Pepke et al v. Howmedica Osteonics Corp.

Filing 23

MEMORANDUM OPINION and ORDER Granting Defendant's Motions to Dismiss [Good, 10 ; Pepke, 11 and Denying Defendant's Motions to Strike [Good, 11 ; Pepke, 12 as Moot - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Phyllis Ann Good,
Plaintiff,
v.

Case Nos. 15-cv-10133
15-cv-10134
Hon. Judith E. Levy
Mag. Judge R. Steven Whalen

Howmedica Osteonics Corp.,
Defendant
and
Stephen Pepke and Tara Pepke,
Plaintiffs,
v.
Howmedica Osteonics Corp.,
Defendant.
________________________________/

OPINION AND ORDER GRANTING DEFENDANT’S MOTIONS
TO DISMISS [GOOD, DKT. 10; PEPKE, DKT. 11] AND DENYING
DEFENDANT’S MOTIONS TO STRIKE [GOOD, DKT. 11; PEPKE,
DKT. 12] AS MOOT1

The Court will refer to Case No. 15-cv-10133 as “Good” and Case No. 15-cv-10134
as “Pepke” in citations to the record.
1

These are products liability cases. Plaintiffs Phyllis Ann Good
and Stephen Pepke each allege that they have experienced injury
following the implantation of CerviCore Disc devices, which are
manufactured by defendant.

Pending are motions to dismiss both

complaints.
I.

Factual Background

Plaintiffs initially filed suit in the Southern District of Illinois on
April 11, 2014, along with seven other recipients of the CerviCore
device, and four other spouses. McGrew v. Howmedica Osteonics Corp.,
Case No. 14-cv-430 (S.D. Ill.).
Of the fourteen plaintiffs, only one plaintiff resided in Illinois:
Carol McGrew.

The rest resided in a variety of other states.

On

January 13, 2015, the court granted defendant’s motion to sever the
plaintiffs and transfer venue of each of the McGrew plaintiffs’ cases to
their home states. (Good, Pepke, Dkt. 2.) On January 30, 2015, the
Court held a telephonic status conference with counsel and set
February 20, 2015 as the date for plaintiffs to file amended complaints
and April 1, 2015 as the date for defendant to file a responsive pleading
to each complaint.
2

Plaintiffs filed their amended complaints on February 21, 2015.
Their amended complaints have been appended to the original
complaint plaintiffs joined in Illinois. Plaintiffs allege that defendant
manufactured the CerviCore device, and that it was defective. Good
had a CerviCore device implanted on February 21, 2008. (Good, Dkt. 9
at 23.) Stephen Pepke had a CerviCore device implanted on March 20,
2008. (Pepke, Dkt. 10 at 23.)
Good alleges that “[a]round two months after the surgery, [she]
began suffering from rashes,” and “[l]ater that year, when the pain was
so great she could no longer move her neck, [she] began receiving pain
management treatments.” (Good, Dkt. 9 at 23.) Pepke alleges that
“[w]ithin a few days of implantation, [he] began experienc[ing] extreme
pain,” and that the “pain worsened over the next two years.” (Pepke,
Dkt. 10 at 23.)
Plaintiffs bring thirteen similar claims: 1) Design Defect, 2)
Manufacturing Defect, 3) Failure to Warn, 4) Negligence, 5) Gross
Negligence, 6) Fraud by Concealment, 7) Fraudulent Misrepresentation,
8) Negligent Misrepresentation, 9) Breach of Contract, 10) Breach of
Express Warranty, 11) Breach of Implied Warranty, 12) Infliction of
3

Emotional Distress, and 13) Michigan Statutory and Common Law
Remedies. Plaintiff Tara Pepke brings an additional claim for loss of
consortium.
Defendant timely filed a motion to dismiss each complaint and a
motion to strike certain paragraphs of each complaint on April 1, 2015.
Oral argument was held on the motions on August 27, 2015.
II.

Legal Standard

When deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6),
the Court must “construe the complaint in the light most favorable to
the plaintiff and accept all allegations as true.” Keys v. Humana, Inc.,
684 F.3d 605, 608 (6th Cir.2012). “To survive 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.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). A plausible claim need not contain “detailed
factual allegations,” but it must contain more than “labels and
conclusions” or “a formulaic recitation of the elements of a cause of
action[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
III. Analysis
A. Timeliness of Motions to Dismiss
4

Plaintiffs argue that defendant’s motions to dismiss are untimely,
because defendant already answered their initial complaints in Illinois.
Because an answer was already filed at some point in the litigation,
plaintiffs contend that defendant cannot now file a motion to dismiss in
response to plaintiffs’ amended complaints. Plaintiffs also argue that
the motion cannot be converted to a motion for judgment on the
pleadings, because defendant has not filed an answer to the amended
complaint.
Fed. R. Civ. P. 15(a) permits parties to file the same “required
response” to an amended pleading, governed by Fed. R. Civ. P. 12, that
parties would have been able to file in response to the original pleading.
Plaintiffs’ argument is self-refuting on its face: defendants cannot both
be punished for filing an answer in Illinois and not filing an answer in
Michigan. The motions to dismiss were timely filed and are properly
considered at this stage.
B. Choice of Law
Plaintiffs contend that, because this case was filed in Illinois,
Illinois substantive law and statutes of limitations apply, while

5

defendant argues that Michigan substantive law and statutes of
limitations apply.
Because the case was filed in Illinois, Illinois’ choice of law rules
apply. In re Dow Corning Corp., 778 F.3d 545, 549-50 (6th Cir. 2015).
Illinois courts apply the “most significant contacts” test, “which involves
balancing a number of factors, including the place where the injury
occurred; the place where the conduct causing the injury occurred; the
domicile or place of business of each party; and the place where the
relationship between the parties is centered.” Ennenga v. Starns, 677
F.3d 766, 774 (7th Cir. 2012).
Each of these factors requires that Michigan law be applied.
First, plaintiffs had the devices implanted in Michigan, and dealt with
the alleged injuries resulting from the implantations in Michigan.
Second, the conduct causing the injuries (the implantation of the
allegedly defective device) occurred in Michigan. Third, plaintiffs are
both Michigan residents, and defendant is a New Jersey corporation.2

Plaintiffs attempt to argue that defendant is a resident of Illinois because it does
business in Illinois. However, under Illinois law, “a corporation can have but one
residence, that being the State of its creation.” LeBlanc v. G.D. Searle & Co., 178
Ill. App. 3d 236, 239 (1988) (further citation omitted). Defendant was founded in
New Jersey, and so is a resident of New Jersey for the purposes of these actions.
2

6

Finally, the relationship between the parties is centered in Michigan,
where plaintiffs reside and have sought medical treatment.3
Illinois courts, however, will generally apply the Illinois statute of
limitations “because statutes of limitations are procedural, fixing the
time in which the remedy for a wrong may be sought rather than
altering substantive rights.” Freeman v. Williamson, 383 Ill. App. 3d
933, 939 (2008). The exception to this is Illinois’ Borrowing Statute,
which states that “[w]hen a cause of action has arisen in a state or
territory out of this State, or in a foreign country, and, by the laws
thereof, an action thereon cannot be maintained by reason of the lapse
of time, an action thereon shall not be maintained in this State.” Ill.
Comp. Stat. Ann. Ch. 735 § 5/13-210.
Therefore, the Court will determine whether the claims brought in
Illinois were barred by Michigan’s statutes of limitations at the time of
their initial filing.

If they were, Michigan’s statutes of limitations

apply; if they were not, Illinois’ statutes of limitations apply.
C. Statutes of Limitations – Michigan Law

This is further bolstered by the fact that plaintiffs each requested Michigan
statutory and common law remedies in the alternative to the common law theories
otherwise pled.

3

7

a. Product Liability Claims
Michigan law’s product liability statute is expansive, and brings
under its umbrella any “action based on a legal or equitable theory of
liability brought for . . . injury to a person or damage to property caused
by or resulting from the production of a product.” M.C.L. § 600.2945(h).
“Production means manufacture, construction, design, formulation,
development

of

standards,

preparation,

processing,

assembly,

inspection, testing, listing, certifying, warning, instructing, marketing,
selling, advertising, packaging, or labeling.” M.C.L. § 600.2945(i).
Defendant correctly argues that under Michigan law, a court is to
“determine the gravamen of a party’s claim by reviewing the entire
claim, and a party cannot avoid dismissal of a cause of action by artful
pleading.” Att’y Gen. v. Merck Sharp & Dohme Corp., 292 Mich. App. 1,
10 (2011). With the exception of the breach of contract, fraud, and loss
of consortium claims, the claims in this matter are all (1) based on a
legal or equitable theory of liability, (2) brought for injury to a person,
and (3) alleging that the loss was caused by or resulted from the
manufacture,
standards,

construction,
preparation,

design,

formulation,

processing,
8

development

assembly,

of

inspection,

testing, listing, certifying, warning, instructing, marketing, selling,
advertising, packaging, or labeling of a product.

Id. at 10-11.

Accordingly, plaintiff’s design defect, manufacturing defect, failure to
warn, negligence, gross negligence, negligent misrepresentation, breach
of express warranty, breach of implied warranty, and catch-all
Michigan statutory and common law remedy claims all sound as
product liability claims.
The statute of limitations for product liability claims is three
years. M.C.L. § 600.5805(13). “Except as otherwise expressly provided,
the period of limitations runs from the time the claim accrues,” which in
this case is “at the time the wrong upon which the claim is based was
done regardless of the time when damage results.” M.C.L. § 600.5827.
Specifically, “[t]he wrong is done when the plaintiff is harmed rather
than when the defendant acted.” Boyle v. Gen. Motors Corp., 468 Mich.
226, 231 n.5 (2003).
The Michigan Supreme Court has stated that “the plain language
of M.C.L. § 600.5827 precludes the use of a broad common-law discovery
rule to toll the accrual date of claims[.]” Trentadue v. Gorton, 479 Mich.
378, 407 (2007). Accordingly, the wrong is done at the first moment of
9

harm, and is not tolled because the plaintiff did not discover the harm
until later.
Michigan courts have specifically held that there is no continuing
wrongs doctrine in “cases involving products liability actions seeking
damages for personal injury[.]” Blazer Foods, Inc. v. Rest. Props., Inc.,
259 Mich. App. 241, 247 (2003) (citing Asher v. Exxon Co. U.S.A., 200
Mich. App. 6353 (1993)).

Michigan’s products liability statute of

limitations is not tolled because the wrong is not abated. “[A] separate
cause of action [will not] accrue each day that defendant’s tortious
conduct continues.”

Id. at 246 (quoting Jackson Co. Hog Prods. v.

Consumers Power Co., 234 Mich. App. 72, 81 (1999)).
The statute of limitations on Good’s product liability claims began
running around two months after her CerviCore device was implanted
on February 21, 2008, when she began experiencing rashes.

(Good,

Dkt. 9 at 23.) At the latest, that period began running “[l]ater that year
[in 2008], when the pain was so great she could no longer move her
neck[.]” (Id.) At the latest, the statute of limitations ran on Good’s
product liability claims some time in 2011, well before Good filed suit on
April 11, 2014.
10

The statute of limitations on Pepke’s product liability claims
began running “[w]ithin a few days of [the March 20, 2008]
implantation” when he “began experienc[ing] extreme pain[.]” (Pepke,
Dkt. 10 at 23.) At the latest, the statute of limitations ran on Pepke’s
product liability claims in late March 2011, well before Pepke filed suit
on April 11, 2014.
For these reasons, Good and Pepke’s claims for design defect,
manufacturing defect, failure to warn, negligence, gross negligence, and
breach of implied warranty are barred by the applicable three-year
statute of limitations.
b. Fraud Claims
Fraud claims under Michigan law are subject to a six-year statute
of limitations. M.C.L. § 600.5813. As set forth above, Michigan courts
classify all claims related to product liability as product liability claims.
On review of relevant Michigan caselaw, it is unclear whether the
specific statute of limitations for fraud cases is subsumed by the broadly
applicable three-year products liability statute of limitations when a
plaintiff is alleging fraud in relation to disclosure of a product defect. It
is immaterial, however, because the fraud claims are barred by the six11

year statute of limitations, to which the discovery rule also does not
apply. See Boyle v. Gen. Motors Corp., 468 Mich. 226, 231-232 (2003)
(holding that the discovery rule does not apply to the accrual of actions
for fraud).
In each of their fraud claims, plaintiffs argue that but for the
fraud, they would not “have allowed the devices to be implanted in their
bodies.” (Good, Dkt. 9 at 37, 38; Pepke, Dkt. 10 at 37, 38.) Accordingly,
the fraud had to have occurred before their implantations. The statute
of limitations on their fraud claims, accordingly, ran on or before
February 21, 2014 for Good and March 20, 2014 for Pepke.

Both

plaintiffs’ claims expired before they filed suit in Illinois on April 11,
2014.
Plaintiffs’ negligent misrepresentation claims likewise may have
either the three-year period of limitations applicable to personal injury
claims or the six-year statute of limitations applicable to fraud claims,
depending on whether the claim sounds in personal injury or damages
to financial expectations. Bowman v. Greene, Dkt. No. 308282, 2013
WL 5925995, at *4-5 (Mich. Ct. App. Nov. 5, 2013). Under either time
period, dismissal is required.
12

Plaintiffs argue that but for the negligent misrepresentation,
“they would not have allowed the devices to be implanted in their
bodies.”

(Good, Dkt. 9 at 38; Pepke, Dkt. 10 at 38.)

The negligent

misrepresentation must have occurred before their implantations, and
because the common law discovery rule is inapplicable to both personal
injury and fraud claims, the statute of limitations on plaintiff’s
negligent misrepresentation claims ran either in 2011 or shortly before
suit was filed in 2014.
c. Infliction of Emotional Distress
Plaintiff’s infliction of emotional distress claims are also subject to
a three-year statute of limitations, and must be brought within three
years after the claim accrues. Nelson v. Ho, 222 Mich. App. 74, 85
(1997). The claims are likewise subject to M.C.L. § 600.5827, which
provides that “the claim accrues at the time the wrong upon which the
claim is based was done regardless of the time when damage results.”
Plaintiffs allege that defendant either intentionally or negligently
inflicted emotional distress through the same acts that underlie most of
plaintiffs’ other claims: “concealing and ignoring CerviCore’s risks, by
concealing, ignoring, and refusing to correct repeated deficiencies in its
13

manufacturing processes, by misleading [plaintiffs] about the contents
of CerviCore, by misleading them about Howmedica’s commitment to
care for their health, and by not actually providing follow-up care as
promised.” (Good, Dkt. 9 at 42; Pepke, Dkt. 10 at 42.) This makes the
emotional distress claims hybrid claims based in part on product
liability claims, in part on fraud claims, and in part on breach of
contracts claims.
In Kott v. Howmedica Osteonics, Case No. 15-cv-11349, the Court
treated plaintiff’s identical infliction of emotional distress claim as a
products liability claim, as it fulfilled all of the elements of a products
liability claim under Michigan law, even with the additional allegations
based on fraud and breach of contract. (Kott, Dkt. 12 at 12.) That is the
correct analysis, but the breadth of plaintiffs’ allegations in these claims
merits further discussion.
To plead intentional infliction of emotional distress, a plaintiff
must show “(1) extreme and outrageous conduct, (2) intent or
recklessness, (3) causation, and (4) severe emotional distress.” Graham
v. Ford, 237 Mich. App. 670, 674 (1999).

Negligent infliction of

emotional distress “requires that the plaintiff must have witnessed a
14

negligent injury to a third party.” Teadt v. Lutheran Church Missouri
Synod, 237 Mich. App. 567, 582 n.6 (1999).
Intentional infliction of emotional distress claims “accrue[] when
all the elements of the claim have occurred and can be alleged in a
proper complaint.”

Schaendorf v. Consumers Energy Co., 275 Mich.

App. 507, 512 (2007) (citation omitted). What plaintiffs have pleaded
here is a course of conduct beginning with fraud and concealment
predating

their

2008

implantations,

continuing

through

the

implantation of allegedly defective devices, and ending with an alleged
breach of contract.
As mentioned previously, the definition of a products liability
action under Michigan law is any “action based on a legal or equitable
theory of liability brought for . . . injury to a person or damage to
property caused by or resulting from the production of a product.”
M.C.L. § 600.2945(h). The statute does not say that this basis must be
the sole basis for the action, but instead that the action must be based
on the aforementioned characteristics.
Plaintiffs’ infliction of emotional distress claims are based on a
legal or equitable theory of liability brought for injury to a person
15

caused by or resulting from the production of a product. Therefore, the
claims accrued when the plaintiffs were first harmed – in this case,
when the pattern of conduct alleged began. That was at some point
prior to February 21, 2008 for Good, and March 20, 2008 for Pepke. The
continuing wrongs doctrine may not be applied to products liability
claims, and so plaintiffs’ later allegations – even those allegations that
occurred within the three years before they filed suit – cannot revive
their claims.
The claims are, accordingly, time-barred and must be dismissed.4
d. Breach of Contract
Defendant does not argue that plaintiffs’ breach of contract claims
are barred by Michigan’s applicable six-year statute of limitations.
M.C.L. § 600.5807(8).

Plaintiffs’ breach of contract claims do not

identify a date on which the breach of contract occurred.

However,

there are only a few relevant weeks outside of the statute of limitations
for both Good and Pepke during which the contract could have been
breached: between February 21, 2008 and April 11, 2008 for Good, and

The Court also notes that plaintiffs have failed to state claims for negligent
infliction of emotional distress, as they do not allege that they witnessed negligent
injuries to any third parties.
4

16

March 20, 2008 and April 11, 2008 for Pepke.

The Court cannot

determine at this point whether plaintiffs’ breach of contract claims
might be time-barred under Michigan law.
Because plaintiffs’ breach of contract claims are not barred by
Michigan law, the Court must determine whether the breach of contract
claims are barred by Illinois’ statute of limitations.

The statute of

limitations on a written contract in Illinois is ten years, making this
claim timely. 735 Ill. Comp. Stat. 5/13-206. The Court notes, however,
that if evidence establishes that defendant’s first alleged breaches
occurred on or before April 11, 2008, the claims may be time-barred due
to Michigan’s rejection of the continuing wrongs doctrine in contract
cases.

Blazer Foods v. Rest. Props., Inc., 259 Mich. App. 241, 251

(2003).
D. Fraudulent Concealment
Plaintiffs argue that the applicable statutes of limitations are
tolled either by Michigan’s fraudulent concealment rule, M.C.L. §
600.5855, or by equitable estoppel based on fraudulent concealment.5

Because the Court must, by operation of Illinois law, determine whether plaintiffs’
claims are timely filed in Michigan, the Court must apply Michigan’s fraudulent
concealment rule.

5

17

Michigan’s fraudulent concealment rule provides:
If a person who is or may be liable for any claim fraudulently
conceals the existence of the claim or the identity of any
person who is liable for the claim from the knowledge of the
person entitled to sue on the claim, the action may be
commenced at any time within 2 years after the person who
is entitled to bring the action discovers, or should have
discovered, the existence of the claim or the identity of the
person who is liable for the claim, although the action would
otherwise be barred by the period of limitations.
M.C.L. § 600.5855.
To prove fraudulent concealment, “[t]he plaintiff must show that
the defendant engaged in some arrangement or contrivance of an
affirmative character designed to prevent subsequent discovery.”
Tonegatto v. Budak, 112 Mich. App. 575, 583 (1982). “[T]here must be
concealment by the defendant of the existence of a claim or the identity
of a potential defendant[.]” McCluskey v. Womack, 188 Mich. App. 465,
472 (1991). “[The] plaintiff must plead in the complaint the acts or
misrepresentations that comprised the fraudulent concealment.” Sills
v. Oakland Gen. Hosp., 220 Mich. App. 303, 312 (1996). “For a plaintiff
to be sufficiently apprised of a cause of action, a plaintiff need only be
aware of a possible cause of action.” Doe v. Roman Catholic Archbishop
18

of Archdiocese of Detroit, 264 Mich. App. 632, 643 (further citations
omitted).
Plaintiffs argue that defendant fraudulently concealed their
claims to the extent that that the two year statute of limitations
following discovery of the existence of the claim has yet to run, because
defendant “continues, to this day, to conceal the existence of the claims
and its own identity as the wrongdoer.” (Dkt. 8 at 14.)
This argument is not credible in light of the fact that plaintiffs
filed suit.

Either plaintiffs know of their claims, as proven by the

lawsuit asserting them, or plaintiffs do not know of their claims, and
the lawsuit is baseless. The Court must treat the lawsuit asserting
plaintiff’s claims as conclusive evidence that plaintiff is, in fact, aware
of her claims.
Plaintiffs have also failed to plead fraudulent concealment in their
complaints. Plaintiffs reference “fraudulent concealment” three times
in their complaint, all in the same paragraph. (Good, Dkt. 9 at 27;
Pepke, Dkt. 10 at 27.)

Plaintiffs do not plead the acts or

misrepresentations that comprised the fraudulent concealment, but
assert only “Howmedica’s fraudulent concealment, through affirmative
19

misrepresentations

and

omissions

from

Plaintiffs

and/or

their

physicians” and argue that because of this concealment, they could not
have known or learned through reasonable diligence of the risks they
faced. (Id.; Id.)
It is impossible to discern from the complaint what acts or
misrepresentations plaintiffs allege constitute defendant’s fraudulent
concealment. Accordingly, plaintiffs have not met their burden, and the
Court cannot find that defendant fraudulently concealed any of
plaintiffs’ claims.
E. Breach of Contract Claim
Defendant has moved to dismiss plaintiffs’ breach of contract
claims on the grounds that the contractual language asserted does not
establish a duty owed by defendant to plaintiffs.
The elements of a breach of contract claim under Michigan law are
(1) the existence of a contract between the parties, (2) the terms of the
contract requiring performance of a certain action, (3) a breach, and (4)
the breach causing injury to the other party. Synthes Spine Co., L.P. v.
Calvert, 270 F. Supp. 2d 939, 942 (E.D. Mich. 2003).

20

Plaintiffs argue that defendant breached the following portion of
the informed consent agreement, signed before implantation:
Medical treatment will be offered if you experience a
complication or injury as a result of your participation in the
clinical study. You (or your insurance carrier) will be
financially responsible for costs to treat a research-related
complication or injury. The study Sponsor [Howmedica] will
reimburse the hospital and/or your study doctor for costs for
necessary medical treatment for an injury or complication
you experience that is solely as a direct result of the use of a
CerviCore implant according to the study protocol and the
costs for medical treatment are not covered by any
responsible third party payer and are not attributable to
negligence or misconduct by you, the hospital, or the study
doctor.
(Good, Dkt. 9 at 19-20; Pepke, Dkt. 10 at 19-20.) Plaintiffs also allege
that in or around 2010, an addendum was presented that stated the
following:
Medical treatment will be offered if you experience a
complication or injury as a result of your participation in the
clinical study.
If it is determined by the Principal
Investigator that the CerviCore device must be removed, the
study Sponsor will cover the cost of the explant surgery if
the explant surgery is performed at the Institution. You (or
your insurance carrier) will be responsible for costs to treat a
research related complication or injury, including a
complication or injury resulting from an explant surgery,
unless the complication or injury is directly related to the
21

CerviCore device and is treated at the Institution. In this
case, the study sponsor will cover the cost of treating the
complications or injury. The study sponsor will not provide
any other form of compensation for injury.
(Id. at 20.)
Plaintiffs contend that these clauses required defendant to provide
medical care and monitor the health of those patients who received
CerviCore Discs. Defendant contends that these clauses did not require
it to provide medical care or to monitor the health of CerviCore
patients.
Interpretation of the plain language of a contract determines the
legal effect of the language within, and the Court’s legal analysis does
not entitle plaintiffs “to the same presumption in favor of the
nonmovant as . . . factual allegations when a court rules on a motion to
dismiss.” DeClercq v. JP Morgan Chase Bank, N.A., 618 Fed. Appx.
834, 836 (citing Twombly, 550 U.S. at 555).
The first contract clause plaintiffs reference states that “[m]edical
treatment will be offered if you experience a complication or injury as a
result of your participation in the clinical study.”

Based on this

language, plaintiffs contend that defendant had a contractual duty to
22

provide medical treatment. This passive-voice sentence does not say
who will offer the medical treatment.
Reading further, the clause states that defendant “will reimburse
the hospital and/or your study doctor for costs for necessary medical
treatment for an injury or complication you experience . . . .”

The

contract creates a duty on defendant’s part to reimburse a third party
for medical treatment that third party provided. The contract does not
state that defendant is a “hospital” or “study doctor.” Instead, it states
that the hospital and/or study doctor will provide medical treatment
and that defendant will, in turn, cover the costs of that care in certain
circumstances.

If defendant were obligated to provide the medical

treatment, it would not need to establish a provision to reimburse itself
for the treatment it provided.
In operation, the contract does not state that defendant must
provide medical treatment. It also contains no provision that can be
read to create a duty on its part to monitor the health of patients. The
2010 addendum reinforces this interpretation of the contract. It states
that “[i]f it is determined by the Principal Investigator that the
CerviCore device must be removed, the study Sponsor will cover the
23

cost of the explant surgery if the explant surgery is performed at the
Institution.” The Principal Investigator (whom plaintiffs do not contend
is defendant) is to determine whether the CerviCore device must be
removed. Defendant covers the cost of the surgery, but is not the entity
providing the actual treatment.
Plaintiffs have provided no contract language creating a duty on
the part of defendant to do anything other than cover the cost of certain
care, with other entities providing that care.

Accordingly, plaintiffs

have failed to state a claim for breach of contract.
F. Loss of Consortium Claim
Plaintiff Tara Pepke asserts a claim for loss of consortium. Loss of
consortium claims are independent claims derivative of underlying
bodily injury claims. Wesche v. Mecosta Cnty. Road Comm’n, 480 Mich.
75, 85 (2008).

Because Stephen Pepke has no bodily injury claims

remaining in this case, Tara Pepke’s loss of consortium claim has no
claim of which it could be derivative. Accordingly, Tara Pepke’s loss of
consortium claim is dismissed.
G. Denial of Leave to Amend

24

Plaintiffs seek leave to amend their complaints “[s]hould the
Court determine any of [their] claims fail on procedural (as opposed to
substantive) grounds[.]” (Good, Dkt. 15 at 32; Pepke, Dkt. .) Under
Fed. R. Civ. P. 15(a)(2), “[t]he court should freely give leave [to amend a
complaint] when justice so requires” if the party has already amended
her

pleadings

has.

once

as

a

matter

of

course,

which

plaintiff

“A motion to amend a complaint should be denied if the

amendment is brought in bad faith, for dilatory purposes, results in
undue

delay

or

prejudice

to

the

opposing

party,

or

would

befutile.” Crawford v. Roane, 53 F.3d 750, 753 (6th Cir.1995).
Here, plaintiffs seek leave to amend their complaints to avoid
dismissal on statute of limitations grounds. However, the Court can
discern no way that plaintiffs could successfully amend their complaint
to survive a Rule 12(b)(6) motion to dismiss on statute of limitations
grounds unless they removed numerous pertinent facts from their
complaints.

Those facts would include the time at which plaintiffs

started experiencing complications from the CerviCore devices, and the
time at which plaintiffs believe they were first defrauded.

25

Such an amendment would not be brought in good faith.

The

purpose of the amendment would be to remove or alter otherwise
dispositive facts from the complaint in order to survive a motion to
dismiss.

The amendment would, at best, unnecessarily extend this

litigation until summary judgment, when the Court would again be
required to hold the same claims time-barred under the relevant
statutes of limitations.
Leave to amend the complaint is therefore denied.
IV.

Conclusion

For the reasons set forth above, it is hereby ordered that:
Defendant’s motions to dismiss (Good, Dkt. 10; Pepke, Dkt. 11) are
GRANTED;
Defendant’s motions to strike (Good, Dkt. 11; Pepke, Dkt. 12) are
DENIED AS MOOT; and
Plaintiffs’ complaints are DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.

Dated: December 8, 2015
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on December 8, 2015.

s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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