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

United States District Court, D. Maryland

October 16, 2019

IN RE SMITH & NEPHEW BIRMINGHAM HIP RESURFACING BHR HIP - IMPLANT PRODUCTS LIABILITY LITIGATION Bouman
v.
Smith & Nephew, Inc., Civil No. CCB-17-2592 Constantini
v.
Smith & Nephew, Inc., Civil No. CCB-17-1982 Davis
v.
Smith & Nephew, Inc., Civil No. CCB-17-2617 Franklin
v.
Smith & Nephew, Inc., Civil No. CCB-17-2560 Jobe
v.
Smith & Nephew, Inc., Civil No. CCB-17-2624 Kwatra
v.
Smith & Nephew, Inc., Civil No. CCB-17-243 6 Little
v.
Smith & Nephew, Inc., CivilNo. CCB-17-2607 Luvaas
v.
Smith & Nephew, Inc., Civil No. CCB-17-2548 Schnick
v.
Smith & Nephew, Inc., Civil No. CCB-17-2406 Smith-Clark
v.
Smith & Nephew, Inc., Civil No. CCB-17-2633 Stoll
v.
Smith & Nephew, Inc., Civil No. CCB-17-2402 Warner
v.
Smith & Nephew, Inc., Civil No. CCB-17-23 85 MDL No. 2775

          MEMORANDUM

          CATHERINE C. BLAKE UNITED STATES DISTRICT JUDGE

         Pending before the court is Smith & Nephew's motion to dismiss 12-BHR track claims as time-barred under California law. For the reasons explained below, .the court will grant Smith & Nephew's motion.

         BACKGROUND

         Smith & Nephew previously filed a motion to dismiss 55 BHR track cases as time barred. (ECF No. 795). With respect to the cases governed by California law, Smith & Nephew argued that each plaintiffs cause of action accrued no later than the date of his or her revision surgery. By the time each plaintiff filed a complaint, argued Smith & Nephew, California's two-year statute of limitations period had already elapsed. The court denied Smith & Nephew's motion without prejudice as to the California cases. (ECF Nos. 1190, 1191). The court noted that California's discovery rule may permit delayed accrual of the causes of action, and granted the plaintiffs leave to file amended complaints to reflect the time and manner of the discovery of their injuries.

         The plaintiffs in the 12 cases subject to this motion (the "California plaintiffs") filed Amended Short Form Complaints ("ASFC").[1] Eleven ASFCs alleged that the plaintiffs did not have notice or information that the BHR device caused their injuries until September 10, 2015, the date of the recall, and one ASFC alleges that the plaintiff did not have information or notice until October 2017.[2] But all of the California plaintiffs allege that they contacted attorneys about potential legal claims before the date of the recall, either when they learned they needed revision surgery or shortly after the surgery was performed. Each California plaintiff alleges that he or she was told by attorneys that they were not investigating BHR devices.

         Smith & Nephew filed a motion to dismiss the California plaintiffs' cases. The court has heard oral argument, and the motion is fully briefed and ripe for review.

         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 Sennce, 305 F.Supp.2d 562, 563 (D. Md. 2004).

         ANALYSIS

         California law imposes a two-year statute of limitations period for personal injury actions. Cal. Civ. Proc. § 335.1. Pursuant to California's discovery rule, however, the statutory period is tolled until a plaintiff discovers, or reasonably should discover, that the defendant may be liable for her injury. Fox v. Ethicon Endo-Svrgeiy, Inc., 110 P.3d 914, 920 (Cal. 2005). "[P]laintiffs are required to conduct a reasonable investigation after becoming aware of an injury, and are charged with knowledge of the information that would have been revealed by such an investigation." Id. at 920. To successfully claim delayed discovery, a plaintiff "must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence." Id. at 920-21. To show time and manner of discovery, plaintiffs must "allege facts showing the time and surrounding circumstances of the discovery of the cause of action upon which they rely." E-Fab, Inc. v. Accountants, Inc. Services, 153 Cal.App.4th 1308, 1324 (Cal.Ct.App. 2007) (internal quotations omitted).

         The California plaintiffs claim that they did not have notice or information that the BHR device caused their injuries until the recall, [3] Accordingly, the California plaintiffs argue, the statute of limitations did not begin to run on their claims until September 10, 2015, and had not expired when they filed their complaints. Smith & Nephew counters that the statute of limitations began to run when each plaintiff contacted an attorney, which in each case was more than two years before the filing of a complaint. The viability of the California plaintiffs' claims thus turns on when the limitations period began: September 10, 2015, or on the earlier date when each plaintiff contacted an attorney.

         "[A] limitations period dependent on discovery of the cause of action begins to run no later than the time the plaintiff learns, or should have learned, the facts essential to his claim." Gutierrez v. Mofid, 39 Cal.3d 892, 897 (1985) (emphasis in original); see also Jolly v. Eli Lilly & Co., 44 Cal.3d 1103, 1113 (1988) ("[I]t is the discovery of facts, not their legal significance, that starts the statute [of limitations.]"). A plaintiff knows, or should know, the facts essential to her claim when she has suffered "appreciable harm" and knows or suspects that the defendant may be responsible. See Gutierrez, 39 Cal.3d at 898. Here, the California plaintiffs clearly suffered appreciable harm, as evidenced by their revision surgeries. It is also clear that, around the time of the revision surgeries, the California plaintiffs suspected that the BHR device-and thus Smith & Nephew-was responsible for the harm. The California plaintiffs uniformly allege in the ASFCs that they contacted attorneys to determine whether they had legal claims related to the BHR device. That the California plaintiffs were suspicious enough to contact attorneys suggests that they knew, or should have known, the facts essential to their claims. See Jolly, 44 Cal.3d at 1112-13 (holding that a plaintiffs suspicion that a particular drug caused her injuries triggered the statute of limitations).[4]

         The California plaintiffs argue that because, in each case, the attorneys told the plaintiffs that they were not investigating BHR devices, the statute of limitations should be tolled. (Oral Arg. Hr'g Tr. at 22:12-16, ECF No. 1801). Not so. In Gutierrez v. Mofid, the California Supreme Court directly addressed the question of whether reliance on an attorney's advice relieves a plaintiff of her "duty of diligent inquiry imposed by her initial suspicions." 39 Cal.3d at 897. The court held that it did not. As the Gutierrez court explained, "[i]t is irrelevant that the plaintiff is ignorant of his legal remedy ... the fact that an attorney has not yet advised him does not postpone commencement of the limitations period" Id. at 898. Even "discouraging" advice from an attorney does not extend the limitations period. Id. Moreover, the California plaintiffs' claim that a diligent investigation would not have revealed a cause of action is unpersuasive. Indeed, Smith & Nephew has been defending lawsuits related to the BHR device since before any of the California plaintiffs contacted an attorney.[5]

         The California plaintiffs further claim that the court cannot determine whether their claims are time-barred at the motion to dismiss stage. They are mistaken. While it is true that a motion to dismiss "generally cannot reach the merits of an affirmative defense, . .. where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss." Goodman v. Praxair, Inc.,494 F.3d 458, 464 (4th Cir. 2007). The court may properly reach an affirmative statute of limitations defense at the motion to dismiss stage if a complaint "sets forth on its face ...


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