Collins v. Davol, Inc.

Decision Date04 November 2014
Docket NumberCivil Action No. 3:14–cv–01392–AKK.
Citation56 F.Supp.3d 1222
PartiesRobert COLLINS and Caroleigh Collins, Plaintiffs, v. DAVOL, INC. and C.R. Bard, Inc., Defendants.
CourtU.S. District Court — Northern District of Alabama

Ernest Cory, Jon Collins Conlin, Cory Watson Crowder & Degaris PC, Birmingham, AL, for Plaintiffs.

Clinton Timothy Speegle, Sara Anne Ford, Lightfoot Franklin & White LLC, Birmingham, AL, for Defendants.

MEMORANDUM OPINION AND ORDER

ABDUL K. KALLON, District Judge.

Robert Collins (Mr. Collins) and Caroleigh Collins (Ms. Collins) (collectively “the plaintiffs) bring this action against Davol, Inc. and C.R. Bard, Inc. (“the defendants) for breach of implied warranty, negligence, intentional and negligent infliction of emotional distress, failure to warn, loss of consortium, fraud, misrepresentation by omission, and violations of the Alabama Deceptive Trade Practices Act (“ADTPA”), Ala.Code §§ 8–19–1 et seq., and the Alabama Extended Manufacturer's Liability Doctrine (“AEMLD”), Ala.Code § 6–5–501 et seq. Doc. 1. In a nutshell, the plaintiffs allege that the defendants continued to market, sell, and distribute the Composix Kugel Patch after learning that its design was defective, failed to provide adequate warnings about the dangers associated with the product, and that Mr. Collins suffered injuries when a Kugel Patch inserted into his abdomen during a 2004 surgery malfunctioned in 2012. Id. The defendants move to dismiss the complaint, doc. 3, and the motion is fully briefed, id.; docs. 8 and 12, and ripe for review. For the reasons stated more fully below, the motion is GRANTED as to the plaintiffs' breach of implied warranty, negligence, intentional and negligent infliction of emotional distress, failure to warn, loss of consortium, ADTPA, and AEMLD claims and DENIED as to the plaintiffs' fraud and misrepresentation by omission claims.

I. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” [T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” are insufficient. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citations and internal quotation marks omitted). “Nor does a complaint suffice if it tenders ‘naked assertion[s] devoid of ‘further factual enhancement.’ Id. (citing Bell Atl. Corp., 550 U.S. at 557, 127 S.Ct. 1955 ).

Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a complaint fails to state a claim upon which relief can be granted. “To 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, 129 S.Ct. 1937 (citations omitted) (internal quotation marks omitted). A complaint states a facially plausible claim for relief “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted). The complaint must establish “more than a sheer possibility that a defendant has acted unlawfully.” Id.; see also Bell Atl. Corp., 550 U.S. at 555, 127 S.Ct. 1955 (“Factual allegations must be enough to raise a right to relief above the speculative level.”). Ultimately, this inquiry is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.

II. FACTUAL BACKGROUND

The following is an account of the plaintiffs' allegations, accepted as true, that are pertinent to the resolution of the defendants' motion. On February 23, 2004, Mr. Collins underwent surgery at Vanderbilt University Medical Center in Nashville, Tennessee to repair a hernia. Doc. 1 at 3. During the procedure, Dr. William O. Richards implanted an Extra Large Composix Kugel Patch into Mr. Collins' abdomen. Id.

During 2005, 2006, and 2007, Davol issued recalls for various versions of the Kugel Patch because of “a faulty ‘memory recoil ring’ that [could] break under pressure.” Id. at 5. The plaintiffs contend that neither Mr. Collins nor Mr. Collins' “physicians were aware of the dangerous and defective condition of the Kugel Patch or that [it] was the cause of Mr. Collins'[ ] injuries until sometime after [the defendants] ... inform[ed] the general public of the defective nature of the Kugel Patches and the subsequent recalls.” Id. at 6.

Eight years after his first operation, in April 2012, Mr. Collins sought treatment from Dr. Willie V. Melvin for ongoing and increasingly severe abdominal pain. Id. at 6. Dr. Melvin determined that Mr. Collins suffered from a recurrent hernia, and that there was palpable mesh at the hernia site. Id. After noninvasive treatment failed, Mr. Collins again underwent surgery at the Vanderbilt University Medical Center1 on August 13, 2012. Id. During the procedure, Dr. Melvin discovered that the Composix Kugel Patch inserted during the previous surgery had buckled, that Mr. Collins' small bowel was densely adhered to the device's mesh in several locations where the buckle occurred, and that these adhesions were the cause of the reherniation. Id. Dr. Melvin further discovered that the device's memory recoil ring had fractured near the buckle location, and this was why the device failed. Id. at 6–7.

Following the August 13, 2012 surgery, Mr. Collins underwent a second, emergency surgery to control bleeding and remained hospitalized for eight days. Id. at 7. He continues to suffer from abdominal pain, acute anemia, and mental anguish and has incurred significant medical and lost wages. Id. The plaintiffs initiated this lawsuit on July 18, 2014. Id. at 22.

III. ANALYSIS

The defendants argue that the plaintiffs' claims are due to be dismissed in their entirety, largely because they are time-barred. See doc. 3. The court will evaluate the defendants' arguments with regards to the plaintiffs' tort claims and to Mr. Collins' contract claim in turn.

A. The Plaintiffs' Tort Claims

The defendants argue that the plaintiffs' tort claims are time-barred, and that Mr. Collins' negligent infliction of emotional distress claim is subsumed by his negligence claim. As a preliminary matter, the court notes that while the defendants initially argued that Tennessee law should govern the plaintiffs' tort claims, see doc. 3 at 5–6, the parties are now in agreement, at least for present purposes, that because ‘Alabama is the state where [the p]laintiffs were located when Mr. Collins suffered his initial injuries,’ ... Alabama law governs [the p]laintiffs' tort claims.' ” Doc. 12 at 2 (defendant's reply brief) (quoting doc. 8 at 6 (plaintiff's response brief)); see also St. Paul Fire and Marine Ins. Co. v. ERA Oxford Realty Co. Greystone, LLC, 572 F.3d 893, 894 n. 1 (11th Cir.2009) (“A federal court sitting in diversity, as in this case, must apply the choice of law principles of the state in which it sits.”); Fitts v. Minn. Mining & Mfg. Co., 581 So.2d 819, 820 (Ala.1991) (Lex loci delicti has been the rule in Alabama for almost 100 years. Under this principle, an Alabama court will determine the substantive rights of an injured party according to the law of the state where the injury occurred.”). The court will examine the defendants' arguments as to the plaintiffs' fraud claims, ADTPA claim, and remaining tort claims in turn.

1. Mr. Collins' Fraud and Misrepresentation by Omission Claims

The court will begin with the plaintiffs' fraud claims. Ala.Code § 6–2–3, which governs the accrual of fraud actions, provides that [i]n actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud.” Alabama's Supreme Court has defined “discovery by the aggrieved party as the time at which “the aggrieved party discovers or, in the exercise of reasonable care, should have discovered, the facts constituting the fraud.” Wheeler v. George, 39 So.3d 1061, 1081 (Ala.2009) (citing Ex parte Seabol, 782 So.2d 212, 216 (Ala.2000) ; Foremost Ins. Co. v. Parham, 693 So.2d 409, 421 (Ala.1997) ). “Therefore, the limitations period [for a fraud claim] commences when the plaintiff discovers the fraud or when facts are known ‘which would put a reasonable mind on notice that facts to support a claim of fraud might be discovered upon inquiry.’ Id. (quoting Auto–Owners Ins. Co. v. Abston, 822 So.2d 1187, 1195 (Ala.2001) ).

The Alabama Supreme Court has repeatedly held that ‘the question of when [a] party discovered or should have discovered the fraud is generally one for the jury.’ Wheeler, 39 So.3d at 1082 (quoting Liberty Nat'l Life Ins. Co. v. Parker, 703 So.2d 307, 308 (Ala.1997) ); see also Seabol, 782 So.2d at 216. It has further held that [t]he question of when a plaintiff should have discovered fraud should be taken away from the jury and decided as a matter of law only in cases where the plaintiff actually knew of facts that would have put a reasonable person on notice of fraud.’ Wheeler, 39 So.3d at 1082–83 (emphasis in original) (quoting Kelly v. Conn. Mut. Life Ins. Co., 628 So.2d 454, 458 (Ala.1993) ).

The defendants seem to present two overlapping arguments for why Mr. Collins' fraud claims are time-barred. The first is that although Mr. Collins claims he did not learn about the Kugel Patches' alleged defects “until sometime after [the defendants] chose to finally inform the general public of the defective nature of the Kugel Patches and the...

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