Roberts v. Stryker Corporation et al
Filing
15
MEMORANDUM OPINION & ORDER: For reasons stated herein, MOTION 8 to Dismiss by Stryker Corporation, Stryker Sales Corporation is OVERRULED. Signed by Judge Henry R. Wilhoit, Jr. on 7/18/2011.(CMR)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at ASHLAND
Civil Action 10-116-HRW
THOMAS ROBERTS,
v.
PLAINTIFF,
MEMORANDUM OPINION AND ORDER
STRYKER CORPORATION
and
STRYKER SALES CORPORATION,
DEFENDANTS.
This matter is before the Court upon the Defendants' Motion to Dismiss
[Docket No.8]. The motion has been fully briefed by the parties [Docket Nos. 13
and 14] and stands ripe for decision. For the reasons set forth below, the Court
finds that Plaintiff has stated claims against Defendants upon which relief can be
granted. Therefore, dismissal is not warranted.
I.
FACTUAL AND PROCEDURAL BACKGROUND
According to the Complaint, on or about May 6, 2008, Plaintiff Thomas
Roberts underwent arthroscopic shoulder surgery at Our Lady of Bellefonte
Hospital in Ashland, Kentucky. During the procedure, the orthopedic surgeon
implanted a pain pump manufactured, sold, and/or distributed by Defendants. The
pain pump injected the local anesthetic products into Plaintiff's shoulder joint on a
continuous basis for up to 72 hours or more following the surgery. He claims that,
as a result of the use of the pain pump, he has developed a condition known as
glenohumeral chondrolysis. This results in constant pain and loss of full use of
the shoulder and/or arm.
On November 11, 2001, Plaintiff instigated this civil action against
Defendants, asserting claims for negligence (Count I), strict liability
(Count II), breach of express warranty (Count III), breach of implied warranty
(Count IV), fraudulent misrepresentation (Count V), fraudulent concealment
(Count VI), negligent misrepresentation (Count VII), fraud and deceit (Count
VIII), and violations of state "Consumer Fraud and Deceptive Trade Practices
Act" (Count IX).l
Defendants seek a dismissal of all claims against them pursuant to Federal
Rule of Civil Procedure Rule 12(b)(6).
II.
12(b)(6) STANDARD
The purpose of a motion to dismiss is to allow a Defendant to test whether,
as a matter of law, the plaintiff is entitled to legal relief. Mayer v. My/od, 988
F.2d 635, 638 (6th Cir. 1993). For purposes of dismissal pursuant to Fed. R. Civ. P
12(b)(6), the complaint must be construed in the light most favorable to the
In his Response to Defendants' Motion, Plaintiff stated that he wished to
voluntarily dismiss Counts III, IV and IX of his Complaint.
2
nonmoving party and its allegations taken as true. Miller v. Currie, 50 F.3d 373,
377 (6th Cir. 1995). The standard for dismissal is liberal. "[A] complaint should
not be dismissed for failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitled him
to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also, Monette v.
Electronic Data Systems, Corp., 90 F/3d 1173, 1189 (6 th Cir. 1996).
Consequently, a complaint will not be dismissed unless there is no law to support
the claims made, the facts alleged are insufficient to state a claim, or there is an
insurmountable bar on the face of the complaint.
Aa motion to dismiss is based solely upon the complaint; therefore, the
focus is on whether the plaintiff is entitled to offer evidence to support the claims,
rather than whether the plaintiff will ultimately prevail. Roth Steel Prods v.
Sharon Ste,~l Corp., 705 F.2d 134, 155 (6 th Cir. 1983).
III.
ANALYSIS
Defendants' argument is two-fold. First, they contend that Plaintiffs claims
for negligence and strict liability are barred by the statute of limitations. They also
argue that Plaintiffs various claims for fraud have not been plead with
particularity and, thus, do not satisfy the requirements of Federal Rule of Civil
Procedure 9(b).
3
A.
Plaintiff's Claims Are Not Barred by the Statute of Limitations.
Kentucky Revised Statute 413. 140(1)(a) mandates that "an action for an
injury to the person of a plaintiff' "shall be commenced within one (1) year after
the cause of action accrued." Ky. Rev. Stat. ยง 413.140(1)(a).
Here, Plaintiff alleges that his injury occurred when the Stryker pain pump
was inserted into his shoulder joint after arthroscopic surgery on or about May 6,
2008. This lawsuit was not filed, however, until November 11, 2010, over two
years after the alleged injury occurred. Thus, Defendants contend that Plaintiffs
claims are barred by the one-year statute of limitations. The Court disagrees.
In this case, the statute limitations was tolled by virtue of the discovery rule.
Under the "discovery rule," a cause of action will not accrue until the plaintiff
discovers, or in the exercise of reasonable diligence should have discovered, not
only that he has been injured but also that his injury may have been caused by the
defendant's conduct. Hazel v. General Motors Corporation, 863 F.Supp. 435, 438
(W.D. Ky. 1994).
In this case, Plaintiff alleges that he did not first learn of the subject injury
until November 13,2009, when the Federal Drug Administration issued a
Postmarket Drug Safety Bulletin discussing reports of chondrolysis in 35 patients
4
who received continuous intra-articular infusion of local aesthetics [Complaint,
Docket No. 1 at,-r 11.19]. Therefore, the cause of action did not begin to accrue
until then.
Defendants contend that the discovery rule does not apply in this case. In
support of their argument, Defendants rely upon Fluke Corporation v. LeMaster,
306 S.W.3d 55 (Ky. 2010). In Fluke, the Plaintiffs used a Fluke brand voltage
meter to determine whether electricity was present in the area where they were
working. Due to a voltage meter malfunction, the Plaintiffs incorrectly believed no
electricity was present and were injured in a subsequent explosion. Id. at 57. In
reinstating summary judgment in favor of the manufacturer, the Kentucky
Supreme Court reasoned that, because the explosion occurred after the voltage
meter indicated no current, the Plaintiffs "should have reasonably suspected that
the voltage meter was not working properly and investigated this possibility." Id.
at 61. In other words, the discovery rule did not apply.
Fluke is distinguishable to this case. In Fluke, Plaintiffs suffered injuries as
a result of a sudden electrical explosion when an electrical multimeter showed no
voltage going through a piece of equipment. Id. at 57. The court noted the injuries
sustained were "immediately apparent." Id. Thus, due to the nature of what
occurred in Fluke, the Plaintiffs should have immediately known that the
5
multimeter was defective. The court in Fluke also noted that the plaintiff should
have investigated the defendant's multimeter itself for potential malfunction
because the government agency that investigated the explosion examined the
multimeter. ld. at 60.
In the present case, Plaintiff had prior shoulder problems and continued
having shoulder problems after the surgery at issue. Plaintiff in this case, unlike
the plaintiff in Fluke, had absolutely no reason to associate those problems with
the use of a pain pump or to suspect that the pain pump was somehow defective.
Further, the court in Fluke made it clear that the discovery rule is directly
applicable to medical injuries, stating "the discovery rule is available only in cases
where the fact of injury or offending instrumentality is not immediately evident or
discoverable with the exercise of reasonable diligence, such as in cases of medical
malpractice or latent injuries or illnesses." ld. at 60.
Defendants also argue that Plaintiff should have discovered his injury based
upon the "wealth of scientific infonnation available" in this regard [Defendants'
Motion to Dismiss, Docket No.8]. Defendants appear to attribute medical
expertise to Plaintiff. This argument has been rejected by the The Kentucky
Supreme Court, which specifically stated that "[0]ne who possesses no medical
knowledge should not be held responsible for discovering an injury based on the
6
wrongful act ofa physician." Wiseman v. Alliant Hospitals, Inc. 37 S.W.3d 709,
712-713 (Ky. 2000). This reasoning is applicable here. To require Plaintiff to
possess knowledge of and intuit a causal connection between pain pumps and
glenohumeral chondrolysis is at best, unreasonable.
It is well settled that a legally recognizable injury does not exist until the
plaintiff discovers the defendant's wrongful conduct. Id. In this case, Plaintiff
did not discover Defendants' alleged wrongdoing until November 13,2009. That
is the date the clock began running. As the Complaint was filed within a year, on
November 11,2010, Plaintiff did not run afoul the stature of limitations.
B.
Plaintiff Has Plead Fraud with Sufficient Particularity.
Rule 9(b) of the Federal Rules of Civil Procedure provides that in all
averments of fraud or mistake, the circumstances constituting fraud or mistake
shall be pled with particularity. However, "[i]n ruling upon a motion to dismiss
under Rule 9(b) for failure to plead fraud 'with particularity,' a court must factor
in the policy of simplicity in pleading which the drafters of the Federal Rules
codified in Rule 8." Michaels Bldg. Co. v. Ameritrust Co., NA., 848 F.2d 674,
679 (6th Cir. 1988). Rule 8 requires a short and plain statement of the claim and
calls for simple, concise, and direct allegations. "Indeed, Rule 9(b)'s particularity
requirement does not mute the general principles set out in Rule 8; rather, the two
7
rules must be read in harmony." Id.
Therefore, the Court should not focus exclusively on the fact that Rule 9(b)
requires particularity in pleading fraud, as this is a narrow approach and fails to
consider the general simplicity and flexibility contemplated by the Rule. Id.
"Especially in a case in which there has been no discovery, courts have been
reluctant to dismiss the action where the facts underlying the claims are within the
defendant's control." Id. "In such a circumstance, the rule of pleading details is
relaxed." Kendrick v. Standard Fire Ins. Co., No. 06-141-DLB, 2007 WL
1035018, *11 (E.D. Ky. Mar. 31, 2007). "This seems appropriate, since the extent
to which Defendants may have been aware of the errors being made, or potential
of errors being made, and any acts taken or not taken based upon such information
are matters within Defendant's knowledge." Id. "Requiring Plaintiffs to plead
specific facts evidencing Defendants' knowledge of the falsity and/or recklessness
of their actions, rather than permitting such to be alleged generally, puts the cart
before the horse, even with a claim of fraud." Id.
In examining the Complaint for sufficiency in this regard, the Court must
determine if Plaintiff has pled the "who, what, when, where and how" of the
alleged fraud. Sanderson v. HCA-The Healthcare Co., 447 F.3d 873. 877 (6th
Cir.2006).
8
Plaintiff meets the "who" requirement by specifically stating that
Defendants made false and fraudulent statements to the Plaintiff, his doctors, the
public, and the FDA.
Defendants [Stryker] falsely and fraudulently represented
to the medical and healthcare community, and to the
Plaintiff and/or the FDA, and/or the public in general,
that said products, the pain pumps, had been tested and
were found to be safe and/or effective for the control of
pain after shoulder surgery.
[Complaint, Docket No. 1 ,-r 80].
Plaintiff meets the "what" requirement by specifically stating that the false
information included statements that their pain pumps were safe for their intended
use in the shoulder joints, despite studies and tests to the contrary.
Defendants falsely and fraudulently represented to the
medical and healthcare community, and to the Plaintiff
and/or the FDA, and/or the public in general, that said
products, the pain pumps, had been tested and were
found to be safe and/or effective for the control of pain
after shoulder surgery.
[Complaint, Docket No.1 ,-r 80].
Upon information and belief, Defendants encouraged
physicians, hospitals, and/or healthcare providers to
place pain pump catheters directly into the glenohumeral
j oint space.
9
[Complaint, Docket No. 1 ~ 88].
Upon information and belief, Defendants represented to
physicians, hospitals and healthcare providers that the
delivery of local anesthetic directly to the joint space
by use of pain pump catheters in the glenohumeral joint
space was safe.
[Complaint, Docket No. 1 ~ 89].
Upon information and belief, Defendants requested that
the FDA approve an indication allowing the delivery of
local anesthetic directly to the joint space by
use of pain pump catheters in the glenohumeral joint
space, but were denied such indication.
[Complaint, Docket No. 1 ~ 90].
Plaintiff meets the "when" requirement by specifically stating that
Defendants made the false and fraudulent statements over the course of numerous
years that they marketed and sold their pain pumps.
Despite the fact that Defendants knew or should have
known that intra-articular pain pumps caused
unreasonably dangerous side effects, Defendants
continued to market, manufacture, distribute and/or sell
pain pumps to consumers, including the Plaintiff.
[Complaint, Docket No. 1 ~ 28].
10
At all times herein mentioned, the Defendants designed,
researched, manufactured, tested, advertised, promoted,
marketed, sold, and/or distributed intra-articular pain
pumps as herein above described that were used in
Plaintiff.
[Complaint, Docket No.1 ,-r 35].
Defendants falsely and fraudulently represented to the
medical and healthcare community, and to the Plaintiff
and/or the FDA, and/or the public in general, that
said products, the pain pumps, had been tested and were
found to be safe and/or effective for the control of pain
after shoulder surgery.
[Complaint, Docket No.1 ,-r 80].
Plaintiff meets the "where" requirement by specifically stating that
Defendants made the false and fraudulent statements to the medical and healthcare
community, and to the Plaintiff and/or the FDA.
Defendants falsely and fraudulently represented to the
medical and healthcare community, and to the Plaintiff
and/or the FDA, and/or the public in general, that
said products, the pain pumps, had been tested and were
found to be safe and/or effective for the control of pain
after shoulder surgery.
[Complaint, Docket No.1 ,-r 80].
11
Upon information and belief, Defendants represented to
physicians, hospitals and healthcare providers that the
delivery of local anesthetic directly to the joint space
by use of pain pump catheters in the glenohumeral joint
space was safe.
[Complaint, Docket No. 1 ~ 89].
Upon information and belief, Defendants requested that
the FDA approve an indication allowing the delivery of
local anesthetic directly to the joint space by use of pain
pump catheters in the glenohumeral joint space, but were
denied such indication.
[Complaint, Docket No. 1 ~ 90].
'"
ih~se are not vague or boilerplate allegations but, rather, specific
stat~fIlenis. Rule 9(b)'s purpose "is to provide fair notice to the Defendant so as to
allow him to prepare an informed pleading responsive to the specific allegations of
fraud." Advocacy Org.for Patients and Providers v. Auto Club Ins. Ass'n, 176
F.3d 315,322 (6th Cir.1999). The Court finds that the allegations in the
Complaint provide such notice to Defendants and, as such, satisfy the
requirements of Rule 9(b) and withstand the spectre of Rule 12(b)(6).
12
IV.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Defendants' Motion to
Dismiss [Docket No.8] be OVERRULED.
This 18 th day of July, 2011.
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?