United States District Court, D. Maryland
IN RE SMITH & NEPHEW BIRMINGHAM HIP RESURFACING (BHR) HIP IMPLANT PRODUCTS LIABILITY LITIGATION
Catherine C. Blake, United States District Judge
& Nephew argues that 55 BHR track cases are time-barred
under applicable state law and therefore should be dismissed
under Rule 12(b)(6). 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.
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).
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.
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. 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.
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. 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. 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.
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
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. 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.
court will deny Smith & Nephew's motion as to all
other claims subject to a discovery rule. 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.
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.
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.
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.
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). "[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).
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.
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.
& 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