Reece v. Intuitive Surgical, Inc.

• Decision Date: 09 December 2014
• Docket Number: Case No. 5:13–cv–01091–MHH.
• Citation: 63 F.Supp.3d 1337
• Parties: Homer Lee REECE, and Nelda Reece, Plaintiffs, v. INTUITIVE SURGICAL, INC., Defendant.
• Court: U.S. District Court — Northern District of Alabama

63 F.Supp.3d 1337

Homer Lee REECE, and Nelda Reece, Plaintiffs

v.INTUITIVE SURGICAL, INC., Defendant.

Case No. 5:13–cv–01091–MHH.

United States District Court, N.D. Alabama, Northeastern Division.

Signed Dec. 9, 2014.

Bobby Jewell Bell, Jr., C. Carter Clay, Hollis Wright Clay & Vail PC, Birmingham, AL, for Plaintiffs.

F.M. Haston, III, Lindsey C. Boney, IV, Bradley Arant Boult Cummings, Birmingham, AL, for Defendant.

MEMORANDUM OPINION AND ORDER

MADELINE HUGHES HAIKALA, District Judge.

In this diversity action, plaintiffs Homer Lee Reece and Nelda Reece assert claims against defendant Intuitive Surgical, Inc. under Tennessee law. The claims relate to injuries that Mr. Reece sustained during a surgical procedure in which Mr. Reece's physician used Intuitive's surgical robot known as the da Vinci Surgical System. During the procedure, Mr. Reece suffered injuries that required a 44–day hospitalization and multiple follow-up treatments.

Intuitive has filed a motion to dismiss. The company contends that Tennessee's one-year statute of limitations bars the Reeces' claims. (Doc. 7). Employing Alabama's choice of law rules, the Court finds that Alabama's two-year statute of limitations governs the Reeces' claims. Therefore, the Reeces' claims are timely.

I. STANDARD OF REVIEW

“A statute of limitations bar is ‘an affirmative defense, and ... plaintiff [s] [are] not required to negate an affirmative defense in [their] complaint.’ ” La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir.2004) (citing Tregenza v. Great American Communications Co.,

12 F.3d 717, 718 (7th Cir.1993) ). A Rule 12(b)(6) dismissal “on statute of limitations grounds is appropriate only if it is ‘apparent from the face of the complaint’ that the claim is time-barred.” Bhd. of Locomotive Engineers & Trainmen Gen. Comm. of Adjustment CSX Transp. N. Lines v. CSX Transp., Inc., 522 F.3d 1190, 1194 (11th Cir.2008) (citing Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1288 (11th Cir.2005) ). When deciding a Rule 12(b)(6) motion to dismiss, the Court must accept “the facts alleged in the complaint as true” and must “draw[ ] all reasonable inferences in the plaintiff's favor.” Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir.2010).

II. PROCEDURAL AND FACTUAL BACKGROUND

In 2011, Mr. Reece learned that he had prostate cancer. His doctors recommended that he undergo a robotic procedure using Intuitive Surgical's da Vinci Surgical System to treat the cancer. (Doc. 1, ¶¶ 7, 9). Mr. Reece travelled from his home in Bryant, Alabama to Memorial Hospital in Chattanooga, Tennessee for the surgery. (Doc. 1, ¶¶ 1, 10). The surgery took place on June 9, 2011. During the procedure, Mr. Reece sustained injuries to his intestines and small bowels “by the use of the da Vinci surgical robot manufactured and sold by ... Intuitive.” (Doc. 1, ¶ 10). The doctors converted the robotic surgery to an open laparotomy surgery to repair the lacerations and tears on Mr. Reece's intestines and small bowels. (Doc. 1, ¶ 10). Mr. Reece spent the next 44 days in the hospital. (Doc. 1, ¶ 11). Mr. Reece's injuries required eight follow-up procedures. (Doc. 1, ¶ 13).

Mr. Reece and his wife filed this lawsuit against Intuitive on June 7, 2013. In their complaint, the Reeces assert seven state law claims against Intuitive: (1) product liability (Doc. 1, ¶¶ 48–76); (2) general negligence and negligent training, negligent proctoring, and negligent certification (Doc. 1, ¶¶ 77–82); (3) fraud (Doc. 1, ¶¶ 83–93); (4) breach of express warranty (Doc. 1 ¶¶ 94–103); (5) breach of implied warranty (Doc. 1, ¶¶ 104–11); (6) unjust enrichment (Doc. 1, ¶¶ 112–17); and (7) loss of consortium (Doc. 1, ¶¶ 118–20). Intuitive filed a motion to dismiss the Reeces' claims. (Doc. 7). This order resolves Intuitive's motion to dismiss.

III. ANALYSIS

A federal court sitting in diversity applies the substantive law of the state in which the court sits, including the state's choice-of-law rules. Manuel v. Convergys Corp., 430 F.3d 1132, 1139 (11th Cir.2005) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941) ); Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941) (finding that forum state's choice-of-law rules are substantive). Under Alabama's choice of law rules, courts must apply the law of the place of the injury—the lex loci delicti —to “determine the substantive rights of an injured party.” Middleton v. Caterpillar Indus., Inc., 979 So.2d 53, 57 (Ala.2007) (citing Fitts v. Minnesota Mining & Mfg. Co., 581 So.2d 819, 820 (Ala.1991) ) (internal citations omitted).¹ The law of the forum—the lex fori —governs procedural matters. Middleton, 979 So.2d at 57. Because Mr. Reece's injuries occurred in Tennessee, this Court will apply Tennessee law to resolve all of the substantive issues in the case. The Court will follow Alabama law with respect to procedural issues.

To resolve Intuitive's motion to dismiss, the Court must determine whether the limitations language in the Tennessee Product Liability Act (“TPLA”), Tenn.Code. Ann. § 29–28–101 et seq., is procedural or substantive. “ ‘Where the statute of limitations [is procedural, and] goes only to the remedy, it seems to be the settled rule that the lex fori, and not the lex loci, governs.’ ” Etheredge v. Genie Industries, Inc., 632 So.2d 1324, 1326 (Ala.1994) (quoting Mullins v. Ala. Great Southern Ry., 239 Ala. 608, 195 So. 866 (1940) ). “ ‘By legal tradition, most statutes of limitation are deemed procedural rather than substantive.’ ” Id. (quoting Robert A. Leflar, et al., American Conflicts Law 348 (1986)); see also Cofer v. Ensor, 473 So.2d 984, 987 (Ala.1985) (“ ‘Alabama decisions state that a statute of limitations, unless the act specifically declares otherwise, is construed as affecting the remedy only.’ ”) (quoting State Dep't of Rev. v. Lindsey, 343 So.2d 535, 537 (Ala.Civ.App.1977) ). But the Alabama Supreme Court recognizes a distinction “ ‘between a true statute of limitations and a statute which creates a new right of action with an express restriction on the time within which an action may be brought to enforce the right.’ ” Etheredge, 632 So.2d at 1326 (quoting Cofer, 473 So.2d at 987 ). The Alabama Supreme Court labels the latter a “statute of creation.” The Alabama Supreme Court regards a statute of creation as a principle of substantive law because “ ‘the limitation is so inextricably bound up in the statute creating the right that it is deemed a portion of the substantive right itself.’ ” Id. at 1327 (quoting Cofer, 473 So.2d at 987 ).

The limitations language in the TPLA appears in § 29–28–103(a). Section 29–28–103(a) provides that:

Any action against a manufacturer or seller of a product for injury to person or property caused by its defective or unreasonably dangerous condition must be brought within the period fixed by §§ 28–3–104, 28–3–105, 28–3–202 and 47–2–725, but notwithstanding any exceptions to these provisions, it must be brought within six (6) years of the date of injury, in any event, the action must be brought within ten (10) years from the date on which the product was first purchased for use or consumption, or within one (1) year after the expiration of the anticipated life of the product, whichever is the shorter, except in the case of injury to minors whose action must be brought within a period of one (1) year after attaining the age of majority, whichever occurs sooner.

Tenn.Code. Ann. § 29–28–103(a). The first sentence of § 29–28–103(a) refers to limitations periods that appear elsewhere in the Tennessee Code. One of those limitations periods, § 28–3–104, is located in the “Limitations of Actions” chapter of the Tennessee Code. Section 104 of the chapter is entitled “Personal tort actions; actions against certain professionals.” Section 104 lists, among other things, categories of tort actions to which a one year statute of limitations applies. Section 28–3–104(a)(1) states that actions “for injuries to the person,” including products liability actions, “shall be commenced within one (1) year after the cause of action accrued.” Tenn.Code. Ann. § 28–3–104(a)(1).²

Intuitive argues that the TPLA incorporates § 28–3–104(a)(1)'s one-year statute of limitations into § 29–28–103(a) and that § 29–28–103(a) is a statute of creation. As support for its argument, Intuitive cites Strayhorn v. Wyeth Pharmaceuticals, Inc., 737 F.3d 378 (6th Cir.2013). In that case, the Sixth Circuit Court of Appeals examined a variety of product liability claims in seven consolidated cases in which the plaintiffs alleged that they developed a serious neurological disorder after they ingested a prescription drug. Id. at 383. The appellate court agreed with the district court's holding that:

[t]he TPLA governs products liability actions in Tennessee and defines “product liability action[s]” as “all actions brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formula, preparation, assembly, testing, service, warning, instruction, marketing, packing, or labeling of any product.” The TPLA also encompasses several different theories of products liability: “strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation, concealment, or nondisclosure, whether negligent or innocent; or under any other substantive legal theory in tort or contract whatsoever.”

Id. at 392 (quoting Strayhorn v. Wyeth Pharm., Inc., 887 F.Supp.2d 799, 813 (W.D.Tenn.2012) ). Beyond recognizing that the TPLA embraces all product liability theories under Tennessee law, Strayhorn sheds no light on the issue before the Court. Strayhorn does not mention whether the TPLA created “a new right of action” such that it would be considered a statute of creation under Alabama law. And even if the...