In re Fresenius Granuflo/Naturalyte Dialysate Prods. Liab. Litig.
| Decision Date | 02 January 2015 |
| Docket Number | MDL No. 13–02428–DPW. |
| Citation | 76 F.Supp.3d 294 |
| Parties | In re FRESENIUS GRANUFLO/NATURALYTE DIALYSATE PRODUCTS LIABILITY LITIGATION. This Order Relates To All Cases Involving the Prescription, Purchase or Use of Granuflo/Dialysate Products In the State of Mississippi. |
| Court | U.S. District Court — District of Massachusetts |
James A. Wells, Meyerson & O'Neill, Philadelphia, PA, Tamara Fraizer, Fish & Richardson P.C., Redwood City, CA, Thomas M. Melsheimer, Fish & Richardson, P.C., Dallas, TX, for Fresenius Granuflo/Naturalyte Dialysate Products Liability Litigation.
In the motion to dismiss now before me, certain of the defendants,2 whom I will refer to collectively as FMCNA, move to dismiss as being filed outside of the statute of limitations one hundred twenty-seven cases involving plaintiffs alleging injury in Mississippi following receipt of dialysis treatment.
Plaintiffs in this multidistrict litigation (MDL) allege that injury or death was suffered as a result of the use of NaturaLyte and GranuFlo, two products designed, manufactured, labeled, and distributed by FMCNA. These products were used during hemodialysis
for patients with renal failure. Dialysis is a procedure to remove waste products from the blood of a patient whose kidneys have failed and can no longer serve this important function. Plaintiffs allege that due to the use of these products, there was an unexpectedly high level of bicarbonate in their blood and this increased their risk of cardiopulmonary arrest or sudden cardiac arrest. The plaintiffs say injuries, including cardiac arrest and death, were suffered after treatment with these products.
The cases in this MDL share common factual questions, including whether GranuFlo and NaturaLyte were defectively designed or manufactured, whether FMCNA knew or should have known of the risks, and whether FMCNA provided adequate instructions and warnings. Plaintiffs allege (1) strict liability, (2) negligent failure to warn, (3) negligent design, (4) negligence, (5) negligent misrepresentation, (6) breach of implied warranty of merchantability, (7) breach of implied warranty of fitness for a particular purpose, (8) breach of express warranty, (9) fraud, (10) violation of consumer protection laws, (11) loss of consortium, (12) wrongful death, and (13) a survival action on behalf of the decedent's estate.
The specific plaintiffs at issue in this motion to dismiss were either patients who underwent dialysis using GranuFlo or NaturaLyte in Mississippi and suffered injury, or they are residents of Mississippi bringing suit on behalf of a decedent who suffered cardiac arrest
or other injury after undergoing dialysis in Mississippi and died. Each of the one hundred twenty-seven cases at issue in this motion was filed over three years after the injuries or deaths alleged in the complaint.3
On March 29, 2013, the Judicial Panel on Multidistrict Litigation (“JPML”) ordered the transfer of numerous civil actions against FMCNA concerning its GranuFlo and NaturaLyte products to this court for purposes of pretrial proceedings. This multidistrict litigation-styled by the JPML as In re: Fresenius GranuFlo/Naturalyte Dialysate Products Liability Litigation, MDL No. 2428–has since grown to about 2,500 cases and continues to grow.
The initial cases were filed either in various federal district courts and then transferred to this MDL, or were initially filed in a state court, removed to a corresponding federal court, and then transferred to the MDL. On February 3, 2014, I adopted Case Management Order number seven (“CMO–7”) as agreed to by the Plaintiffs Executive Committee and by the defendants. The stated purpose of CMO–7 was to “promote efficiency and to eliminate the delays typically associated with the ‘tag-along’ transfer of cases” to this court by the JPML.
CMO–7 created a procedure by which plaintiffs could file their cases directly into the MDL without first being transferred through the JPML. The order stated that a single Master Complaint was deemed pled against the defendants in all cases already filed or that would be filed in this MDL. CMO–7 required each plaintiff, regardless of whether a complaint had already been filed, also to file a Short Form Complaint. The Short Form Complaint that all plaintiffs were required to file contained a check box for whether the plaintiff wanted to chose Massachusetts as the “home forum,” and a place to write in an alternate district that would be appropriate if the plaintiff did not want to choose Massachusetts.
Of the one hundred twenty-seven cases at issue in this motion, one hundred and seven had been filed before the adoption of CMO–7 and were transferred into this MDL by the JPML. One hundred and six were filed directly in Mississippi and then transferred to this MDL and one case was filed in Massachusetts and assigned to the MDL. Pursuant to CMO–7, those plaintiffs adopted a “Master Complaint” filed by the Plaintiffs' Executive Committee and the Plaintiffs' Steering Committee by filing their Short Form Complaint. Some of those plaintiffs chose Massachusetts as their “home forum” in the Short Form Complaint, while others chose Mississippi.
Another twenty cases have been “direct filed” in the MDL pursuant to the procedure in CMO–7. Of the direct filed cases, eleven chose Massachusetts as the “home forum” in the Short Form Complaint and nine chose Mississippi as the “home forum.”
FMCNA has filed specific answers to the complaints in some but not all of the cases at issue here, although the Master Answer is deemed filed in all of those cases.
As a formal matter, the procedural posture of each of these cases controls the applicable Federal Rules of Civil Procedure (a) for cases in which FMCNA has already filed a specific answer, the proper characterization of the motion is as one for judgment on the pleadings pursuant to Rule 12(c); (b) for cases in which a specific answer has not been filed, the proper characterization of the motion is as one to dismiss under Rule 12(b)(6) to dismiss. The question of characterization is ultimately immaterial, however, because a Rule 12(c) motion for judgment on the pleadings is treated in the same manner as a Rule 12(b)(6) motion to dismiss. Portugues–Santana v. Rekomdiv Intern. Inc., 725 F.3d 17, 25 (1st Cir.2013).
For either motion, I may dismiss only if “taking all of the complaint's well-pled allegations as true and viewing the other facts in the light most favorable to the plaintiff, the complaint does not allege ‘enough facts to state a claim to relief that is plausible on its face.’ ” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).
A statute of limitations defense is an affirmative defense that can be addressed by either a 12(b)(6) or a 12(c) motion.
Dismissal may only be granted if “the complaint and any documents that properly may be read in conjunction with it show beyond doubt that the claim asserted is out of time.”Rodi v. Southern New England School of Law, 389 F.3d 5, 17 (1st Cir.2004).
These cases are in federal court because of diversity jurisdiction. 28 U.S.C. § 1332. When jurisdiction is based on diversity of citizenship, federal courts must apply the relevant state statute of limitations. Lareau v. Page, 39 F.3d 384, 387–88 (1st Cir.1994). At issue here is whether to apply the statute of limitations from Mississippi or from Massachusetts. In determining which statute of limitations to apply, I must resolve at the threshold whether Massachusetts or Mississippi choice of law rules are to be used for each category of case at issue in this motion.
The standard choice of law rule in diversity actions invokes application of the choice of law rules of the forum state. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941) ; In re Volkswagen Audi Warranty Extension Litig., 692 F.3d 4, 14 (1st Cir.2012). For MDL matters, in which cases are transferred from all over the country4 to one consolidated location for purposes of efficiency and convenience, the law of the MDL forum itself is not necessarily the proper source for the choice of law standards. The First Circuit has not formally endorsed a choice of law rule for MDLs, but has noted without deciding the issue, that “[w]here a suit is consolidated and transferred under § 1407 [], courts typically apply the choice of law rules of each of the transferor courts.” Volkswagen, 692 F.3d at 17. The First Circuit observed that this approach is consistent with the Supreme Court's holding in Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) that when a case is transferred to a more convenient venue under 28 U.S.C. § 1404(a), a court applies the choice-of-law rules of the state from which the case was transferred. Volkswagen, 692 F.3d at 18. The Supreme Court has characterized transferring a case as a “housekeeping measure” that results in a change of courtrooms but not a change of law. Van Dusen v. Barrack, 376 U.S. 612, 636–37, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964).
This approach is more easily applied to some categories of cases in this MDL than to others. There are five categories of cases at issue in the motion before me. The categories depend on where the cases were filed (including whether they were direct filed in this MDL) and whether Massachusetts or Mississippi was designated as the “home forum” on the Short Form Complaint. The five categorical variations are:
For two categories, the parties agree that the choice of law determination is clear because...
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