Chariton v. Ethicon, Inc. et al

Filing 22

MEMORANDUM DECISION AND ORDER granting 11 Motion to Dismiss; deeming as moot 19 Motion to Strike. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
ANITA CHARITON,
Case No. 2:13-cv-00364-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
ETHICON, INC.; and JOHNSON &
JOHNSON, INC.,
Defendant.

INTRODUCTION
Before the Court is defendants’ motion to dismiss. The motion is fully briefed and
at issue. For the reasons set forth below, the Court will grant the defendant’s motion.
BACKGROUND
Anita Chariton underwent surgery in 2007 to repair a hernia. The surgeon, Dr.
Cher Ann Jacobsen, repaired the hernia by implanting a mesh product known as the
Prolene Hernia System. It was manufactured by the defendant Ethicon, Inc. which is a
wholly owned subsidiary of defendant Johnson & Johnson, Inc.1 Id.

1

To avoid confusion and for simplicity’s sake, the Court will refer to the defendants collectively as
“Ethicon.”

MEMORANDUM DECISION AND ORDER - 1

Sometime after the surgery Chariton experienced abdominal pain and swelling,
difficulty walking, and other discomfort. This continued for years, prompting Chariton to
undergo an exploratory laparoscopy in June of 2011. During that procedure, Dr. John
Pennings removed some of the old mesh and implanted new mesh. Id.
In September 2011, Chariton followed-up with Dr. Jacobsen to discuss the
procedure performed in June 2011. Dr. Jacobsen told Chariton the mesh implanted in
2007 was defective and had caused her injuries. Because of these injuries Chariton seeks
recovery in this suit.
Chariton filed her complaint on August 19, 2013, and, after amendment, her
complaint now contains three counts: (1) strict liability for a manufacturing defect, (2)
negligent failure to warn, and (3) negligent preparation of the product. See Amended
Complaint (Dkt. 9). Ethicon argues that Chariton’s complaint is time-barred by the twoyear statute of limitations in Idaho Code, § 5-219(4).
ANALYSIS
The parties agree that Chariton’s claims are governed by a two-year statute of
limitations contained in Idaho’s Products Liability Reform Act, but disagree over when
that period begins. The Act’s limitation provision states that no action can be brought
“more than two (2) years from the time the cause of action accrued as defined in Idaho
Code § 5-219.” Under § 5-219(4), the cause of action accrues at “the time of the
occurrence, act or omission complained of” unless it is based upon (1) leaving a foreign
object in a patient’s body, or (2) a claim that the damage was fraudulently concealed from

MEMORANDUM DECISION AND ORDER - 2

the patient. If either of these two exceptions applies, the cause of action only accrues
once the plaintiff “knows or in the exercise of reasonable care should have been put on
inquiry” of the injury. See I.C. § 5-219(4).
Assuming that neither exception applies, the two-year period begins on the date of
“the occurrence, act or omission complained of,” according to the statute. This language
has been interpreted by the Idaho Supreme Court to require that there be “some damage”
to the patient that is “objectively ascertainable.” Stuard v. Jorgenson, 249 F.3d 1156,
1160 (Id.Sup.Ct. 2011).
The Idaho Supreme Court put this gloss on the statutory language – that is,
interpreted the language “flexibly” – in an attempt to “avoid absurd results.” Davis v.
Moran, 735 P.2d 1014, 1019 (Id.Sup.Ct. 1987). In that case, a patient claimed that her
spinal cord was damaged when it was exposed to an excessive dose of radiation.
Although she filed suit more than two years after the radiation treatment, her suit was
within two years of the date her doctors discovered that the treatment caused her spine
problems. Id. at 1016. She submitted evidence that damage from radiation treatment is
often not immediately detectable and might not arise until years after the treatment. Id.
If the statutory language was read strictly, the date of the radiation treatment
would be “the time of the . . . act . . . complained of,” and the patient’s claim would be
time-barred. But that would be an “absurd” result if there was no actual damage until
long after the treatment, as some evidence suggested. At the same time, the court could
not ignore the statutory intent to limit the discovery exception to two narrow instances,

MEMORANDUM DECISION AND ORDER - 3

neither of which applied. Accordingly, the Court, interpreting the statutory language
“flexibly,” held that the limitations period would not begin until the “fact of injury
becomes objectively ascertainable.” Id. at 709. Because there were questions of fact on
that issue, the court remanded the case for further fact-finding. Id.
As another example, when a patient complained about exposure to asbestos that
did not cause an objectively ascertainable injury to his lungs until years later, the
limitations period did not begin to run until that later date. Brennan v. Owens-Corning
Fiberglas Corp., 10 P.3d 749 (Id.Sup.Ct. 2000). While these cases soften one of the
statute’s sharp edges, they leave untouched another: When detectable damage occurs
without symptoms, the limitations clock begins to tick silently, and the deadline could
expire quietly before the plaintiff is even aware that he has been wronged.
That was precisely what happened in Stuard v. Jorgenson, 249 P.3d 1156, 11601161 (2011). There, a spine surgeon operated on the wrong section of a patient’s spine,
removing healthy tissue and placing a supporting plate in the wrong area. The patient
had no way of knowing about this malpractice until more than two years later when a
nurse discovered it on an x-ray image. Id. at 1158. The court held that the limitations
period started on the date of the surgery because there was an objectively ascertainable
injury – the surgeon had removed healthy tissue and installed the plate in the wrong area.
Id. at 1160.
Neither of the two statutory discovery exceptions applied. Rejecting the patient’s
plea to expand the exceptions because he had no way of learning about the malpractice

MEMORANDUM DECISION AND ORDER - 4

until long after the surgery, the court recognized that the result was “indeed harsh,” but
advised the patient that “his arguments are better to be taken up with the legislature in the
adoption of a discovery rule for all medical malpractice claims.” Id. at 707.
Turning to the present case, Chariton argues that the limitations period did not
begin until September 2011, the date she discovered from Dr. Jacobsen that the mesh was
defective and caused her injuries. She is entitled to a discovery exception if the damage
was fraudulently concealed from her. In that event, she must file suit within one year
following the discovery of the damage. See I.C. § 5-219(4). She did not file suit until
August 19, 2013, more than one year after the discovery date in September of 2011.
Thus, the discovery exception does not help Chariton, and her lawsuit is timely only if an
objectively ascertainable injury did not manifest itself until August 19, 2011, or later.
The establishment of this date is a factual matter under Davis that typically cannot
be resolved on a motion to dismiss but must await summary judgment proceedings or
trial. However, dismissal may be appropriate when the plaintiff has included sufficient
allegations in her complaint that the date can be identified with precision. See Weisbuch
v. County of L.A., 119 F.3d 778, 783 n. 1 (9th Cir. 1997) (affirming dismissal under Rule
12(b)(6) based on allegations by plaintiff in complaint – a “plaintiff may plead herself out
of court”).
In this case, plaintiff alleged in her amended complaint that she (1) “presented to
Kootenai Medical Center . . . on June 11, 2011, with severe abdominal pain” and (2) that
Dr. Pennings’ surgery on that date removed “old mesh product (which had disintegrated

MEMORANDUM DECISION AND ORDER - 5

and protruded in other parts of plaintiff’s abdomen) . . . .” See Amended Complaint (Dkt.
No. 9) at ¶11. This disintegration and protrusion of the mesh product is the damage that
Chariton is suing for in this lawsuit. By her own allegations, this damage was objectively
ascertained on June 11, 2011, the date of her surgery. While no one told her that the
mesh was defective until September of 2011, the clock was ticking as of June 11, 2011.
Her lawsuit filed August 19, 2013, is therefore time-barred. This is “indeed harsh” but is
the result compelled by Stuard and the Idaho Legislature.
ORDER
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss (docket no. 11) is
GRANTED. The Court will enter a separate Judgment dismissing Plaintiff’s Complaint
as required by Rule 58(a).
IT IS FURTHER ORDERED that Defendants’ Motion to Strike (docket no. 19) is
DEEMED MOOT.

DATED: April 29, 2014

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER - 6