Apple v. Stryker Corporation

Filing 9

Memorandum of Opinion and Order denying as moot Defendant's Motion to dismiss for failure to state a claim (Related Doc # 4 ); denying as moot 5 Plaintiff's Motion to Amend. Plaintiff directed to file by 4:00 PM on 7/8/13 an amended complaint that fully, accurately and precisely details the facts supporting each of OPLA claims. Judge Dan Aaron Polster on 6/25/13.(P,R)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

HINDA APPLE,
Plaintiff,
vs.
STRYKER CORP., et al.,
Defendants.

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Case No. 1:13-cv-01169
Judge Dan Aaron Polster
MEMORANDUM OF OPINION
AND ORDER

Before the Court is Defendant Stryker Corporation’s Motion to Dismiss pursuant to Fed.
R. Civ. Pro 12(b)(6) (Doc #: 4), and Plaintiff’s Motion to Amend, etc. (Doc #: 5). For the
following reasons, the Court directs Plaintiff to file an amended complaint consistent with this
opinion, and denies as moot the pending motions.
I.
On September 18, 2010, Plaintiff Hinda Apple underwent surgery to repair a fractured
left femur. (Doc #: 5-1 at 1.) Surgeons implanted four pieces of hardware manufactured by
Defendant Stryker Corporation (“Stryker”) to reduce the fracture. (Id.) On April 11, 2011,
Plaintiff underwent a second surgery due to the “failed hardware” and nonunion of the
previously fractured femur. (Doc #: 5-2 at 1.) In doing so, doctors removed “the broken
intramedullary nail,” presumably manufactured by Stryker, that had previously been implanted
during the September 2010 surgery. (Id.)

On April 13, 2013, Plaintiff filed a Complaint alleging the full panoply of statutory
product liability claims against Stryker “and/or The John Doe Defendants” under the Ohio
Products Liability Act (OPLA), O.R.C. §§ 2307.74-77. (Doc #: 1 (“Comp.”) ¶¶ 7-8.) The
Complaint also alleges common-law negligence claims against Stryker and the John Doe
Defendants. (Id. ¶ 9.) More specifically, the Complaint alleges that an “Intramedullary Skeletal
Kinetic Distractor rod,” manufactured by “these defendants,” was inserted in Plaintiff’s left
femur during a surgery performed on June 3, 2010 – which device failed causing her to sustain
injury to her left leg and its related anatomical structures.” (Id. ¶¶ 3-4.)
On May 31, 2013, Defendant filed the pending Rule 12(b)(6) Motion to Dismiss.
(Doc #: 4.) Defendant contends that (1) the common-law negligence claims are abrogated by the
statutory product liability claims under OPLA, (2) the statutory product liability claims are time
barred because Plaintiff filed her claims more than two years after the allegedly defective
hardware was implanted, and (3) the statutory claims are inadequately pled. (Id.)
On June 7, 2013, Plaintiff filed a combined brief in opposition to Defendant’s motion to
dismiss, motion to correct the complaint by interlineation and, in the alternative, motion for
extension of time. (Doc #: 5.) Attached to this document are two exhibits which form the basis
for the facts the Court alleged in the first paragraph of this section. They are the hospital records
for Plaintiff’s two surgeries which document the surgical implantation of four Stryker devices on
September 18, 2010, and the removal of failed Stryker hardware, including a broken
intramedullary nail, on April 11, 2011. Unfortunately, Plaintiff’s counsel neglected to accurately
and completely articulate any of these relevant, material facts in the Complaint.

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That said, Plaintiff asks the Court to substitute the erroneous date of the initial surgery
(June 3, 2010) with the correct date (September 18, 2010). (See generally Doc #: 5.) She
contends that the corrected date is irrelevant in any event because the statute of limitations does
not accrue until the plaintiff actually discovers, or reasonably should have discovered, that a
defendant’s product failed – not the date the device was implanted. (Id.) Plaintiff also argues
that it was disingenuous of Defendant to file the motion to dismiss challenging the identification
of the hardware manufacturer because she had given a copy of the hospital records to Defendant
prior to Defendant filing the pending motion. (Id.) Lastly, Plaintiff asks for time to conduct
discovery to determine why the Stryker product failed.
II.
To survive a motion to dismiss, a complaint must contain enough factual matter to “state
a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). The complaint need not include
detailed factual allegations, but the plaintiff must plead enough factual content to allow the court
to reasonably infer that the defendant is liable for the alleged misconduct. Id. Simply reciting
the basic elements of a cause of action along with conclusory statements is not enough. Id.
III.
As an initial matter, it is clear that OPLA expressly abrogates all common-law product
liability claims, including negligence claims such as those asserted by Plaintiff in ¶ 9 of the
Complaint. O.R.C. 2307.71; Boroff v. ALZA Corp., 685 F.Supp.2d 704, 711 (N.D. Ohio 2010).
Plaintiff apparently concedes this unassailable point by failing to address it in her opposition
brief.

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Next, an action based on a product liability claim “shall be brought within two years after
the cause of action accrues.” O.R.C. 2305.10(A). The cause of action accrues on the date upon
which a plaintiff is informed by competent medical authority that she has an injury related to the
medical device, or on the date on which, by the exercise of reasonable diligence, the plaintiff
should have known she had an injury related to the medical device. ORC. 2305.10(B)(1); see
also Cacciacarne v. G.D. Searle & Co., 908 F.2d 95, 96-7 (6th Cir. 1990); Dunn v. Ethicon,
Inc., 168 Fed. Appx. 539, 541 (6th Cir. 2006) (noting that in products liability cases the Ohio
discovery rule delays the accrual date for statutes of limitations until the plaintiff knows or
should have known she was injured). Unless a device fails immediately, no one can know at the
time a device is implanted whether it will be defective and when that defect will occur. Thus,
Defendant’s argument that Plaintiff’s claims accrued on the date the hardware was implanted
fails.
Here, Plaintiff underwent surgery on April 11, 2011 to repair her left femur. The
preoperative diagnosis was “failed hardware and nonunion of left proximal subtrochanteric
femur fracture” – which was also the postoperative diagnosis. (Doc #: 5-2 at 1.) The operation
involved removal of the broken intramedullary nail. (Id.) Plaintiff asserts that she did not know
about the defective nail until after the surgery was completed. Any factual dispute regarding the
exact date Plaintiff’s claims accrued is premature and can be resolved following discovery.
Defendant argues that the Complaint should be dismissed because Plaintiff failed to
accurately identify the allegedly defective medical device and the manufacturer at issue.
Furthermore, her threadbare allegations of the various product liability claims, and her use of

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“and/or The John Doe Defendants” when referring to the manufacturer of the device are fatal to
her claim.
The Court cannot fathom why Plaintiff’s counsel did not allege in the Complaint the
relevant, material facts in his possession which support his client’s OPLA claims – allegations
that are sufficient to withstand dismissal under Twombly and Iqbal. However, leave to amend a
complaint should be freely granted when justice so requires. Fed. R. Civ. P. 15(b). Accordingly,
because no case management conference has been held and formal discovery has not yet
commenced, the Court DIRECTS Plaintiff to file, no later than 4:00 p.m. on Monday, July 8,
2013, an amended complaint that fully, accurately and precisely details the facts supporting each
of her OPLA claims – which claims shall be separately enumerated.
IV.
Because of this order, the Court DENIES AS MOOT the pending motions
(Doc ##: 4, 5.)
IT IS SO ORDERED.

/s/ Dan A. Polster June 25, 2013
Dan Aaron Polster
United States District Judge

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