Williams v. Gyrus ACMI, Inc. et al
Filing
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MEMORANDUM Signed by Judge Catherine C. Blake on 6/9/11. (bmh, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
KIMBERLY E. WILLIAMS
v.
GYRUS ACMI, INC. (f/k/a ACMI
CORP.), et al.
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Civil No. CCB-11-323
MEMORANDUM
Plaintiff Kimberly Williams (“Williams”) brought this action against Defendants Gyrus
ACMI, Inc.; Gyrus Medical, Inc.; Gyrus ACMI, LLC; and Gyrus ACMI Limited Partnership
(collectively, “the Gyrus Defendants”) and Olympus America, Inc. (“OAI”). Williams asserts
claims for negligence, breach of express and implied warranties, and strict liability arising from
an incident in which a portion of a medical instrument allegedly was left in Williams’s body
following a surgical procedure. Now pending before the court is the Gyrus Defendants’ motion
to dismiss the strict liability claims and OAI’s motion to dismiss or, in the alternative, for
summary judgment. The defendants’ motions will be granted.
BACKGROUND
On February 8, 2008, at Portsmouth Naval Medical Center in Virginia, Williams
underwent a total vaginal hysterectomy and cystoscopy. Ultrasounds performed prior to the
procedure showed no evidence of a foreign object in her pelvis. (Compl. ¶¶ 12–13.) Medical
records indicate the Gyrus ACMI PKS SEAL Open Forceps (“Gyrus Forceps”), which were
designed, manufactured, and sold by the defendants (Id. ¶¶ 5–9),1 were inserted into Williams’s
body during the procedure. A portion of the Gyrus Forceps fell off and was unintentionally left
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OAI contends that it was not affiliated with the Gyrus Defendants at the time of the surgery and did not participate
in the design, manufacture, or sale of the Gyrus Forceps. This issue is discussed in Part II.
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in Williams’s body following the surgery. Williams reports she experienced lower abdominal
pressure and pain immediately after the surgery. This pain continued over subsequent months.
(Id. ¶¶ 14–18.)
Williams presented to National Naval Medical Center in Maryland on July 5, 2009,
complaining of severe abdominal pain, nausea, and near-fainting. A CT scan revealed a foreign
object in her pelvis. The following day, she underwent an operation to remove the object, which
was later identified as a portion of the Gyrus Forceps, called a “shim.” Williams alleges she
suffered and continues to suffer physical and emotional harm because the shim remained in her
body following the surgery. (Id. ¶¶ 19–25.)
In the instant action, Williams asserts six counts: (I) negligence; (II) breach of express
warranty; (III) breach of implied warranty; (IV) strict liability—defect in design; (V) strict
liability—defect in manufacture; (VI) strict liability—failure to warn.
STANDARD
“[T]he purpose of Rule 12(b)(6) is to test the sufficiency of a complaint and not to
resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”
Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (internal quotation marks
and alterations omitted) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.
1999)). When ruling on such a motion, the court must “accept the well-pled allegations of the
complaint as true,” and “construe the facts and reasonable inferences derived therefrom in the
light most favorable to the plaintiff.” Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997).
“Even though the requirements for pleading a proper complaint are substantially aimed at
assuring that the defendant be given adequate notice of the nature of a claim being made against
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him, they also provide criteria for defining issues for trial and for early disposition of
inappropriate complaints.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009).
To survive a motion to dismiss, the factual allegations of a complaint “must be enough to
raise a right to relief above the speculative level, . . . on the assumption that all the allegations in
the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555,
127 S. Ct. 1955 (2007) (internal citations and alterations omitted). Thus, the plaintiff’s
obligation is to set forth sufficiently the “grounds of his entitlement to relief,” offering “more
than labels and conclusions.” Id. (internal quotation marks and alterations omitted). It is not
sufficient that the well-pleaded facts create “the mere possibility of misconduct.” Ashcroft v.
Iqbal, --- U.S. ---, 129 S. Ct. 1937, 1950 (2009). Rather, to withstand a motion to dismiss, “a
complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face,” meaning the court could draw “the reasonable inference that the defendant
is liable for the conduct alleged.” Id. at 1949 (internal quotations and citation omitted).
ANALYSIS
I.
Strict Liability Claims: Counts IV, V, and VI
The Gyrus Defendants and OAI move to dismiss Williams’s strict liability claims on the
grounds that Virginia law applies to this action and Virginia has not adopted strict liability in tort
for products claims. Williams contends Maryland law applies.
A. Lex Loci Delicti Rule
It is well established that a federal court sitting in diversity applies the choice-of-law
rules of the state in which it sits. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.
Ct. 1020 (1941). Despite a modern trend favoring alternative approaches, “Maryland adheres to
the lex loci delicti rule” to determine the applicable law in tort actions. Philip Morris Inc. v.
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Angeletti, 358 Md. 689, 752 A.2d 200, 230 (2000); see also Erie Ins. Exch. v. Heffernan, 399
Md. 598, 925 A.2d 636, 651 (2007) (“We see no reason to discontinue our adherence to the
principles of lex loci delicti.”). Under this rule, “the substantive tort law of the state where the
wrong occurs governs.” Hauch v. Connor, 295 Md. 120, 453 A.2d 1207, 1209 (1983). “[W]here
the events giving rise to a tort action occur in more than one State,” the court must “apply the
law of the State where the injury—the last event required to constitute the tort—occurred.” Lab.
Corp. of Am. v. Hood, 395 Md. 608, 911 A.2d 841, 845 (2006); see also Angeletti, 752 A.2d at
231; Restatement (First) of Conflict of Laws2 § 377 (1934) (“The place of the wrong is . . . where
the last event necessary to make an actor liable for an alleged tort takes place.”).
The place of injury need not be the place where the wrongful act occurred. Johnson v.
Oroweat Foods Co., 785 F.2d 503, 511 (4th Cir. 1986) (citations omitted); see also Restatement
(First) of Conflict of Laws § 377 note 1. Rather, an injury is deemed to occur where the plaintiff
first suffers harm, even if the tortious conduct subsequently results in additional or more severe
harm elsewhere. See Burnside v. Wong, 412 Md. 180, 986 A.2d 427, 438 (2010) (“[A] medical
injury may occur ‘even though all of the resulting damage to the patient’ has not yet occurred.”
(quoting Green v. N. Arundel Hosp. Ass'n, 366 Md. 597, 785 A.2d 361, 368 (2001)); see also St.
George v. Pariser, 253 Va. 329, 484 S.E.2d 888, 890 (1997) (“[A]n injury is deemed to occur . .
. whenever any injury, however slight, is caused by the negligent act, even though additional or
more severe injury or damage may be subsequently sustained as a result of the negligent act.”
(citation omitted)); Restatement (First) of Conflict of Laws § 377 note 1.
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Although the First Restatement of Conflict of Laws is “‘of merely historical interest elsewhere,’” because
Maryland has retained the traditional rule of lex loci delicti, it “‘continues to provide guidance’” for choice-of-law
determinations in this state. Angeletti, 752 A.2d at 231 n.25 (quoting Black v. Leatherwood Motor Coach Corp., 92
Md. App. 27, 606 A.2d 295, 301 (Ct. Spec. App. 1992)).
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The allegations of the complaint make clear that Williams first sustained injury from the
shim while in Virginia. As courts in other jurisdictions have observed, where a foreign object is
erroneously left in a patient’s body during a medical procedure, the legal injury occurs at the
time of that procedure because the patient can immediately bring suit for the object’s removal.
See, e.g., Neubauer v. Owens-Corning FiberGlas Corp., 686 F.2d 570, 572–73 (7th Cir. 1982)
(noting that Wisconsin courts have found the injury to occur “at the time the foreign object was
placed in the body” because “even if [the object was] causing no present discomfort, the plaintiff
could sue immediately for [its] removal”); Melfi v. Mount Sinai Hosp., 64 A.D.3d 26, 877
N.Y.S.2d 300, 309 (App. Div. 2009) (“In [foreign-object] cases, it is indisputable that actual
injury occurs when the foreign object is left inside the body.”); Estate of Genrich v. OHIC Ins.
Co., 318 Wis. 2d 553, 769 N.W.2d 481, 487–88 (2009); Raftery v. Wm. C. Vick Constr. Co., 291
N.C. 180, 230 S.E.2d 405, 409 (1976).3 Therefore, even if she did not begin to experience pain
or other symptoms from the shim’s presence until she relocated to Maryland, Williams’s injury
occurred at the time the object was left in her body.
Moreover, the allegations demonstrate Williams in fact did begin to experience physical
symptoms from the shim’s implantation while in Virginia. She alleges that immediately
following the surgery, while at the Portsmouth Naval Medical Center in Virginia, she suffered
abdominal pain and pressure. This pain, she claims, did not subside over the following months.
Even viewing the allegations in the light most favorable to the plaintiff, this court must infer that
Williams’s pain was not solely a normal aspect of her recuperation from surgery, but rather at
least in part the result of the foreign object left in her body. It is immaterial, then, that the
object’s presence was uncovered in Maryland or that the shim was removed in this state.
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This conclusion is separate from the question of whether the statute of limitations begins to run before the patient
realizes that the object was left in her body. See Melfi, 877 N.Y.S.2d at 309; Estate of Genrich, 769 N.W.2d at 484–
85; Raftery, 230 S.E.2d at 409–10.
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Williams’s injury occurred in Virginia. Accordingly, under the rule of lex loci delicti,
Virginia law governs the plaintiff’s claims.
B. Public Policy Exception
Williams argues that if Virginia law governs her claims under the principle of lex loci
delicti, Maryland public policy so strongly favors strict products liability that this court must
refuse to apply Virginia law on this issue. The Maryland Court of Appeals has recognized a
public policy exception to its general choice-of-law rules. Lab Corp., 911 A.2d at 848. In
acknowledging this exception, however, it has “cautioned . . . that ‘merely because Maryland law
is dissimilar to the law of another jurisdiction does not render the latter contrary to Maryland
public policy.’” Id. (quoting Bethlehem Steel Corp. v. G.C. Zarnas & Co., 304 Md. 183, 498
A.2d 605, 608 (1985)). Instead, “‘for another state’s law to be unenforceable, there must be a
‘strong public policy against its enforcement in Maryland.’’” Id. (quoting Bethlehem Steel, 498
A.2d at 608); see also Texaco, Inc. v. Vanden Bosche, 242 Md. 334, 219 A.2d 80, 83 (1966)
(“Recent legal thinking is that a public policy which will permit a state to refuse to enforce rights
created by the law of a sister state must be very strong indeed.”). The party seeking the
application of the public policy exception bears the “heavy burden” of demonstrating the
existence of a sufficiently strong public policy. Texaco, 219 A.2d at 84.
In the choice-of-law context, the Maryland Court of Special Appeals has defined “public
policy” as “no more and no less than what is believed by the courts and the legislature to be in
the best interest of the citizens of this State.” Linton v. Linton, 46 Md. App. 660, 420 A.2d 1249,
1251 (Ct. Spec. App. 1980). The Maryland Court of Appeals nevertheless has noted that the
“‘[d]eclaration of the public policy of the State is normally the function of the legislative branch
of government.’” Bethlehem Steel, 498 A.2d at 608 n.2 (quoting Jones v. Malinowski, 299 Md.
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257, 473 A.2d 429, 437 n.4 (1984)). Thus, “absent a statement by the legislature that something
is contrary to Maryland public policy,” Maryland courts are “not hesitant to enforce another
state’s law,” even if contrary to Maryland law. Motor Club of Am. Ins. Co. v. Hanifi, 145 F.3d
170, 180 (4th Cir. 1998).
For example, in Harford Mutual Insurance Co. v. Bruchey, 248 Md. 669, 238 A.2d 115
(1968), the Maryland Court of Appeals concluded that Maryland public policy did not require it
to ignore Virginia law, which barred loss-of-consortium claims, in favor of Maryland law, which
recognized such claims, noting that loss of consortium was a common-law doctrine and possibly
“anachronistic.” See id. at 118; see also Erie Ins. Exch., 925 A.2d at 657 (finding the public
policy exception did not require the application of Maryland’s cap on non-economic damages to
a claim involving an uninsured/underinsured motorist insurance policy where “[t]he Maryland
General Assembly has not addressed specifically the issue of the applicability of the noneconomic damages cap to claims for uninsured/underinsured motorist damages”). In contrast, in
Laboratory Corp. of America v. Hood, 911 A.2d 841, the Maryland Court of Appeals found that
public policy required a court to disregard the law of the place of injury—North Carolina—
which did not permit so-called wrongful-birth suits, in favor of Maryland law recognizing this
cause of action in part because the right to bring this type of claim “flow[ed] not only from this
Court’s considered view but [also] from statute.” Id. at 850.
Williams has failed to demonstrate that Maryland’s public policy in favor of strict
products liability is so strong that this court must disregard Virginia law. Strict products liability
was adopted in Maryland by judicial decision, not legislative action, so the General Assembly
has failed to provide the clear directive ordinarily required to trigger the public policy exception.
See generally Phipps v. Gen. Motors Corp., 278 Md. 337, 363 A.2d 955 (1976) (adopting strict
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liability as set forth in Restatement (Second) of Torts § 402A). Nor can it be said that Virginia
law in products cases is so violative of Maryland policy as to warrant the application of the
exception. Although it refuses to adopt strict liability in products cases, Virginia permits claims
for breach of implied warranty that serve as the “functional equivalent” of strict liability. Bly v.
Otis Elevator Co., 713 F.2d 1040, 1045 n.6 (4th Cir. 1983); see also Abbot v. Am. Cyanamid Co.,
844 F.2d 1108, 1114 (4th Cir. 1988) (citing Lust v. Clark Equip. Co., 792 F.2d 436, 438–39 (4th
Cir. 1986)). Indeed, in adopting a theory of strict products liability, the Maryland Court of
Appeals noted that, because courts had dispensed with the requirement of privity, warranty law
allowed for recovery in most cases in which strict liability would apply. Even so, it adopted a
theory of strict liability because “various other requirements and limitations imposed by contract
law may be encountered” by a plaintiff bringing an action for breach of warranty. See Phipps,
363 A.2d at 961. The possibility that a plaintiff may, on occasion, encounter an additional
requirement or limitation in bringing a claim as a result of an injurious product does not establish
that Virginia law is sufficiently contrary to Maryland policy to warrant an exception from normal
choice-of-law principles, particularly as the Maryland legislature did not articulate the relevant
public policy.
Accordingly, Counts IV, V, and VI will be dismissed.
II.
OAI’s Liability on Counts I, II, and III
OAI moves for dismissal or judgment in its favor on the remaining claims because it was
not yet affiliated with the Gyrus Defendants at the time the claims arose. Attached to its motion,
it provided the affidavit of Trevor Tormann, the Executive Director of Corporate Finance and
Accounting for Olympus Corporation of the Americas (“OCA”), the parent of OAI. Tormann
states that OCA acquired control of the Gyrus Defendants on July 31, 2008, and he provides the
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certificate of merger. (Def. OAI’s, Mot. Dismiss or, Alt., Mot. Summ. J., Ex. 1, Tormann Aff. ¶¶
1–6 & Attach.) Before reaching the merits, it must first be determined whether the court may
consider the affidavit at this stage in the case.
The affidavit is neither attached nor integral to the complaint, so it cannot be considered
on a motion to dismiss under Rule 12(b)(6). See Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d
176, 180 (4th Cir. 2009) (citations omitted). A motion to dismiss may be treated as a motion for
summary judgment so long as there is notice to the parties “and ‘a reasonable opportunity to
present all material made pertinent to such a motion by Rule 56.’” Finley Lines Joint Protective
Bd. Unit 200 v. Norfolk S. Corp., 109 F.3d 993, 996 (4th Cir. 1997) (quoting Fed. R. Civ. P.
12(b)(6)). Where, as here, a motion is captioned as a motion to dismiss or, in the alternative, for
summary judgment, the opposing party is placed on notice of the possibility that the motion may
be considered under Rule 56. Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 260–61
(4th Cir. 1998).
The plaintiff argues the court should not dismiss OAI at this stage in the proceeding,
indicating she believes she has not had a sufficient opportunity for discovery. See Gay v. Wall,
761 F.2d 175, 177 (4th Cir. 1985). This litigation is in its early stages, and little discovery has
occurred. Williams, however, has not submitted an affidavit under Rule 56(d) demonstrating the
need for discovery regarding the relationship between OAI, OCA and the Gyrus Defendants. See
Laughlin, 149 F.3d at 261 (“Because appropriate notice was ample, Laughlin’s attorney had the
responsibility, if he thought further discovery was necessary . . . , to make a motion under Rule
56(f)[, now Rule 56(d)].”). Nor has she challenged the veracity of Tormann’s affidavit. Rather,
in her opposition, she argues there is a question of fact as to whether OAI was affiliated with the
Gyrus Defendants at the time her claims arose because she disputes the time of her injury. As
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discussed above, however, it is evident the plaintiff was injured at the time of her first surgery on
February 8, 2008. Therefore, there is no need for further discovery on the dispositive issue, and
this court may properly convert the motion to one for summary judgment.
Under Rule 56, judgment may be granted in OAI’s favor if OAI shows “that there is no
genuine dispute as to any material fact and [it] is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). There is no genuine dispute that, at the time plaintiff’s claim arose, OAI was
not affiliated with the Gyrus Defendants. The plaintiff presents no legal basis for holding a
defendant liable for liabilities of its corporate sibling that predate the sibling’s acquisition by the
defendant’s corporate parent. Cf. Harris v. T.I., Inc., 243 Va. 63, 413 S.E.2d 605, 609 (1992)
(discussing exceptions to the general rule of nonliability of successor corporations).
Accordingly, Olympus may not, as a matter of law, be held liable to plaintiff for her injuries.
For the foregoing reasons, Counts IV, V, and VI will be dismissed as to all defendants,
and summary judgment will be granted in favor of Olympus on the remaining counts. A separate
order follows.
June 9, 2011
Date
/s/
Catherine C. Blake
United States District Judge
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