Butt et al v. Wright Medical Technology, Inc.
Filing
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ORDER granting 14 Motion to Dismiss without prejudice. by Judge William J. Martinez on 07/10/2015.(cthom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 14-cv-3208-WJM-MEH
JUDITH BUTT, and
DONALD BUTT
Plaintiffs,
v.
WRIGHT MEDICAL TECHNOLOGY, INC.,
Defendant.
ORDER GRANTING MOTION TO DISMISS WITHOUT PREJUDICE AND
SANCTIONING PLAINTIFFS’ COUNSEL FOR FAILING TO MEANINGFULLY
COMPLY WITH WJM REVISED PRACTICE STANDARD III.D.1
Invoking this Court’s diversity jurisdiction, see 28 U.S.C. § 1332(a), Plaintiffs
Judith and Donald Butt (together, “the Butts”) sue Defendant Wright Medical
Technology, Inc. (“Wright Medical”) on various causes of action stemming from injuries
Judith Butt received due to Wright Medical’s allegedly defective artificial hip apparatus.
(ECF No. 1.) Before the Court is Wright Medical’s Motion to Dismiss the complaint
under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 14.) (the “Motion”). For the
reasons explained below, the Motion is granted without prejudice to refiling. However,
as also explained below, the Court finds that a sanction is appropriate against the Butts’
counsel in light of their failure to meaningfully comply with WJM Revised Practice
Standard III.D.1.
I. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a
claim in a complaint for “failure to state a claim upon which relief can be granted.” The
12(b)(6) standard requires the Court to “assume the truth of the plaintiff’s well-pleaded
factual allegations and view them in the light most favorable to the plaintiff.” Ridge at
Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on such
a motion, the dispositive inquiry is “whether the complaint contains ‘enough facts to
state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Granting a motion to dismiss “is a harsh remedy
which must be cautiously studied, not only to effectuate the spirit of the liberal rules of
pleading but also to protect the interests of justice.” Dias v. City & Cnty. of Denver, 567
F.3d 1169, 1178 (10th Cir. 2009) (internal quotation marks omitted). “Thus, ‘a
well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of
those facts is improbable, and that a recovery is very remote and unlikely.’” Id. (quoting
Twombly, 550 U.S. at 556).
II. FACTS1
In May 2008, Butt had a right hip replacement. (¶ 7.) Wright Medical
manufactured at least some of the components that went into the hip replacement
apparatus. (¶ 8.)
On September 14, 2011, Butt “underwent a right hip revision” surgery in which
some components of the hip replacement apparatus were replaced. (¶¶ 10–11.) On
September 29, 2011, Butt’s right hip dislocated while she “was standing in her kitchen
stirring soup.” (¶ 13.) On October 5, 2011, Butt underwent another revision surgery to
1
All citations in this Part II are to the Butts’ complaint (ECF No. 1). All references to
“Butt” are to Plaintiff Judith Butt, unless otherwise noted.
2
replace certain parts of her artificial hip with, among other things, additional
components manufactured by Wright Medical. (¶ 18.) During that operation, Butt’s
physicians noted “significant synovitis from previous metal-on-metal bearing with
staining of the synovial lining of the hip, aseptic loosening of the acetabular component
and well-fixed femoral component.” (¶ 19.)
In February 2013, Butt endured another revision surgery which apparently
replaced every part of her artificial hip with components manufactured by a company
that is not a party here. (¶ 20.) Butt now sues Wright Medical, alleging causes of
action for “product strict liability,” negligent design and manufacture, negligent failure to
warn, and punitive damages. (¶¶ 22–49, 54–57.) Donald Butt alleges loss of
consortium. (¶¶ 50–53.)
III. ANALYSIS
A.
Statute of Limitations
Wright Medical’s primary challenge is that Butt did not timely file her complaint.
(ECF No. 14 at 4–7.) In Colorado, product liability lawsuits, including failure-to-warn
lawsuits, must be filed “two years after the claim for relief arises.” Colo. Rev. Stat.
§ 13-80-106(1); see also Yoder v. Honeywell Inc., 900 F. Supp. 240, 244 (D. Colo.
1995) (“Because this is a suit based on diversity jurisdiction, we apply the law of the
forum state, in this case Colorado.”). In addition, “Colorado has adopted the discov ery
rule to determine when a product liability action accrues,” meaning that
a plaintiff must bring her product liability . . . claims within
[two] years of when she is aware or should be aware, in the
exercise of reasonable diligence, of all of the elements of the
cause of action. Once a plaintiff has suspicion of
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wrongdoing, she is under a duty to attempt to find the facts.
Uncertainty as to the full extent of the damage does not stop
the accrual of a cause of action.
Norris v. Baxter Healthcare Corp., 397 F.3d 878, 887–88 (10th Cir. 2005) (citations and
footnote omitted).
Wright Medical argues that Butt should have been aware of a potential cause of
action no later than her October 5, 2011, surgery, during which her physicians
discovered “significant synovitis” and other indications of something having gone wrong.
(ECF No. 14 at 6–7; see also ECF No. 1 ¶¶ 18–19.) Notably, Butt does not respond by
arguing that her allegations, as currently pleaded, are enough to overcome the
discovery rule. Instead, Butt submits an affidavit claiming that she had no reason to
suspect Wright Medical’s alleged wrongdoing until her final surgery in February 2013:
“Up until that point, based on my personal knowledge and conversations I had with my
treating physicians, I believed that those conditions [i.e., hip instability, dislocations, and
the need for multiple procedures] were a normal course for any hip implant patient.”
(ECF No. 20-1 ¶ 7; see also ECF No. 20 at 5–6.)
In resolving a Rule 12(b)(6) motion, this Court may not consider affidavits
submitted in response to the Motion. Silver v. Primero Reorganized Sch. Dist. No. 2,
619 F. Supp. 2d 1074, 1080 (D. Colo. 2007); White v. Santomaso, 2012 WL 364057, at
*3 n.4 (D. Colo. Feb. 2, 2012). Accordingly, the Court will ignore Butt’s affidavit.
Given Butt’s failure to defend the complaint as it stands, the Court deems Butt to
have conceded that, under the facts as alleged, a reasonably prudent individual should
have known at least by October 2011 that something was wrong with her replacement
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hip, thus triggering the discovery rule and rendering the complaint untimely. Cf. Norris,
397 F.3d at 888 (affirming district court’s ruling that plaintiff’s product liability claim
against the manufacturers of her breast implants accrued when plaintiff began
experiencing problems with those implants and needed to have them replaced).
Consequently, Butt’s product liability causes of action (Counts One, Two, and Three)
must be dismissed for failure to state a claim. Donald Butt’s loss of consortium claim
(Count Four) must also be dismissed because it is derivative of the first three causes of
action. Lee v. Colo. Dep’t of Health, 718 P.2d 221, 230 (Colo. 1986).
Finally, the punitive damages cause of action (Count Five) must be dismissed.
“A punitive damage[s] claim is not an independent cause of action . . . .” Mason v.
Texaco, Inc., 948 F.2d 1546, 1554 (10th Cir. 1991). In addition, a party may not seek
punitive damages under Colorado law “in any initial claim for relief.” Colo. Rev. Stat.
§ 13-21-102(1.5)(a). 2 Rather, a prayer for punitive damages “may be allowed by
amendment to the pleadings only after the exchange of initial disclosures . . . and the
plaintiff establishes prima facie proof of a triable issue.” Id.
Because Butt’s affidavit suggests that the Butts may be able to amend their
pleadings to raise a factual issue about the discovery rule, the foregoing dismissal is
without prejudice to amendment. Cf. Bayless v. United States, 767 F.3d 958, 970 (10th
Cir. 2014) (discussing, in the context of the Federal Tort Claims Act, the application of
the discovery rule in situations where a physician incorrectly rules out a potential cause
2
This statute, although procedural in nature, nonetheless applies in federal court. See
Am. Econ. Ins. Co. v. William Schoolcraft, M.D., P.C., 2007 WL 160951, at *2 (D. Colo. Jan. 17,
2007).
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of a plaintiff’s injury).
B.
Wright Medical’s Other Arguments
Wright Medical makes several other arguments for dismissal which the Court
need not address in light of the foregoing. However, without prejudging those
arguments as addressed to any amended complaint, the Court encourages the Butts to
carefully consider Wright Medical’s current arguments when drafting any amendment,
and the Court expects the parties to comply fully and in good faith with WJM Revised
Practice Standard III.D.1 before any Rule 12(b)(6) motion is filed.
C.
Compliance with WJM Revised Practice Standard III.D.1
This undersigned’s Revised Practice Standard III.D.1 deserves further
discussion because it has already been undermined here. In relevant part, the Practice
Standard states:
Counsel should confer prior to the filing of a Rule 12(b)(6)
motion to determine whether the deficiency (e.g., failure to
plead fraud with specificity) can be corrected by
amendment, and should exercise their best efforts to
stipulate to appropriate amendments. If such a motion is
nonetheless filed, counsel for the movant shall include in the
motion a conspicuous statement describing the specific
efforts undertaken to comply with this Practice Standard.
Counsel are on notice that failure to comply with this
Practice Standard may subject them to an award of
attorney’s fees and costs assessed personally against them.
Here, Wright Medical filed a Rule 12(b)(6) motion without including the required
“conspicuous statement.” (See ECF No. 7.) Given that deficiency, the Court struck the
motion without prejudice. (ECF No. 8.) Approximately three weeks later, Wright
Medical renewed its Rule 12(b)(6) motion with the following statement:
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Pursuant to WJM Practice Standard III.D.1 and this Court’s
order of January 6, 2015 (Doc. # 8), counsel for Defendant
conferred with counsel for Plaintiffs on several occasions
from January 6 to January 28, 2015, regarding the relief
sought by this motion and the substance of the motion.
Conferences were conducted by email and in
person-to-person phone calls. Counsel for Plaintiffs
received a copy of this motion.[3] Plaintiffs’ counsel
requested and was granted time in which to research legal
authorities for purposes of conferring. Counsel for Plaintiffs
further informed Defendant’s counsel that she reviewed her
client’s medical records and conferred with her clients.
Plaintiffs’ counsel informed counsel for Defendant of
Plaintiffs’ opposition to the relief requested herein, and of
her intention to file an opposition to this motion, on January
28, 2015, just before the scheduling conference in this case.
(ECF No. 14 at 1–2.)
Given this sequence, it is difficult to understand how the Butts’ counsel could
consider it appropriate to oppose W right Medical’s renewed motion with an affidavit
from Judith Butt supplying new factual allegations—rather than seeking Wright
Medical’s stipulation to amend or, failing that, amending as of right once Wright Medical
filed its renewed motion. See Fed. R. Civ. P. 15(a)(1)(B). Litigating and resolving the
renewed motion is precisely the waste of the Court’s and counsel’s resources that Rule
15(a)(1)(B) and the undersigned’s Practice Standard III.D.1 were intended to avoid.
As noted above, Practice Standard III.D.1 explicitly warns counsel that “failure to
comply with this Practice Standard may subject them to an award of attorney’s fees and
costs assessed personally against them.” Moreover, 28 U.S.C. § 1927 permits this
Court to require counsel to pay “excess costs, expenses, and attorneys’ fees” where
3
The Butts’ counsel had a copy of the motion anyway, given that they were served with
a copy of the stricken version (ECF No. 7), which is materially identical to the renewed motion
(ECF No. 14).
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counsel “so multiplies the proceedings in any case unreasonably and vexatiously.”
Under both of these authorities, the Court finds that a sanction of attorneys’ fees,
payable by the Butts’ counsel to Wright Medical, is appropriate in this circumstance.
Specifically, the Court finds that the Butts’ counsel shall pay to Wright Medical its fees
and costs reasonably incurred in (a) complying with Practice Standard III.D.1 from
January 6 through January 28, 2015, (b) drafting and filing its reply brief (ECF No. 21),
and (c) drafting and filing a motion for attorneys’ fees. The Court does not award
Wright Medical its fees and costs for preparing its motion (ECF No. 14) because Wright
Medical drafted and filed that motion, and thereby incurred the expense, before
complying with Practice Standard III.D.1 (see ECF Nos. 7 & 8).
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.
Defendant Wright Medical Technology, Inc.’s Motion to Dismiss Plaintiffs’
Complaint (ECF No. 14) is GRANTED and the Butts’ claim is DISMISSED
without prejudice;
2.
The Butts are granted leave to file an amended complaint no later than July 24,
2015; and
3.
No later than July 31, 2015, Wright Medical may file a D.C.COLO.LCivR 54.3
motion claiming attorneys’ fees and costs reasonably incurred in (a) complying
with Practice Standard III.D.1 from January 6 through January 28, 2015,
(b) drafting and filing its reply brief (ECF No. 21), and (c) drafting and filing the
motion for attorneys’ fees itself. The Butts shall then have until August 14, 2015,
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to file a response, if desired. No reply will be permitted absent further order.
Dated this 10th day of July, 2015.
BY THE COURT:
William J. Martínez
United States District Judge
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