Oechsle v. Biomet Microfixation, Inc.

Filing 18

MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 11/18/2013:Mailed notice(rth, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JERRY OECHSLE,
Plaintiff,

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v.
BIOMET MICROFIXATION, INC.,
Defendant.

Case No. 13-cv-3918
Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER
Defendant Biomet Microfixation, LLC (“Biomet”) moves to dismiss Jerry Oechsle’s
(“Plaintiff”) complaint in its entirety as time-barred. For the following reasons, Defendant’s
motion is granted.
Background
Plaintiff alleges that Biomet designed, manufactured, sold, distributed and placed into the
stream of commerce the Open Interpore Cross System (“Interpore Cross”), which is a titanium
rod and screw instrumentation system used in spinal surgeries. Plaintiff had the Interpore Cross
implanted in him on March 11, 2002 as part of a post-lateral fusion spinal surgery. In August or
October 2005, Plaintiff had surgery for a nonunion of an L3 burst fracture. At that time it was
discovered that the titanium rods had fractured and caused the spinal fusion procedure to fail, and
the Interpore Cross had to be removed.
On September 17, 2012 Plaintiff filed a complaint in the Circuit Court of Cook County.
On April 3, 2013 Plaintiff filed an amended complaint naming Biomet and alleging strict product
liability, breach of implied warranty, negligence and breach of express warranty. Biomet
subsequently removed the case to the Northern District of Illinois based on diversity of
citizenship. Biomet now moves to dismiss Plaintiff’s complaint in its entirety alleging all of
Plaintiff’s claims are barred by the statute of limitations, Plaintiff’s strict liability claim is barred
by the statute of repose and all of Plaintiff’s claims are barred because he failed to disclose them
in a prior bankruptcy proceeding.
Legal Standard

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In order to survive a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), a complaint
must contain sufficient factual allegations to state a claim to relief that is plausible on its face.
Ashcroft v. Iqbal, 556 U.S. 662 (2009). A motion to dismiss is decided solely on the face of the
complaint and any attachments that accompanied its filing. Miller v. Herman, 600 F.3d 726, 733
(7th Cir. 2010). Accordingly, the court must accept all well-pleaded factual allegations in the
complaint as true, and draw all reasonable inferences in the plaintiff's favor. Erickson v. Pardus,
551 U.S. 89, 93-94 (2007).
Discussion
While a plaintiff need not anticipate or negate an affirmative defense in his complaint, a
complaint may be dismissed for failure to state a claim if the allegations in the complaint show
that the claim is barred by the applicable statute of limitations. Cummins v. Home Depot USA,
Inc., 2009 WL 1851183 at *1 (N.D. Ill. June 29, 2009).
1. Plaintiff’s breach of warranty claims
The statute of limitations for a breach of warranty action is four years from the date the
cause of action accrues. 810 ILCS 5/2-725(1). A cause of action accrues and the statute of
limitations begins to run, when delivery is made, regardless of when the defect is discovered. 810
ILCS 5/2-725(2). An exception applies “where a warranty explicitly extends to future
performance of the goods and discovery of the breach must await the time of such performance.”
Id. The Interpore Cross was delivered, at the latest, when it was implanted on or before March
11, 2002. Plaintiff’s amended complaint is devoid of any explicit assurances from Biomet and
any specific future time frame to which any such warranty would extend. See Moorman Mfg. Co.
v. Nat’l Tank Co., 91 Ill. 2d 69, 94 (1982) (“[t]he mere expectation that a product’s warranty
extends for the life of the product does not delay the point at which the statute of limitations
commences to run … except upon a warranty explicitly extending to future performance”). Thus,
plaintiff’s claims for breach warranty expired March 11, 2006 and are time-barred.
2. Plaintiff’s strict liability and negligence claims
The parties do not dispute that the relevant statute of limitations for strict liability and
negligence claims is two years from the date that the cause of action accrues. 735 ILCS 5/13–
213(b) (strict liability); 735 ILCS 5/13–202 (negligence); see also Werckenthein v. Bucher
Petrochemical Co., 248 Ill.App.3d 282 (1st Dist. 1993) (noting that “[t]here is little practical
difference between the limitations period” for strict liability and negligence claims). Where an

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injury is a result of a sudden or traumatic event, even if the specific cause of the injury was
unclear at the time of the event, the cause of action accrues at the time of the injury. Cummins,
2009 WL 1851183 at *2. Courts reason that the nature and circumstances surrounding the
traumatic event are such that the injured party is put on notice that actionable conduct might be
involved. Id. For injuries that are not readily discoverable, the Illinois discovery rule provides
that a cause of action accrues when an injured party knew or should have known of the injury
and that the injury was wrongfully caused. Franz v. Purdue Pharma Co., 2006 WL 455998
(D.N.H. Feb. 22, 2006) (applying Illinois personal injury law) (quoting Kumpfer v. Shiley, Inc,,
741 F.Supp. 738, 739 (N.D.Ill. 1990). In either situation, once a cause of action accrues, the
injured party is under an obligation to inquire further as to whether an actionable wrong has been
committed and bring any claims within the limitations period. Cummins, 2009 WL 1851183 at
*2.
Plaintiff’s amended complaint, while short on facts, inconsistent and inartfully drafted,
states:
That on August 15, 2005, during a surgery for a nonunion of an L3 burst fracture at
Froedtert Hospital in Milwaukee, Wisconsin, it was discovered that the aforesaid OpenInterpore Cross system had failed in that the titanium roads [sic] had fractured.
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That as a direct and proximate result of one or more of the foregoing defective
conditions, after the Plaintiff, JERRY OECHSLE, underwent the aforesaid surgical
fusion procedure in 2002 with implementation of the aforesaid rod and screw and in a
subsequent procedure in October, 2005, it was discovered the titanium rods fractured and
caused the fusion procedure to fail.
(Am. Compl. at p. 2 ¶6; p. 7 at ¶8, p. 9 at ¶ 7.) (emphasis added). The discovery that the titanium
rods had fractured and caused the spinal fusion procedure to fail three years after the Interpore
Cross was implanted was a sufficiently sudden and dramatic event to put plaintiff on notice of
his injury and trigger the statute of limitations in 2005. See Kumpfer, 741 F.Supp. at 740 (finding
that cardiac arrest was a sufficient sudden and traumatic event to prompt investigation into
whether the injury may have been caused by a defective heart valve); Berry v. G. D. Searle &
Co., 56 Ill. 2d 548, 559 (1974) (finding that plaintiff who suffered a stroke knew or should have
known of her injury at the time the stroke occurred). Plaintiff was under obligation to further

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investigate and file his claims before the two-year statute of limitations expired in August or
October of 2007. Thus, as pleaded, plaintiff’s strict liability and negligence claims are untimely.
Plaintiff seeks leave to amend his complaint to allege facts that his injury was not sudden
and dramatic and that he neither knew nor should have known of his injury until 2012 when he
was advised by his surgeon that “there had been problems [with the Interpore Cross] in the past.”
(Dkt # 13, pp. 3-5.) Contrary to plaintiff’s bare assertion, plaintiff is not required to have actual
knowledge of Biomet’s alleged wrongful conduct before the limitations period begins to run. See
Cummins, 2009 WL 1851183 at *2; Curry v. A.H. Robins Co., 775 F.2d 212, 216 (7th Circ.
1985). The relevant inquiry is not when plaintiff learned he had a cause of action against Biomet,
but when a reasonable person would have realized their injuries might have been the result of
actionable conduct. See id. However, to the extent that plaintiff can allege facts to cure defects in
his complaint, plaintiff is granted leave to amend.
Conclusion
For the foregoing reasons, Biomet’s motion to dismiss is granted and plaintiff’s amended
complaint is dismissed. Plaintiff is granted leave to amend his complaint in accordance with this
order within 28 days.

IT IS SO ORDERED.
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Date: November 18, 2013
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Sharon Johnson Coleman
United States District Judge

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