Wright v. Insight Pharmaceuticals, LLC et al

Filing 31

OPINION AND ORDER denying 18 motion to dismiss. Signed by Judge John E. Steele on 1/20/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KARA WRIGHT, as Personal
Representative of Jane Doe
1, a minor child, and Jane
Doe 2, a minor child,
Plaintiff,
v.

Case No: 2:16-cv-547-FtM-99MRM

INSIGHT
PHARMACEUTICALS,
LLC,
a
Delaware
Limited
Liability Company and WALMART
STORES,
INC.,
a
Delaware corporation,
Defendants.
OPINION AND ORDER
This matter comes before the Court on defendants’ Motion to
Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) (Doc. #18) filed on
November 29, 2016.

Plaintiffs filed a response in opposition

(Doc. #22) to which defendants replied (Doc. #28).

For the reasons

set forth below, the motion is denied.
I.
This is a products liability case which defendants argue is
time-barred.

On July 8, 2016, plaintiff Kara Wright as Personal

Representative of minor children Jane Does 1 and 2 (plaintiffs)
filed a six-count Complaint (Doc. #1); plaintiffs are currently

proceeding on a six-count Amended Complaint (Doc. #16) 1 against
defendants Insight Pharmaceuticals, LLC (Insight) and Wal-Mart
Stores, Inc. (collectively “defendants”), alleging injuries from
the use of Gentle Naturals® Cradle Cap Treatment (Gentle Naturals
or the product) which is manufactured by Insight. 2
The underlying facts as set forth in the Amended Complaint
are as follows: On or about April 2, 2012, Jane Does 1 and 2’s
parent purchased a bottle of Gentle Naturals at a Wal-Mart store.
(Doc. #16, ¶ 9.)
19.)

The product contained no warnings.

(Id. at ¶

Sometime after purchase (but on no specified date(s)),

plaintiffs’

parents

and

caregiver

applied

the

product

to

plaintiffs Jane Does 1 and 2 on several occasions to remove and/or
prevent “cradle cap.”

(Id. at ¶ 12.)

The product was sometimes

applied in an outdoor plastic baby bath under the sun’s exposure.
(Id. at ¶¶ 12, 14.)

Through normal use of the product, the product

would end up on the head, back, chest, and shoulders of Jane Does
1 and 2.
on

no

(Id. at ¶ 13.)

specified

Sometime after the product was used (but

date(s)),

plaintiffs

allege

that

a

sunburn

1

The original Complaint (Doc. #1) was dismissed without
prejudice for failure to plead subject-matter jurisdiction. (Doc.
#14.)
2

Plaintiffs bring claims for strict liability and negligence
against both defendants (Counts I and IV) and claims for strict
liability and negligence for design and manufacturing defects
(Counts II and V) and defective warnings/failure to warn (Counts
III and VI) against Insight.

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developed where the product was located on the babies’ skin.
at ¶ 14.)

(Id.

As a result of the sunburn, Jane Does 1 and 2’s skin

appearance “progressively worsened from an apparent mild sunburn,
to full blistering and scabbing with drip-like patterns over the
following weeks and months.”

(Id. at ¶ 15.)

Plaintiffs allege that on August 1, 2012, Jane Does 1 and 2
were diagnosed with permanent loss of pigmentation resulting from
use of the product on their skin in combination with sunlight –
“i.e., an adverse photosensitive reaction to the product.”
#16, ¶

16.)

After

“months

and

years”

of

(Doc.

doctor-recommended

treatment, in both 2015 and 2016, Jane Does 1 and 2 were both
diagnosed with permanent loss of pigmentation in the areas where
the product caused an adverse photosensitive reaction.
17.)

(Id. at ¶

Plaintiffs Jane Does 1 and 2 continue to exhibit melanin and

pigment deficient areas damaged through normal use of the product.
(Id. at ¶ 18.)
II.
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth.”
v.

Berzain,

omitted).

654

F.3d

1148,

1153

(11th

Cir.

2011)

Mamani

(citations

“Threadbare recitals of the elements of a cause of

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action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
consistent

with

a

“Factual allegations that are merely

defendant’s

facially plausible.”

liability

fall

short

of

being

Chaparro v. Carnival Corp., 693 F.3d 1333,

1337 (11th Cir. 2012) (internal citations omitted).

Thus, the

Court engages in a two-step approach: “When there are well-pleaded
factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to
relief.”

Iqbal, 556 U.S. at 679.

The statute of limitations is an affirmative defense, and the
burden of proving an affirmative defense is on the defendant.
Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1292 (11th
Cir. 2005).

A plaintiff is not required to anticipate and negate

an affirmative defense in the complaint.

La Grasta v. First Union

Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004).

A Rule 12(b)(6)

motion to dismiss on statute of limitations grounds may be granted,
however, if it is apparent from the face of the complaint that the
claim is time-barred.

Id. at 845–46.

Nonetheless, a motion to

dismiss on statute of limitations grounds should not be granted
where resolution depends either on facts not yet in evidence or on
construing factual ambiguities in the complaint in defendant’s
favor.

Omar ex rel. Cannon v. Lindsey, 334 F.3d 1246, 1252 (11th

Cir. 2003).

Thus, “[a]t the motion-to-dismiss stage, a complaint

may be dismissed on the basis of a statute-of-limitations defense

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only if it appears beyond a doubt that Plaintiffs can prove no set
of facts that toll the statute.”

Tello, 401 F.3d at 1288 n.13.

III.
Florida products liability actions are subject to a four-year
statute of limitations.

Fla. Stat. § 95.11(3)(e).

The applicable

statute of limitations runs “from the date that the facts giving
rise to the cause of action were discovered, or should have been
discovered

with

95.031(2)(b).

the
It

exercise
is

well

of

due

diligence.”

established

that

the

Id.

at

statute

§
of

limitations on a products liability action begins to run when a
plaintiff (1) knows that she was injured, and (2) has notice of a
possible connection between her injury and the product at issue.
See University of Miami v. Bogorff, 583 So. 2d 1000, 1004 (Fla.
1991).

Defendants assert that it is apparent from the face of the

Amended Complaint that plaintiffs’ claims are time-barred because
they knew of their injuries and the connection to the product prior
to July 8, 2012, over four years before this action was filed.
Plaintiffs respond that it is reasonable to infer from the face of
the Amended complaint that it was not until after July 8, 2012
that plaintiffs were aware of the source of their injury.
It is not clear from the Amended Complaint that plaintiffs
had knowledge that the product was the cause of their injuries
prior to July 8, 2012.

Although it is true that plaintiffs allege

that they purchased the product on or about April 1, 2012 and began

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using the product sometime thereafter (but mention no specific
dates), the face of the Amended Complaint does not state when
plaintiff became aware of the injuries and made a connection
between the injuries and the product.

The Court will not construe

the factual allegations in defendants’ favor at the motion to
dismiss stage.

Accordingly, the motion to dismiss will be denied.

Accordingly, it is hereby
ORDERED AND ADJUDGED:
Defendants’ Motion to Dismiss Pursuant to Fed. R. Civ. P.
12(b)(6) (Doc. #18) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
of January, 2017.

Copies:
Counsel of Record

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20th

day