Evans v. Hanger Prosthetics & Orthotics, Inc.

• Decision Date: 18 August 2010
• Docket Number: Case No. 09-cv-1344
• Citation: 735 F.Supp.2d 785
• Court: U.S. District Court — Northern District of Ohio
• Parties: Jeffrey EVANS, Plaintiff, v. HANGER PROSTHETICS & ORTHOTICS, INC., et al., Defendants.

735 F.Supp.2d 785

Jeffrey EVANS, Plaintiff,

v.HANGER PROSTHETICS & ORTHOTICS, INC., et al., Defendants.

Case No. 09-cv-1344.

United States District Court,

N.D. Ohio,

Eastern Division.

Aug. 18, 2010.

Matthew P. Mullen, Krugliak, Wilkins, Griffiths & Dougherty, Canton, OH, John P. Maxwell, Krugliak, Wilkins, Griffiths & Dougherty, New Philadelphia, OH, for Plaintiff.

Eric Larson Zalud, Tamara L. Karel, Benesch, Friedlander, Coplan & Aronoff, Cleveland, OH, for Defendants.

MEMORANDUM & ORDER

KATHLEEN McDONALD O'MALLEY, District Judge.

Before the Court is Plaintiff Jeffrey Evans' ("Evans") Motion for Leave Instanter to File an Amended Complaint. (Doc. 19.) In this Motion, Evans seeks to add two individuals as defendants pursuant to Rule 15 of the Federal Rules of Civil Procedure and 28 U.S.C. § 1447(e). Defendant Hanger Prosthetics & Orthotics, Inc. ("Hanger") filed a Motion to Dismiss and Brief in Opposition to Plaintiff's Motion for Leave to File an Amended Complaint. (Doc. 21.) ¹ For the reasons set forth below, the Court DENIES Evans' Motion to Amend to the extent that it seeks to add new defendants to the case and GRANTS the remainder of the motion. Additionally, as explained below, the Court DENIES Hanger's Motion to Dismiss, but sua sponte dismisses Evans' common law claims without prejudice to reasserting these claims under the Ohio Products Liability Act ("OPLA"). Within ten (10) days from the date of this Order, Evans shall file an Amended Complaint consistent with the findings and directives in this opinion

I. BACKGROUND AND PROCEDURAL HISTORY

This dispute arises from the malfunctioning of Evans' prosthetic leg, which he purchased from Hanger.²

In 1995, Evans lost his right leg in an accident. Although it is unclear from the record what occurred in the intervening years, in 2002, Evans purchased his first prosthetic from Hanger's facility in New Philadelphia, Ohio. (Doc 24 at 2.) ³ Overthe next few years, Evans' residual limb shrunk, which forced him to return to Hanger to obtain a new prosthetic leg in 2005. ( Id. at ¶ 10.) The new prosthetic was cast by licensed prosthetist Joseph Yanke ("Yanke"), an employee of Hanger. ( Id. at ¶¶ 3, 11.) The socket for the new leg, however, did not fit correctly. Over the next eighteen months, Evans returned repeatedly for fittings, but Yanke was unable to fix the leg. ( Id. at ¶ 13.) As a result, Evans continued to wear the leg that Hanger produced in 2002. ( Id. at ¶ 15.)

In 2007, Evans decided to get a second opinion about the difficulties with his 2005 prosthetic, this time from a doctor in Canton, Ohio. This doctor informed him that he needed a properly fitting socket and advised Evans to go see Kyle Underwood ("Underwood"), a licensed prosthetist and also an employee of Hanger, at Hanger's facility in Canton, Ohio. ( Id. at ¶¶ 5, 16.)

When Evans went to see Underwood, he took a new cast of his leg. ( Id. at ¶ 18.) Over the next few weeks, he went in for more fittings, but Underwood was no more successful than Yanke, which forced Evans to continue to wear his 2002 prosthetic leg. ( Id. at ¶ 20.) During one of Evans' visits, however, Underwood informed him that prosthetic legs usually have four bolts, yet Evans' 2002 prosthetic only had three bolts and some kind of shim to attach the joint, bolts, and socket. ( Id. at ¶ 21.) ⁴

A few weeks later, in April of 2007, the 2002 prosthetic leg malfunctioned and Evans once again returned to Underwood for assistance. When Evans tried the leg on in the office after Underwood worked on it, Evans informed Underwood that it still "felt funny" when he walked on it. Underwood assured him that the leg would not break and that it was safe, even if it only had three bolts. ( Id. at ¶ 22.)

Within one hour of returning home from his visit, the socket of his 2002 prosthetic leg broke, which caused Evans to fall down a hill and to suffer serious injuries. ( Id. at ¶ 23.) ⁵ Evans asserts that the prosthetic was negligently molded and/or constructed and that its defective design and manufacture caused his injury. ( Id. at ¶¶ 24-25.)

On March 13, 2009, Evans filed a complaint in the Court of Common Pleas in Tuscarawas County, Ohio, which sought compensatory damages in excess of $25,000.00. ( Id. at 7.) On May 21, 2009, however, Hanger requested a written statement describing the actual amount of recovery sought, and Evans clarified that he was seeking $250,000.00 in damages. (Doc. 1-6.) Hanger then filed a Notice of Removal in this Court on June 6, 2009 pursuant to 28 U.S.C. §§ 1332(a), 1441(a) and 1446. (Doc. 1.) Evans is a citizen of Ohio, while Hanger is a Delaware corporation with its principal place of business in Maryland. ( Id. at 2.) Subject matter jurisdiction, therefore, is proper on the basis of diversity of citizenship under 28 U.S.C. § 1332. ⁶

Evans' filed his Motion for Leave Instanter to File Amended Complaint on September 17, 2009. (Doc. 19.) Evans' Amended Complaint proposes to join Underwood and Yanke, both of whom are citizens of Ohio and employees of Hanger, as defendants in this case, which would destroy diversity jurisdiction. On October 2, 2009, Hanger filed its Motion to Dismiss and Brief in Opposition to Plaintiff's Motion for Leave to File an Amended Complaint. (Doc. 21.)

II. MOTION TO AMEND

The first issue before the Court is whether Evans should be allowed to amend his Complaint to join two non-diverse parties, which would require remand of the case to state court. Evans makes what are essentially two main arguments regarding his Motion to Amend: 1) the Court should grant him leave to amend his Complaint and to join the two new defendants as he is not trying to destroy diversity jurisdiction but, rather, is trying to fully adjudicate all of his claims against all of the defendants in one lawsuit (Doc. 19 at 3); and 2) joinder is not futile since professional negligence claims are subject to a four-year statute of limitations as stated in O.R.C. § 2305.09. (Doc. 22 at 6.) Hanger argues that Evans' Motion should be denied because: 1) the two-year statute of limitations for products liability claims under O.R.C. § 2305.10 and the one-year statute of limitations for medical malpractice claims under O.R.C. § 2305.11 bar Evans' claims against Underwood and Yanke (Doc. 24 at 6); 2) the Amended Complaint does not relate back under Rule 15(c) of the Federal Rules of Civil Procedure (Doc. 21 at 7); and 3) the proposed amendment would be futile because Evans' does not have access to the 2002 prosthesis any longer.

A. Governing Law

The Court's decision whether to grant leave to amend the pleadings is governed by Rule 15 of the Federal Rules of Civil Procedure. Rule 15(a) provides, in part, that "a party may amend its pleading only with the opposing party's written consent or the court's leave" and that "[t]he court should freely give leave when justice so requires." Fed.R.Civ.P. 15(a). A motion to amend should be denied, however, "if the amendment is brought in bad faith, for dilatory purposes, results in undue delay or prejudice to the opposing party, or would be futile." Crawford v. Roane, 53 F.3d 750, 753 (6th Cir.1995). Where a party seeks to amend a complaint after the statute of limitations for a claim has expired, he or she may do so only where Rule 15(c) allows the amendment to relate back to the date of the original complaint. Rule 15(c) provides that an amendment relates back when:

(A) the law that provides the applicable statute of limitations allows relation back;

(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading; or

(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) [120 days] for serving the summons and complaint, the party to be brought in by amendment:

(i) received such notice of the action that it will not be prejudiced in defending on the merits; and(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.

Fed.R.Civ.P. 15(c).

B. Discussion

Whether Evans may amend his complaint turns on two threshold questions: 1) the Court must determine whether joinder of the two new defendants is barred by the statute of limitations; and 2) if so, whether the amendment relates back under Rule 15(c).⁷ The Court will first turn to the applicable statute of limitations for the claims in Evans' Amended Complaint.

1. Statute of Limitations

The first two causes of action in the Amended Complaint are product liability claims.⁸ The applicable statute of limitations for product liability claims is found in O.R.C. § 2305.10, which provides that "an action based on a product liability claim ... shall be brought within two years after the cause of action accrues." Ohio Rev.Code § 2305.10. The accident at issue in this case occurred on or about April 24, 2007. (Doc. 24 at 2.) Evans filed his Motion to Amend on September 17, 2009. (Doc. 19.) The time span between the accident and the date of the Motion to Amend is greater than two years. The statute of limitations for the product liability claims, therefore, has already expired. Accordingly, joinder is not permissible unless the amendments relate back to the date of the filing of the Complaint under Rule 15(c).

The proposed Amended Complaint seeks to add an additional claim of professional negligence against Underwood and Yanke to Count Five.⁹ The parties disagree which statute of limitations applies to this professional negligence claim as no court in Ohio has decided what the appropriate statute of limitations is for injuries resulting from the negligence of prosthetists. Hanger argues that, because the services provided by prosthetists are medical in nature and because the claims against the prosthetists are analogous to medical claims under O.R.C. § 2305.113, the...