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In re Smith & Nephew Birmingham Hip Resurfacing (BHR) Hip Implant Products Liability Litigation

United States District Court, D. Maryland

November 19, 2018



          Catherine C. Blake, United States District Judge

         Smith & Nephew argues that 55 BHR track cases are time-barred under applicable state law and therefore should be dismissed under Rule 12(b)(6).[1] The court will grant in part and deny in part Smith & Nephew's motion. Most states, relevant to this suit, have discovery rules that toll a statute of limitations period until a plaintiff discovers, or reasonably should discover, that the defendant may be liable for her injury. The court generally will not rule on the timeliness of any claim subject to a discovery rule, because the determination of when a claim accrues under a discovery rule is fact-intensive, and therefore unsuited to decision at the motion to dismiss stage. Whether a claim arising in a state without a discovery rule is timely, however, can be determined from the face of the complaint alone, and the court may rule on those claims. Because Smith & Nephew properly identifies time-barred cases in that category, those cases will be dismissed.[2]

         Standard of Review

         To survive a motion to dismiss, the factual allegations of a complaint "must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted): "To satisfy this standard, a plaintiff need not 'forecast' evidence sufficient to prove the elements of the claim. However, the complaint must allege sufficient facts to establish those elements." Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation omitted). "Thus, while a plaintiff does not need to demonstrate in a complaint that the right to relief is 'probable,' the complaint must advance the plaintiffs claim 'across the line from conceivable to plausible.'" Id. (quoting Twombly, 550 U.S. at 570). A court may consider a statute of limitations defense on a motion to dismiss only "where the defense is apparent from the face of the complaint." Wright v. U.S. Postal Service, 305 F.Supp.2d 562, 563 (D. Md. 2004).

         Summary of Arguments

         The parties dispute two issues: (1) whether Smith & Nephew's motion should be decided before discovery; and (2) whether the claims identified by Smith & Nephew are time-barred. Smith & Nephew argues that each relevant state statute of limitations inquiry can be resolved by looking to two dates, both easily identified by the fact of the plaintiffs' complaints: (1) when the complaint was filed; and (2) when the plaintiff received revision surgery. Smith & Nephew argues that the court, therefore, may decide whether the plaintiffs' claims are time-barred on a motion to dismiss. The plaintiffs counter that the relevant dates for the statutory period cannot be determined based on the face of the complaint alone. Many states implicated by the pending motion to dismiss toll a statute of limitations period through either a discovery or fraudulent concealment rule. In either instance, factual inquiry beyond the four corners of the complaint may be required.

         On the merits, Smith & Nephew argued in its motion that each of the-55 claims it identified are time-barred because the complaints were filed well past the end of the applicable statute of limitations period.[3] And Smith & Nephew identified five complaints that are time barred even accepting the plaintiffs' theory of accrual. The plaintiffs made two arguments in response: (1) several of the cases Smith & Nephew identified as time-barred are in fact timely even under the standards the company relied on; and (2) contrary to Smith & Nephew's contention, the earliest trigger for the limitations period was the BHR recall announcement in September 2015, not any earlier revision surgery.



         As discussed below, most of the plaintiffs' claims arising in states that employ a discovery rule for personal injury or product liability claims will survive Smith & Nephew's motion to dismiss.[4] Four complaints-Stafford v. Smith & Nephew, CCB-18-708, Britt v. Smith & Nephew, CCB-17-3421, Aaron v. Smith & Nephew, CCB-17-3503, and Morgan v. Smith & Nephew, CCB-17-3377-are untimely even though they arise in states with a discovery rule because they were filed outside of the statutory period, even under the most lenient reading of each respective state's discovery rule. The plaintiffs' arguments for fraudulent concealment and equitable tolling impose requirements different from or in addition to FDA requirements and are therefore preempted. The court can, as a result, rule on the timeliness of claims arising from the four states without a discovery rule-Alabama, Idaho, Michigan, and New York-without further factual inquiry.[5] Because those claims were not filed within their applicable limitations period, they must be dismissed. Several of the express warranty claims, however, will survive this motion to dismiss because Smith & Nephew has not challenged their timeliness.


         The parties agree that five of the fifty-five complaints Smith & Nephew initially identified as time-barred are in fact timely. In its reply, Smith & Nephew withdrew the following complaints from its motion to dismiss: Stranger-McGorrin v. Smith & Nephew, CCB -17-2644, Hopkins v. Smith & Nephew, CCB-17-1077, Berg v. Smith & Nephew, CCB-17-1038, and Crews v. Smith & Nephew, CCB-17-936. (Defs.' Reply at 4, n.2, ECF No. 895). Smith & Nephew also concurred with plaintiffs' assertion that Stidham v. Smith & Nephew, CCB-17-252 is not time barred because it is a THA case, even though the plaintiff filed a short-form complaint alleging that he received a BHR implant. (Id.). The court accepts Smith & Nephew's revisions to its initial motion to dismiss.


         The court will grant Smith & Nephew's motion as to the following four claims arising in Louisiana, Tennessee, Utah, and California. Though these states employ discovery rules that generally would be ill-suited for a motion to dismiss, these particular claims are untimely even based on the plaintiffs' theory of accrual.[6] The sole Tennessee complaint at issue, Stafford v. Smith & Nephew, CCB-18-708, was filed on March 8, 2018, more than two years after the September 2015 recall. Because Tennessee has a one-year statute of limitations period for product liability claims, this claim is untimely. See Tenn. Code Ann. § 28-3-104(b)(1). Utah has a two-year statute of limitations period, Utah Code Ann. § 78B-6-706, and Britt v. Smith & Nephew, CCB-17-3421, was filed on November 17, 2017, more than two years after the September 2015 recall date. Louisiana has a one year statute of limitations, LA. CIV. CODE art. 3492, and Aaron v. Smith & Nephew, CCB-17-3503, was filed on November 27, 2017, more than one year after the September 2015 recall. California has a two-year statute of limitations period, Cal. Civ. Proc. § 335.1, and Morgan v. Smith & Nephew, CCB-17-3377, was filed on November 14, 2017, more than two years after the September 2015 recall date. Because these claims are untimely even under the plaintiffs' theory of accrual, they will be dismissed.


         The court will deny Smith & Nephew's motion as to all other claims subject to a discovery rule.[7] A discovery rule extends the period during which a plaintiff may bring suit by changing the date of accrual-the moment when the statutory clock starts ticking-from the date of the wrong or injury, to the date "when the plaintiff knew or, with due diligence, reasonably should have known of the wrong." Doe v. Archdiocese of Washington, 689 A.2d 634, 638-39 (Md. Ct. Spec. App. 1997). Some states apply products liability-specific discovery rules. In Maryland, for example, a claim does not begin to accrue until "the plaintiff knows or through the exercise of due diligence, should know of injury, its probable cause, and either manufacturer wrongdoing or product defect." Penrmalt Corp. v. Nasios, 550 A.2d 1155, 1165 (Md. 1988) (emphasis added). The fact intensive nature of this latter formulation of the discovery rule is obvious, and even the general discovery rule requires a court to determine when a plaintiff knew or should have known that the injury was in fact one for which the defendant may be liable. That inquiry cannot be resolved simply by looking to the date on which a plaintiff had a revision surgery, as Smith & Nephew suggests. Revision surgery, alone, only tells a plaintiff that she is suffering from complications as a result of her implant procedure, but it is silent as to the cause of that complication. Without more information, a reasonably conscientious patient could not deduce whether the cause of her injury is her doctor's malpractice, something unique to her own medical history, an unfortunate but accepted ill-effect of the BHR device, or a true product defect.

         A medical complication therefore does not rise to "knowledge of an injury" for the purposes of the discovery rule, because it may not in fact be a legally cognizable injury. Alaska, Arizona, Arkansas, California, Indiana, Massachusetts, New Jersey, Ohio, Oregon, Pennsylvania, Utah, and Wisconsin recognize as much and apply some form of the discovery rule. As explored below, these states' discovery rules necessitate a fact-intensive inquiry, which cannot be answered based on the face of the plaintiffs' complaint alone.


         Alaska applies a two-year statute of limitations period to personal injury claims. Alaska STAT. § 09.10.070. Alaska's discovery rule has three distinct components:

(1) a cause of action accrues when a person discovers, or reasonably should have discovered, the existence of all elements essential to the cause of action; (2) a person reasonably should know of his cause of action when he has sufficient information to prompt an inquiry into the cause of action, if all of the essential elements of the cause of action may reasonably be discovered within the statutory period at a point when a reasonable time remains within which to file suit; . . . [(3)] where a person makes a reasonable inquiry which does not reveal the elements of the cause of action within the statutory period at a point where there remains a reasonable time within which to file suit, the limitations period is tolled until a reasonable person discovers actual knowledge of, or would again be prompted to inquire into, the cause of action.

Cameron v. State, 822 P.2d 1362, 1366-67 (Alaska 1991). As Smith & Nephew notes, a plaintiff has "sufficient information to prompt an inquiry into his cause of action once the plaintiff learns that he has a medically documented .. . condition." Sopko v. Dowell Schlumberger, Inc., 21 P.3d 1265, 1271 (Alaska 2001) (quoting Cameron, 822 P.2d at 1367). But this does not mean that the statutory period will always begin to run at the time a plaintiff becomes aware of a medically documented condition. The statutory period will be tolled if, even though the plaintiff has sufficient information to prompt an inquiry into the cause of action, the plaintiff cannot reasonably discover all of the essential elements of the cause of action within the statutory period with sufficient time remaining to bring suit. See Sopko, 21 P.3d at 1271-72; Cameron, 822 P.2d at 1367.

         Causation is an essential element of a cause of action. See Cameron, 822 P.2d at 1367. The complaints do not delineate when causation became or reasonably should have become apparent. But based on the plaintiffs' allegations that Smith & Nephew failed to disclose or, in some cases, affirmatively misrepresented information regarding the safety of the BHR device, it is plausible that causation could not reasonably have been discovered within the statutory period, and the statute of limitations period should therefore be tolled. (Am. Compl, ECF No. 124, at ¶¶ 21, 23, 62, 72-74, 79, 102, 103, 113, 255, 265-71, 369, and 461). Because the determination of when the plaintiffs either did or reasonably could have discovered the cause of their injuries requires further factual development, Smith & Nephew's motion to dismiss claims filed under Alaska law will be denied.


         Under Arizona law, product liability actions have a two-year statute of limitations, Ariz. Rev. Stat. § 12-542, and "a cause of action accrues, and the statute of limitations commences, when one party is able to sue another." Murrell v. Wyeth, Inc., No. 2:13-28801, 2013 WL 1882193, *3 (D. Az. May 3, 2013).[8] "[A] plaintiffs cause of action does not accrue until the plaintiff knows or, in the exercise of reasonable diligence, should know the facts underlying the cause." Id. In a products liability case, the plaintiffs must know the product was:

[I]n some way causally connected to their injuries. It is not enough that a person comprehend the "what" of her injury; there must also be reason to connect the "what" to a particular "who" in such a way that a reasonable person would be on notice to investigate whether the injury might result from fault.

Id. (internal citations and quotations omitted).

         The Arizona Supreme Court has noted that the "important inquiry in applying the discovery rule is whether the plaintiffs injury or the conduct causing the injury is difficult for the plaintiff to detect." Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of America, 182 Ariz. 586, 589 (Az. 1995) (noting also that the discovery rule often applies when "the defendant has been in a far superior position to comprehend the act and the injury") (quoting April Enters. V. KTTV, 195 Cal.Rptr. 421, 436 (Ct.App. 1983)). In cases where "an unfortunate result would immediately put the plaintiff on notice that the result is not only unfavorable but might be attributable to some fault and should be investigated," the statutory period begins to run at the time of physical injury. Walk v. Ring, 202 Ariz. 310, 314 (Az. 2002). Examples in this first category of cases, where harm and the possibility of wrongful conduct are immediately obvious, include anesthesia-induced brain injury and death during elective outpatient surgery and injury to a party's hand during a dental procedure. Id.

         But there are also cases where the "factual context does not permit finding, as a matter of law, that a patient was promptly on sufficient notice of the confluence of' what' and 'who' and that an unhappy result should be investigated to determine whether it is attributable to fault of those responsible for the patient's care." Id. Illustrating this latter category, the Arizona Supreme Court pointed to Morrison v. Acton, 68 Ariz. 27 (1948), where the statute of limitations was tolled because the plaintiff knew his jaw pain resulted from a dental procedure, but was not aware of his dentist's negligence. Walk, 202 Ariz, at 315. This case falls squarely in the latter camp. Based on the face of the complaint alone, this court cannot determine when plaintiffs knew or reasonably should have known not only what caused their injury, but also who was responsible for their harm. This is especially true given the informational asymmetries a layperson faces when they receive medical care.

         Smith & Nephew points to language from Roulston v. Foree Tire Co., No. 88-2691, 1990 WL 35216 (9th Cir. 1990), to bolster its case. (Defs.' Reply Ex. D at 3, ECF No. 895-1). In Roulston, the Ninth Circuit, presented with a factual scenario that the Arizona Supreme Court had not clearly addressed, surmised that the Arizona Supreme Court would likely only require plaintiffs to have knowledge that a product was causally connected to their injuries, rather than knowledge about a specific product defect. But this language is not compelling for several reasons: It is not a published opinion; it is not binding on the Arizona Supreme Court; it predates cases such as Walk, 202 Ariz, at 314-19, which articulates the Arizona Supreme Court's current understanding of the state's discovery rule; and the facts at issue in Roulston differ in important ways from the facts in the present case. In Roulston, the product in question was a new tire, which exploded, causing injury. This sort of ...

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