). The Court concluded that the
widow’s claim “founded on the Georgia Wrongful Death Act” was “not barred by
the Georgia statute of limitations, which we hold is the applicable limitation period
under our conflict of laws rule.” Id.
In Battles, the Alabama Supreme Court explained that if it were to reach the
choice of law issue presented to it -- an option that the state law pleading rules then
in place foreclosed -- it would follow Alabama’s settled choice of law rules and
apply Alabama’s statute of limitations even though the Georgia wrongful death
statute governed the substantive issues in the case. The Court wrote:
The general rule, long accepted by most of the courts of this country
for determining the statute of limitations to be applied in such
[wrongful death] cases as the Mullins case and the case at bar is to the
effect that where a wrongful death occurs outside of the state in which
the action is brought, the statute of limitations of the state where the
action is brought controls unless the homicide or wrongful death
statute where the accident occurred has a built-in statute of
limitations. In that event, the statute of the state where the accident
occurred is generally held to control. Larue v. C. G. Kershaw
Contracting Co., 177 Ala. 441, 59 So. 155; Nelson v. Eckert, 231 Ark.
348, 329 S.W.2d 426; Sherley v. Lotz, 200 Va. 173, 104 S.E.2d 795;
Edison v. Lewis (Okl.), 325 P.2d 955; McDaniel v. Mulvihill, 196
Tenn. 41, 263 S.W.2d 759.
13

We see no reason why there would have been a different result in the
Mullins case, Supra, if the Georgia homicide or wrongful death statute
had been properly pleaded, since that statute did not limit the duration
of the time within which the right granted thereunder had to be
exercised.
But that question aside, the Georgia statute has not been properly
pleaded.
Battles, 274 So. 2d at 285.
A few years after the Alabama Supreme Court issued the Bodnar opinion, it
decided Sanders v. Liberty Nat. Life Ins. Co., 443 So. 2d 909 (Ala. 1983). In that
case, the Court had to determine whether fraud and bad faith claims that were
governed by Florida law were subject to Alabama’s one-year statute of limitations
or Florida’s four-year statute of limitations. In holding that Alabama’s statute of
limitations applied and barred the fraud and bad faith claims, the Alabama
Supreme Court offered context for its reference to “public policy” in Bodnar. The
Court instructed:
Alabama courts will only apply another state’s statute of limitations
when it is demonstrated that “the limitation is so inextricably bound
up in the statute creating the right that it is deemed a portion of the
substantive right itself.” Department of Revenue v. Lindsey, 343 So.
2d 535, 537 (Ala. Civ. App. 1977). In other words, the limitation
must be found to be a part of the “public policy” of the other state. See
Bodnar v. Piper Aircraft Corp., 392 So. 2d 1161, 1163 (Ala.1980).
Sanders has failed to show this court that such is true of the Florida
statute of limitations applicable to fraud. Consequently, Alabama's
one-year statute of limitations was properly applied by the trial court,
and Sanders’s fraud counts are barred in the courts of this state.

14

Sanders, 443 So. 2d at 912. Thus, the Alabama Supreme Court tethered its “public
policy” language to the settled choice of law rule that Alabama applies another
state’s statute of limitations when the limitation period is so closely tied to the
substantive cause of action that the limitation becomes part of the action, thereby
reflecting the public policy that animates the action itself.

Years later, in

Etheredge, when one of the parties to that product liability action tried to persuade
the Court that public policy weighed against the application of North Carolina’s
statute of limitations, the Court reminded the parties that “the preliminary question
is whether [North Carolina General Statute] § 1-50(6) is a procedural law or a
substantive law.” Etheredge, 632 So. 2d at 1326. The Court never returned to the
public policy debate.

Instead, the Court relied exclusively on its analysis of

whether North Carolina’s six year period of repose for personal injury actions
based on an alleged product defect was a statute of creation. Id. at 1326-27. 5
Beyond this analysis of Alabama precedent, the Court is persuaded by
plaintiffs’ counsel’s argument regarding the logical flaw in Intuitive’s position.
Intuitive contends that because § 28-3-104(a)(1) is part of the public policy of the
State of Tennessee, this Court should treat the Tennessee limitation period as
5

This Court has located no other decision from the Alabama Supreme Court since Etheredge that
mentions Bodnar. Etheredge appears to be the decision upon which the Alabama Supreme Court
rests much of its choice of law analysis. See, e.g., Precision Gear Co. v. Continental Motors,
Inc., 135 So. 3d 953, 956-60 (Ala. 2013); Middleton v. Caterpillar Indus., Inc., 979 So.2d 53, 5760 (Ala. 2007); Holman v. McMullan Trucking, 684 So. 2d 1309 (Ala. 1996).
15

substantive rather procedural. The Court recognizes that every statute that a state
legislature enacts reflects the public policy of that state. If Alabama courts were to
regard the general statutes of limitations of sister states as matters of public policy
such that the courts of Alabama should treat those general limitations periods as
substantive rather than procedural law, then the exception would quickly swallow
the general rule that “most statutes of limitation are deemed procedural rather than
substantive” and that “Alabama courts will only apply another state’s statute of
limitations when it is demonstrated that ‘the limitation is so inextricably bound up
in the statute creating the right that it is deemed a portion of the substantive right
itself.’” Etheredge, 632 So. 2d at 1326, and Sanders, 443 So. 2d at 912. The
Court does not believe that the Alabama Supreme Court intended such a result
when it mentioned public policy in the Bodnar decision. 6

6

This judicial officer acknowledges that two other judges in this District previously examined §
28-3-104(a)(1) under Alabama’s choice of law rules and reached different conclusions.
Compare Murphy v. McGriff Transp., Inc., 2012 WL 3542296, *2 (N.D. Ala. Aug. 15, 2012)
(“Thus, although the one-year Tennessee statute of limitations is not “built-in” to the wrongful
death statute, Tennessee courts have stated that such statutes are part of the public policy of that
state. Therefore, this court must conclude that the one-year statute of limitations is considered
substantive by the state of Tennessee and that it must be applied in this case.”), and Randolph v.
Tennessee Valley Authority, 792 F.Supp. 1221, 1223 (N.D. Ala. 1992) (“[T]reating the concepts
of ‘built-in’ and ‘public policy’ as synonyms, the court will not find, with no help from the
Tennessee Supreme Court, that the Tennessee one-year statute of limitations is such an important
or crucial ‘public policy’ of Tennessee as to be elevated to the status of the ‘substantive’ law of
that state to the north of us. The pertinent Tennessee statute is no more and no less than a general
limitations statute applicable to all actions arising out of ‘injury to the person’. Accordingly, this
court will tentatively treat the Tennessee limitations period as procedural and therefore not
relevant to the present inquiry. This inexorably leads the court to the conclusion that the
Alabama two-year statute of limitations for negligence actions, Ala.Code § 6–2–38(l) (1975),
being the limitations period of the forum state, is the limitation applicable to this case.”).
16

IV. CONCLUSION
Accordingly, the Court finds that Alabama’s two year statute of limitations
governs the Reeces’ claims. Those claims are timely under the Alabama statute.
Therefore, the Court denies Intuitive’s motion to dismiss.
DONE and ORDERED this November 24, 2014.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

17