Filing 19

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 05/31/2017. For the reasons stated herein, IT IS HEREBY RECOMMENDED that Defendant's motion to dismiss (Docket Entry 8 ) be converted to a motion for summary judgment, be GRANTED, and that this action be dismissed.(Taylor, Abby)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA CHANCE ITILLIAMS, ) ) ) Plaintiff, v. OLYMPUS AME,RICA., INC., Defendant. ) ) ) ) ) ) 1:17CV98 MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE This mattet is before the Cout on a motion to dismiss filed by Defendant Olympus Amedca, Inc. (Docket Ettry 8.) Plaintiff, Chance ÏTilliams, filed a response to this motion, along with a supporting afftdavit. (Docket Entdes 13, 1,4.) For the fotlowing reasons, the Courtrecommends that Defendant's motion to dismiss be converted to a motion for summary judgment, and be granted. I. BACKGROUND Plaintiff originally filed this action against Defendant in Rowan County Superior Court. The action was removed to this Court on Februart¡ 2,201,7. (Docket E.rtry 1.) According ro the Complaint, Plaintiff is a tesident of Rowan County who ftequently receives medical attention ftom the Veteran's Health Administr afon. (Compl. fl 5, Docket Entry 4.) Defendant is engaged in the business of manufacturing and selling medical devices including endoscopes, which are used fot medical procedures within the human body. (Id.ll2.) This device tequires cleaning and disinfecting after each use. Qd.lt4) According to the Complaint, "la] manufacturer of a medical device [intended for use on multiple patients] has an obligation to develop andvahdate a cleaning and disinfecting ptotocol, and to incotpotate this protocol into the ptoduct's insttuctions." (Id.) On May 5, 201,L, Dt. Joseph Perry performed endoscopy ptocedure on Plaintiff at the 'Womack Atmy Medical Centet. asserts (Id an fl 5.) Plaintiff that"fa]fter this procedure, þe] suffered many painful physical injuries." Qd.ll6.) On Decembet 10, 201.4, Plaintiff teceived a ietter indicating that the Joint Commission "found gaps in \X/omack Atmy Medical Center's cleaning ptocesses and documentation of \X/omack's quality conttol efforts with the endoscope used on the Plaintiff." (Id. Jf 7.) Defendant v/as the manufacturet of the endoscope used duringPlaintiffs procedure. Qd.l8.) Âs a result of his physical injuries, Plaintiff filed this cause of action against Defendant claiming both negligence and bteach of warranties on the part of Defendant. Qd.nn rc-22.) Plaintiff fìled the Complaint in Rowan County Superior Cout on December 28,201,6, after an otdet v/as granted on Decembet 8,201.6 extending the time to file the Complaint. @,x. ,{., Docket Entry 9-1.) ,{fter removing this action to federal court, Defendant filed the instant motion to dismiss pursuant to Rule 12(bX6) of the Federal Rules of Civil Ptocedure. (Docket Entry 8.) Defendant âsserts that PlaintifÎs Complaint falls outside the statute of limitations set fotth in N.C. Gen. Stat. S 1-52(16). (Docket Entry 9 at2.) In response, Plaintiff filed both an opposition bdef and a suppotting afftdavit. (Docket Entries 1,3,14.) The affidavit is not refetred to in the Complaint. 2 II. DISCUSSION Relevant Standatd of Review \)Øhen documents outside dismiss, the motion of the pleadings ate submitted in relation to a motion to to dismiss should generally be converted to a motion fot summary judgment as long as the patties have both notice of the convetsion and an oppottunity for discovery. SeeFed,.R. Civ. P.12(d);Il/oods u. Coluiru,No. 1:15CV763,201,6WL1328951,,at*2 (À4.D.N.C. .,{pr. 5, 201,6) (unpublished) ("Because these documents contain infotmation not referenced in the Complaint, the Commissioner's Motion to Dismiss should be converted into a motion for summary judgment."); Morh WL 2417046, at *2 O{.D.N.C. June u. L.owei Home Ctrs., Inc., No. 1:10-CV-388, 2011 1,3, 201,1) (unpublished) ("\X/hen 'matters outside the pleadings are presented to and not excluded by the court, the fRule 12þ)(6) ] motion must be treated as one fot summary judgment under Rule 56."'). The frst requirement-notice-is satisfied when the court gives the parties "some indication . . . that it is treating the 12þ)(6) motion as a motion fot summary judgment." Gq ,. Il/ø//, 7 61 F .2d 17 5, 177 (4th Cir. 1 985) (intetnal quotation and citation omitted). The second requirement is that the court must affotd the parties "a reasottable opportunity for discovery" befote converting the motion. 1/. (internal quotation and citation omitted). In light of these considerations, the Court issued an order on May both parties that Defendant's motion to dismiss should be converted to judgment, and affording them additional time to indicate issues raised a 1.8,201.7 ,informing motion for summary if additional discovery on the limited in Defendant's motion was necessary. (Docket E,ntry 17.) Plaintiff did not file tesponse, and Defendant's response indicates that J it a "believes the infotmation presently befote the Cout establishes the statute of ìimitations has run on Plaintiffs claim." Q)ocket Entty 18 at 1.) The undersigned therefote concludes that the parties had both notice of the convetsion and a "'reasonable opportunity' to present materials televant tesponse[s]." Derosø u. Coluin, No. 5:14-CY-414-FL,201,4WL 5662771., 4, 201,4) (unpublished); see also IØoods,201,6 WL to [their] Nov. ^t*2 @.D.N.C. 1328951,, at x3 (converting motion to dismiss into summary judgment motion after Plaintiff was given a reasonable opportunity to respond). Thus, the undetsigned finds that the Court should convert Defendant's motion to dismiss into a motion for summary judgment. SummarJ¡ Judgment S ta ndard Summary judgment is appropriate when thete exists no genuine issue of material fact and the moving p^rry is entitled to judgment^s amatter of law. Fed. R. Civ. P. 56(c); Zahodnìck u. Int'l Bas. Machl Corp., 135 F.3d 911, 913 (4th Cir. 1,997). The party seeking summary judgment bears the initial butden genuine issue of mateÅaI fact. of coming forward and demonstrating the absence of Temkin a. Frederick Ct1. Comm'rs, 945 tr.2d 716,71,8 (4th 1,991) (citing Celotex u. Catrett, 477 U.S. 317 , 322 a Ct. (1986). Once the moving party has met its burden, the non-moving party must then affirmatively demonsttate that there is a genuine issue of material fact which requires nu.tal. Matsa¡hita E,lec. Indal Co. u. Zenith Radio Corp.,475 U.S. 574, 587 (1986). Thete is no issue for trial unless there is sufficient evidence favoring the non-moving p^rty such that a fact findet could return a verdict for that party. Anderson u. Uberfl l-nbþt lnc.,477 U.S. 242,250 (1,986); Slluia Deu. Corp. u. Caluert Ct1t., Md.,48 F.3d 810, 81,7 (4th Cir. 1995). Thus, the moving party can bear its burden either by presenting affirmaldve evidence ot by demonsttating that the non-moving party's evidence is insufficient 4 ill, thereby distegarding when Plaintiff received a recall notice for the medication). The statute of limitations can be tolled in the event of alatent injury, but "as soon as the injury becomes apparent to the claimant ot should reasonably complete and the limitation pedod begins to become appafent, the cause run." Pembee of action is Mfg, Corp, u, Caþe Fear Const. Co., 313 N.C. 488,493,3295.8.2d350,354 (1985). "Itdoes notmatterthat futtherdamage could occur; such futher damage is only aggravaion of the original injwy." Id. Here, the undisputed facts befote the Court, viewed in a light most favorable to the Plaintiff, cannot survive summary judgment. The Complaint was originally filed on December 28, 201.6, after an ordet v/as granted on December 8, 201.6 extending the time to file the Complaint. @,x. A, Docket Entty 9-1.) Thus, in order to fall within North Carolina's threeyear statute of limitations, PlaintifPs injury must not have become reasonably apparent until at least December 28, 2013. Pembee,313 N.C. ^t 493, 329 S.E.2d ^t 354. Plaintiff does not allege a specific date in his Complaint when he discovered the injury; however, Plaintiff admits in his afftdavit that he began experiencing "recurrent cough, fever, and weight loss," along with an inability to propedy digest food and constant pain in his digestive system, after the ptocedure performed at ÏTomack Atmy Medical Center on May 4,201.1,. (Pl.'s Aff. n[2-3, Docket Ent y 13.) There is not sufficient evidence in the record to conclude that Plaintiffs injury did not become teasonably appaitent until more than two and a half years after the procedure that allegedly caused it. To the extent Plaintiff asserts that he discovered his injury when he teceived the letter ftom Colonel Ronald T. Stephens on December 1.0,2014, nous'ing Plaintiff of "gaps in the [endoscope] cleaning processes," his argument fails. 6 (See id.fl4; rce al¡oPl.'s Br. at 3, Docket Entty 1.4 ("The mental anguish and suffering he endued did not exist until after receiving the letter.").) Here, Plaintiffls leaming of additional facts about his injury, including the potential tottfeasot, is immatetial as to when he did, in fact, discover the physical injury.l u. I-each,160 N.C. See e.g., Harlel ,\pp. 595, 587 S.E.2d 682,2003 WL 22289873, at*2 Q003) (unpublished) ("Even considered in the light most favorable to the plaintiff, het matetials do not show that her injudes were latent ot unknown to plaintiff, only that she did not realtze the seriousness of such injuries until a latet date."); see also Dorman u. Canpbell,331 S.C. 179, L84,500 S.E.2d 786,789 (Ct. App. 1998) (applying South Carohna law) ("[]he statutory period of limitations begins to run when â person could or should have known, thtough the exercise of reasonable dil-igence, that a cause obtains ^ct*al of action might exist in his or her favor, rather than when a person knowledge of either the potential ciaim or of the facts giving dse thereto."). Having found no genuine issue of materiralfactas to whether the statute of limitations has run on Plaintiffs claim, Defendant's motion should be granted. I The Court further notes that the cases upon which Plaintiff relies are distinguishable. It Black u. Uttlyohn,312 N.C. 626,325 S.E.2d 469 (1985), the North Carol)na Supreme Court âppears to limit its holding to medical malpractice claims applymg N.C. Gen. Stat. $ 1-15(c). That Court held that "plaintifPs cause of action falls within the one-year-ftom-discovery provision of G.S. 1-15(c) because plaintiff was not awate of defendant's wrongful conduct or alleged negligence rn failing to inform her of alternative drug therapies, and that such wrongful conduct wâs not readily appaLrent at the time of surgely but was discovered more than two years thereafter." Id. at 646-47, 325 S.E,.2d at 483. In Crawþrd u. Bo1ette,121 N.C. App. 67, 4645.8.2d 301 (1995), the North Carolina Court of Appeals reviewed a personal i"i"ty ,rrttounding wâter contamination. That Court held thàt the "iuim "þ]laintiff u/as not notified of the tesults until he received a letter dated 6 Aptil 1989. No warnings were provided to plaintiff tegatding petroleum contamination until plaintiff received the State's detailed findings dated2June 1989." Id. at72,464 S.E.2d at304. The Court also noted that "[t]o hold otherwise, would penahze pãrty fot taking precautionary measures while awaiting action from ^ stateagencies." Ld.at71.,4645.8.2d2t304. Neithercaseisapplicabletothefactsintheinstant mâtter. 7 to establish its claim. Celotex, 477 U.S. at 331 (Btennan, J., dissenting). When making the summary judgment determination, the Court must view the evidençs-¿¡d all jusufiable inferences to be dtawn ftom the evidence-in the light most favorable to the non-moving parry. Zahodnick,135 F.3d at 91,3; Haþerin u. Abacas Tech. Corp., 128 F.3d 191, 196 (4th Cir. 1997). Howevet, the parq opposing summary judgment may not rest on mere allegations or denials, and the coutt need not considet "unsuppotted assettions" or "self-serving opinions without objective cottoboration." Euan¡ Ctr.1996); Anderson, 477 U.S. u. Tech¡. Applicatioa¡ dy Seru, C0.,80 F.3d 954, 962 (4th ^t248-49. Statute of Limitations It is undisputed that North Catolina law applies in this case. The statute of limitations in a personal injury action in North Caroltna is three years. Il/illiam¡ u. Aduance Aato Parts,Inc., 795 S.E.2d 647, 651. GN.C. Ct. App. 2017) (citing N.C. Gen. Stat. g 1-52(16) (2015)); rce also Drigtrs u. Sofamor, J.¡t C, 44 F. Supp .2d760,766 (À4.D.N.C. 1998) ("The statute of limitations fot a petsonal injury claim sounding in negligence is three years under N.C. Gen. Stat. $ 152(5)."). This thtee-yeat limitation also applies to bteach of. wananq acdons. J¿¿ N.C. Gen. Stat. $ 1,-52(1). In petsonal injury cases, the statute of limitations begins to run when "bodily harm to the claimant . . . becomes appârent or ought reasonably to have become apparent to the claimant, whichever event first occuts." N.C. Gen. Stat. S 1-52(16). As Defendant correctly asserts, in this instance, the statute of limitations does not wait for the injued party to learn that the cause of his i"j"ry might be tortious. See Koehler u. Nte-Aid Pharrnary, No. 3:1'2CY46,2012VÌI- 8961.44, at *2 CW.D.N.C. Mat. 15, 201,2) (unpublished) (finding that the stâtute of limitations began running on plaintiffs ptoduct liabiüty claim when he began feeling 5 III. CONCLUSION For the reasoris stated herein, Defendant's motion IT IS HEREBY RECOMMENDED that to dismiss pocket E.,tty S) be converted to a motion fot summary judgment, be GRANTED, and that this action be dismissed. U May 31.,201,7 Durham, Noth Carchna 8 'Víebstet oe L. States Magistrate Judge

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