WILLIAMS v. OLYMPUS AMERICA, INC.
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)
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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