Delaremore v. Zimmer Inc. et al

Filing 61

MEMORANDUM DECISION AND ORDER dated 10/22/19 denying defendants' 56 Motion to Dismiss. ( Ordered by Judge Brian M. Cogan on 10/22/2019 ) (Guzzi, Roseann)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------BRYANT A. DELAREMORE,

X
:
:
:
Plaintiff,
:
:
- against :
:
ZIMMER, INC. d/b/a ZIMMER BIOMET, et al., :
:
Defendants.
:
----------------------------------------------------------- X

MEMORANDUM
DECISION AND ORDER
17-cv-918 (BMC) (RML)

COGAN, District Judge.
This is a diversity products liability action originally brought by a prisoner acting pro se
who alleged that his hip replacement device, manufactured by defendant Zimmer, failed because
it was defective. His original complaint included an allegation stating: “Beginning in
approximately July 2013, the implant began to inflame its surrounding tissue as a consequence of
its defective nature, causing pain to plaintiff.” 1 He then obtained counsel, and with leave of
court, filed an amended complaint that eliminated the references to when he began to feel pain.
The problem with the 2013 reference in the original complaint is that it arguably shows
that plaintiff was on notice for purpose of the accrual of his claims for statutes of limitations
purposes, and if so, his claims are time-barred. Defendants have moved to dismiss under Rule
12(b)(6) on that basis, citing federal authority that an amended complaint does not preclude
consideration of admissions made in the earlier pleading. Plaintiff counters that in a diversity
case, the statute of limitations is a state law issue under Erie R.R. Co. v. Tompkins, 304 U.S. 64

Defendants cite three statements in the original complaint which they contend show that the claims are timebarred. But the other two statements are mere conclusions.

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1938), and because state law, in contrast to federal law, disregards original pleadings when they
are superseded, see Halmar Distributors, Inc. v. Approved Manufacturing Corps., 49 A.D. 2d.
841, 373 N.Y.S. 2d 599 (1st Dep’t 1975), the allegations in the original complaint cannot be used
against him.
Both sides take too strident an interpretation of the law. Plaintiff does not appreciate that
whether the allegations in the original complaint are admissible against him, notwithstanding a
superseding pleading, is a matter of evidentiary law, and federal rules of evidence answer that
question, even in a diversity case. See Bryndle v. Boulevard Towers, II, LLC, 132 F. Supp. 486,
498 n.3 (W.D.N.Y. 2015) (“[T]he Federal Rules of Evidence, rather than state evidentiary laws,
are held to apply in federal diversity proceedings.”). Conversely, defendant seems to think that
since the statements from the original complaint are admissible, they are conclusive, and
establish a time frame for the statute of limitations from which plaintiff cannot escape.
But to say that allegations in original pleadings are admissible is not to say that they are
conclusive. In Kunglig Jarnvagsstyrelsen v. Dexter & Carpenter, Inc., 32 F.2d 195, 198 (2d Cir.
1929), the Second Circuit recognized the distinction:
When a pleading is amended or withdrawn, the superseded portion ceases to be a
conclusive judicial admission; but it still remains as a statement once seriously
made by an authorized agent, and as such it is competent evidence of the facts
stated, though controvertible, like any other extra-judicial admission made by a
party or his agent.... If the agent made the admission without adequate
information, that goes to its weight, not to its admissibility. There was no error in
receiving the original complaint in evidence.
None of the cases upon which defendants rely on stand for a contrary proposition and are
readily distinguishable. In U.S. v. McKeon, 738 F.2d 26, 31 (2d Cir. 1984), for example, the
Court merely held that criminal defense counsel’s opening statements during a first trial could be

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offered by the prosecution upon re-trial. Although the Court analogized the scenario in McKeon
to the admissibility of original pleadings notwithstanding submission of amended pleadings in
civil litigation, it did not address the key question here – the effect of admitting the statements
from the original pleading. McKeon left the defendant free to argue or distinguish any of the
statements his lawyer had made at the first trial, and left it to the jury to determine the
effectiveness of that effort. 2
The issue is implicated here only because this is a Rule 12(b)(6) motion. It is true that
statute of limitations issues can be resolved in the context of such a motion where the complaint
leaves no doubt that its claims are time-barred. See Ghartey v. St. John’s Queens Hosp., 869
F.2d 160, 162 (2d Cir. 1989). But where, as here, the accrual of a statute of limitations depends
on various facts and circumstances, further factual development may be necessary before the
Court can conclude with legal certainty that the claim is time-barred. See Brooks v. 1st Precinct
Police Dept., 11-cv-6070, 2014 WL 1875037 (E.D.N.Y. May 9, 2014).
Although New York law starts the accrual for the statute of limitations when the plaintiff
first noticed “symptoms”, rather than causation, see Baker v. Stryker Co., 770 F. App’x 12, 14
(2d Cir. 2019), I am not prepared to accept as a matter of law that the “pain” plaintiff allegedly
felt in 2013 necessary constitutes a symptom. The pain may have been fleeting, or plaintiff may
have other reasons why he did not consider it indicative of his symptomology in 2013.

Poindexter v. EMI Record Group, Inc., 11-cv-559, 2012 WL 1027639 at *2 (S.D.N.Y. March 27, 2012), upon
which defendants also rely, dealt with documents annexed to a complaint that directly contradicted the narrative
allegations of the complaint. The other case, Sulton v. Wright, 265 F. Supp. 2d 292, 295 (S.D.N.Y. 2003), although
acknowledging the continued admissibility of statements in original pleadings, did not address the effect of such
statements.
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This is not to say that plaintiff is going to have an easy time distancing himself from the
statement in his original complaint. There may well be medical records or witness observations
that lock him in and permit no reasonable conclusion other than that his claim accrued in 2013.
But the brief statement in the original complaint, although admissible, is not sufficient to dismiss
the amended complaint.
Defendants’ motion to dismiss is therefore denied.
SO ORDERED.

Digitally signed by Brian M.
Cogan
______________________________________
U.S.D.J.

Dated: Brooklyn, New York
October 22, 2019

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