Williams v. Gyrus Acmi Inc. (f/K/A Acmi Corp..)

• Decision Date: 09 June 2011
• Docket Number: Civil No. CCB–11–323.
• Citation: 790 F.Supp.2d 410
• Parties: Kimberly E. WILLIAMSv.GYRUS ACMI, INC. (f/k/a ACMI Corp.), et al.
• Court: U.S. District Court — District of Massachusetts

790 F.Supp.2d 410

Kimberly E. WILLIAMS

v.GYRUS ACMI, INC. (f/k/a ACMI Corp.), et al.

Civil No. CCB–11–323.

United States District Court, D. Maryland.

June 9, 2011.

Christian Clark Mester, Jean Marie Jones, Goldberg Finnegan and Mester LLC, Silver Spring, MD, David M. Kopstein, Kopstein and Associates LLC, Seabrook, MD, for Kimberly E. Williams.Stephen Salvatore McCloskey, Semmes Bowen and Semmes, Baltimore, MD, Jameson B. Carroll, JBC Law Group, Atlanta, GA, Kevin M. Cox, Semmes Bowen and Semmes PC, Baltimore, MD, for Gyrus ACMI, Inc. (f/k/a ACMI Corp.), et al.

MEMORANDUM

CATHERINE C. BLAKE, District Judge.

Plaintiff Kimberly Williams (“Williams”) brought this action against Defendants Gyrus ACMI, Inc.; Gyrus Medical, Inc.; Gyrus ACMI, LLC; and Gyrus ACMI Limited Partnership (collectively, “the Gyrus Defendants”) and Olympus America, Inc. (“OAI”). Williams asserts claims for negligence, breach of express and implied warranties, and strict liability arising from an incident in which a portion of a medical instrument allegedly was left in Williams's body following a surgical procedure. Now pending before the court is the Gyrus Defendants' motion to dismiss the strict liability claims and OAI's motion to dismiss or, in the alternative, for summary judgment. The defendants' motions will be granted.

BACKGROUND

On February 8, 2008, at Portsmouth Naval Medical Center in Virginia, Williams underwent a total vaginal hysterectomy and cystoscopy. Ultrasounds performed prior to the procedure showed no evidence of a foreign object in her pelvis. (Compl. ¶¶ 12–13.) Medical records indicate the Gyrus ACMI PKS SEAL Open Forceps (“Gyrus Forceps”), which were designed, manufactured, and sold by the defendants ( Id. ¶¶ 5–9),¹ were inserted into Williams's body during the procedure. A portion of the Gyrus Forceps fell off and was unintentionally left in Williams's body following the surgery. Williams reports she experienced lower abdominal pressure and pain immediately after the surgery. This pain continued over subsequent months. ( Id. ¶¶ 14–18.)

Williams presented to National Naval Medical Center in Maryland on July 5, 2009, complaining of severe abdominal pain, nausea, and near-fainting. A CT scan revealed a foreign object in her pelvis. The following day, she underwent an operation to remove the object, which was later identified as a portion of the Gyrus Forceps, called a “shim.” Williams alleges she suffered and continues to suffer physical and emotional harm because the shim remained in her body following the surgery. ( Id. ¶¶ 19–25.)

In the instant action, Williams asserts six counts: (I) negligence; (II) breach of express warranty; (III) breach of implied warranty; (IV) strict liability—defect in design; (V) strict liability—defect in manufacture; (VI) strict liability—failure to warn.

STANDARD

“[T]he purpose of Rule 12(b)(6) is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir.2006) (internal quotation marks and alterations omitted) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.1999)). When ruling on such a motion, the court must “accept the well-pled allegations of the complaint as true,” and “construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff.” Ibarra v. United States, 120 F.3d 472, 474 (4th Cir.1997). “Even though the requirements for pleading a proper complaint are substantially aimed at assuring that the defendant be given adequate notice of the nature of a claim being made against him, they also provide criteria for defining issues for trial and for early disposition of inappropriate complaints.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir.2009).

To survive a motion to dismiss, the factual allegations of a complaint “must be enough to raise a right to relief above the speculative level, ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations and alterations omitted). Thus, the plaintiff's obligation is to set forth sufficiently the “grounds of his entitlement to relief,” offering “more than labels and conclusions.” Id. (internal quotation marks and alterations omitted). It is not sufficient that the well-pleaded facts create “the mere possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). Rather, to withstand 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,” meaning the court could draw “the reasonable inference that the defendant is liable for the conduct alleged.” Id. at 1949 (internal quotations and citation omitted).

ANALYSIS

I. Strict Liability Claims: Counts IV, V, and VI

The Gyrus Defendants and OAI move to dismiss Williams's strict liability claims on the grounds that Virginia law applies to this action and Virginia has not adopted strict liability in tort for products claims. Williams contends Maryland law applies.

A. Lex Loci Delicti Rule

It is well established that a federal court sitting in diversity applies the choice-of-law rules of the state in which it sits. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Despite a modern trend favoring alternative approaches, “Maryland adheres to the lex loci delicti rule” to determine the applicable law in tort actions. Philip Morris Inc. v. Angeletti, 358 Md. 689, 752 A.2d 200, 230 (2000); see also Erie Ins. Exch. v. Heffernan, 399 Md. 598, 925 A.2d 636, 651 (2007) (“We see no reason to discontinue our adherence to the principles of lex loci delicti.”). Under this rule, “the substantive tort law of the state where the wrong occurs governs.” Hauch v. Connor, 295 Md. 120, 453 A.2d 1207, 1209 (1983). “[W]here the events giving rise to a tort action occur in more than one State,” the court must “apply the law of the State where the injury—the last event required to constitute the tort—occurred.” Lab. Corp. of Am. v. Hood, 395 Md. 608, 911 A.2d 841, 845 (2006); see also Angeletti, 752 A.2d at 231; Restatement (First) of Conflict of Laws ² § 377 (1934) (“The place of the wrong is ... where the last event necessary to make an actor liable for an alleged tort takes place.”).

The place of injury need not be the place where the wrongful act occurred. Johnson v. Oroweat Foods Co., 785 F.2d 503, 511 (4th Cir.1986) (citations omitted); see also Restatement (First) of Conflict of Laws § 377 note 1. Rather, an injury is deemed to occur where the plaintiff first suffers harm, even if the tortious conduct subsequently results in additional or more severe harm elsewhere. See Burnside v. Wong, 412 Md. 180, 986 A.2d 427, 438 (2010) (“[A] medical injury may occur ‘even though all of the resulting damage to the patient’ has not yet occurred.” (quoting Green v. N. Arundel Hosp. Ass'n, 366 Md. 597, 785 A.2d 361, 368 (2001))); see also St. George v. Pariser, 253 Va. 329, 484 S.E.2d 888, 890 (1997) ( “[A]n injury is deemed to occur ... whenever any injury, however slight, is caused by the negligent act, even though additional or more severe injury or damage may be subsequently sustained as a result of the negligent act.” (citation omitted)); Restatement (First) of Conflict of Laws § 377 note 1.

The allegations of the complaint make clear that Williams first sustained injury from the shim while in Virginia. As courts in other jurisdictions have observed, where a foreign object is erroneously left in a patient's body during a medical procedure, the legal injury occurs at the time of that procedure because the patient can immediately bring suit for the object's removal. See, e.g., Neubauer v. Owens–Corning Fiberglas Corp., 686 F.2d 570, 572–73 (7th Cir.1982) (noting that Wisconsin courts have found the injury to occur “at the time the foreign object was placed in the body” because “even if [the object was] causing no present discomfort, the plaintiff could sue immediately for [its] removal”); Melfi v. Mount Sinai Hosp., 64 A.D.3d 26, 877 N.Y.S.2d 300, 309 (App.Div.2009) (“In [foreign-object] cases, it is indisputable that actual injury occurs when the foreign object is left inside the body.”); Estate of Genrich v. OHIC Ins. Co., 318 Wis.2d 553, 769 N.W.2d 481, 487–88 (2009); Raftery v. Wm. C. Vick Constr. Co., 291 N.C. 180, 230 S.E.2d 405, 409 (1976).³ Therefore, even if she did not begin to experience pain or other symptoms from the shim's presence until she relocated to Maryland, Williams's injury occurred at the time the object was left in her body.

Moreover, the allegations demonstrate Williams in fact did begin to experience physical symptoms from the shim's implantation while in Virginia. She alleges that immediately following the surgery, while at the Portsmouth Naval Medical Center in Virginia, she suffered abdominal pain and pressure. This pain, she claims, did not subside over the following months. Even viewing the allegations in the light most favorable to the plaintiff, this court must infer that Williams's pain was not solely a normal aspect of her recuperation from surgery, but rather at least in part the result of the foreign object left in her body. It is immaterial, then, that the object's presence was uncovered in Maryland or that the shim was removed in this state.

Williams's injury occurred in Virginia. Accordingly, under the rule of lex loci delicti, Virginia law governs the plaintiff's claims.

B. Public Policy Exception

Williams argues that if Virginia law governs her claims under the principle of lex loci delicti, Maryland public policy so strongly favors strict products liability that this court must refuse to apply Virginia law on this issue. The Maryland Court of...