Azefor v. Depuy Orthopaedics, Inc.
| Decision Date | 03 March 2016 |
| Docket Number | Case No. 2:15-cv-00192-MMD-GWF |
| Parties | HERMAN AZEFOR, Plaintiff, v. DEPUY ORTHOPAEDICS, INC., DEPUY PRODUCTS, INC., DEPUY INTERNATIONAL LIMITED, JOHNSON & JOHNSON, JOHNSON & JOHNSON SERVICES, INC., Defendants. |
| Court | U.S. District Court — District of Nevada |
(Defendants DePuy Orthopaedics, Inc's Motion to Dismiss - dkt. no. 19)
I. SUMMARY
This action involves claims arising from a physical injury caused by an alleged defective product. Before the Court is Defendant DePuy Orthopaedics, Inc.'s ("DePuy") Motion to Dismiss ("Motion"). (Dkt. no. 19.) Plaintiff Herman Azefor has responded (dkt. no. 23) and DePuy has replied (dkt. no. 24). For the reasons discussed herein, the Motion is denied.
II. RELEVANT BACKGROUND
The following facts are taken from Plaintiff's Complaint. Defendants designed, manufactured and distributed numerous orthopedic products, including the DePuy LPS Diaphyseal Sleeve ("the "Product").1 (Dkt. no. 1 at 2-3.) On September 14, 2009, Plaintiff underwent left knee surgery that involved revision of a failed total knee arthroplasty with distal femoral replacement by implementation of the Product. (Id. at14.) On July 13, 2011, Plaintiff had revision surgery — "a left-sided revision of the distal femoral replacement" — to remove and replace the Product. (Id.) On February 15, 2013, Defendants initiated a Class I recall of the Product.2 (Id. at 6.) Plaintiff alleges that Defendants are aware that the Product is defective. (Id.)
On February 4, 2015, Plaintiff filed his Complaint asserting claims for strict liability, negligence, breach of express warranty, breach of implied warranties and failure to warn. (Dkt. no. 1.) In response, DePuy moved to dismiss, arguing that Nevada's two year statute of limitations bars Plaintiff's claims.
III. LEGAL STANDARD
A court may dismiss a plaintiff's complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A properly pleaded complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Ashcroft v. Iqbal, 556 US 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Thus, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, a district court must accept as true all well-pleaded factual allegations in the complaint; however, legal conclusions are notentitled to the assumption of truth. Id. at 678-79. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 678. Second, a district court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff's complaint alleges facts that allow a court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 678. Where the complaint fails to "permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not 'shown' — 'that the pleader is entitled to relief.'" Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)) (alteration omitted). When the claims in a complaint have not crossed the line from conceivable to plausible, the complaint must be dismissed. Twombly, 550 U.S. at 570. A complaint must contain either direct or inferential allegations concerning "all the material elements necessary to sustain recovery under some viable legal theory." Id. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)).
IV. DISCUSSION
Defendant raises two arguments in support of dismissal: (1) Nevada's two year statute of limitations applicable to claims involving damages for personal injuries applies to bar all of Plaintiff's claims, and (2) the statute of limitations accrued from the date of Plaintiff's revision surgery (July 13, 2011), at the latest. Plaintiff counters that Nevada's four year statute of limitations applies because Plaintiff's claims "all relate to the design, testing, manufacture, and warnings associated with the Product," and the statute of limitations accrued from the date of the recall notice, February 4, 2013. The Court will address each argument in turn.
Nevada law prescribes different commencement periods depending on the nature of the action involved. See NRS § 11.190. NRS § 11.190(4)(e) provides for a two year statute of limitations on "an action to recover damages for injuries to a person . . . caused by the wrongful act or neglect of another." However, NRS § 11.220establishes a four year commencement period in an action for relief that is not otherwise addressed in other sections of the statute.3 In determining which statute of limitations applies under Nevada law, the court should examine "[t]he gravamen of [the] action" (Blotzke v. The Christmas Tree, Inc., 499 P.2d 647, 647 (Nev. 1972)), and "look to the real purpose of the complaint . . . and not to what the pleader says it is" (Hartford Ins. Group, 484 P.2d at 571).
Defendant argues that the "gravamen" of Plaintiff's claims involve damages for personal injuries sounding in tort, citing to Plaintiff's allegations that he "has suffered and continues to suffer very serious bodily injuries." (Dkt. no. 19 at 7.) Defendant relies on cases where the Nevada Supreme Court applied NRS § 11.190(4)(e)'s two year statute of limitations period because it found the claims sound in tort, not in contract. See, e.g., Walz v. Hood, 487 P.2d 344 (Nev. 1971) (). While the Court agrees that Plaintiff's claims sound in tort, not in contract, this distinction does not automatically result in the application of the shorter statute of limitations period here. Indeed, NRS § 11.220's catchall statute is not limited to actions sounding in contract and could govern actions sounding in tort as long as the action is not otherwise covered in other statutes.
Defendant contends that Nevada courts have found similar claims, when asserted in the context of a personal injury suit, to be governed by the shorter two year limitations period for personal injury claims. (Dkt. no. 19 at 5-6.) Of the cited decisions, the only case that directly supports Defendant's argument is Campos v. New Direction Equip. Co., Inc., No. 2:08-cv-00286-LRH-RJJ, 2009 WL 114193, at *3 (D.Nev. Jan. 16,2009).4 The plaintiff in Campos sustained severe injuries while using defendant's allegedly defective machine. The court found that the plaintiff's claim for strict product liability falls within Nevada's two year statute of limitations for personal injury action. The court distinguished Fisher v. Prof'l Compounding Ctrs. of America, Inc., 311 F.Supp.2d 1008, 1017 (D. Nev. 2004), which stated that Nevada's catchall statute — providing for a four year limitations period — applies to product liability cases. Because the question of which statute of limitations applies depends on the nature of the action, the Court declines to follow Campos or Fisher.
Instead, the Court will "look to the real purpose of the complaint" (Hartford Ins. Group, 484 P.2d at 571) to assess which statute of limitations governs Plaintiff's claims. In support of his strict liability claim, Plaintiff alleges that the Product "was defective as to design, testing, manufacture and warnings, causing the DePuy LPS Diaphyseal Sleeve to be in a dangerous and defective condition that made it unsafe for its intended use." (Id. at 15.) Plaintiff further alleges that Defendants knew or reasonably should have known that the Product was defective and failed to warn of the potential hazards associated with the Product. (Id.) Moreover, Plaintiff alleges that as a result of the defective condition of the Product and Defendant's failure to warn, Plaintiff "suffered serious physical injury, harm, damages and economic loss and will continue to incur such harm, damages and economic loss in the future." (Id. at 15, 17, 19.) Accepting these allegations as true, the Court agrees with Defendant that the gist of Plaintiff's claims involves "physical injury" that he suffered and will continue to suffer.Even Plaintiff acknowledges that he "alleges he was physically injured by the defective Product." (Dkt. no. 23 at 8.) NRS § 11.190(4)(e) unambiguously provides a two year statute of limitations for "an action to recover damages for injuries to a person." Because Plaintiff's claims are to recover damages for physical injury to himself, Plaintiff's claims are subject to this shorter two year limitations period.
Nevada recognizes the "discovery rule," which is an exception to the general rule that "a cause of action accrues when the wrong occurs and a party sustains injuries for which relief could be sought." Petersen v. Bruen, 792 P.2d 18, 20 (Nev. 1990). "Under the discovery rule, the statutory period of limitations is tolled until the injured party discovers or reasonably should have discovered facts supporting a cause of action." Id. In the...
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