Gunn et al v. St Vincent Infirmary Medical Center et al

Filing 27

ORDER granting 4 Motion to Dismiss or for 4 Judgment on the Pleadings; granting 14 Motion to Stay; denying 17 Motion to Remand to State Court. The claims against St. Vincent are time-barred and are dismissed with prejudice. Signed by Judge D. P. Marshall Jr. on 11/29/12. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

VELMA GUNN and CHARLES GUNN

v.

PLAINTIFF

No. 4:12-cv-661-DPM

ST. VINCENT INFIRMARY MEDICAL
CENTER; JOHNSON & JOHNSON; FIRST
INITIATIVES INSURANCE LTD.; and
ETHICON, INC.

DEFENDANTS

ORDER

In 2004 Velma Gunn underwent surgery at St. Vincent's hospital. The
procedure involved the insertion of a surgical mesh manufactured and
distributed by Johnson & Johnson and Ethicon, Inc. She says the mesh eroded
and failed, and causes her extreme pain and discomfort. She brings products
liability and negligence claims against the defendants. St. Vincent moves to
dismiss or for judgment on the pleadings, saying all claims against the
hospital are time-barred. The panel on multi-district litigation has entered a
conditional transfer order in this tag-along case to MDL No. 2327. Case MDL

No. 2327, Document No. 673. The Court retains jurisdiction until a final
transfer occurs, and, in the interest of judicial efficiency, should rule on
pending motions that turn primarily on local law.

The parties agree that the two-year statute of limitations found in the
Medical Malpractice Act, ARK. CODE ANN.§ 16-114-203, governs the Gunns'
claims against St. Vincent. Document No. 7, at 3. Eight years passed before the
Gunns filed their complaint. The question is whether the discovery rule,
which can toll the statute of limitations in products cases, also stops time for
claims brought under the Malpractice Act. And the answer is clear: uThe date
of the accrual of the cause of action shall be the date of the wrongful act
complained of and no other time." ARK. CODE ANN.§ 16-114-203(b). (emphasis
added). No authority binds the Malpractice Act and the discovery rule.
Does the Malpractice Act cover all of the Gunns' claims against St.
Vincent? It does. The Act is written broadly, and anticipates both negligence
and strict-liability claims. uMedical injury means any adverse consequences
... resulting from negligence ... in the performance of such services [.]" ARK.
CODE ANN.§ 16-114-201(3).

And au cause of action based on strict or product

liability is an action for medical injury as that term is used in the Medical
Malpractice Act." Adams v. Arthur,333 Ark. 53,87,969 S.W.2d 598,615 (1998).
The Gunns' claims are time-barred as to St. Vincent and are therefore
dismissed with prejudice.

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* * *
St. Vincent's motion for judgment, Document No. 4, is granted. Because
St. Vincent is no longer a party, the motion to remand for lack of diversity,
Document No. 17, is denied. To promote judicial economy, the motion to stay

further proceedings pending likely transfer to the MDL, Document No. 14, is
granted. Zarecorv.MorganKeegan &Co.,No.4:11CV824,2012 U.S. Dist. LEXIS
2047, at *3 (E. D. Ark. 9 January 2012).
So Ordered.

D.P. Marshall Jr.
United States District Judge

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