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Mallory v. Biomet, Inc.

United States District Court, M.D. Alabama, Northern Division

December 4, 2014

BIOMET, INC., Defendant.


SUSAN RUSS WALKER, Chief Magistrate Judge.

Plaintiff Betty Mallory commenced the present products liability action in the Circuit Court of Chilton County, Alabama, on March 13, 2014, against defendant Biomet, Inc. ("Biomet") and a number of fictitious defendants. Plaintiff asserts a claim against Biomet pursuant to the Alabama Extended Manufacturers Liability Doctrine ("AEMLD"), alleging that fracture stem hardware manufactured by Biomet and implanted into the plaintiff was defective and unreasonably dangerous, resulting in a serious infection and injury to the plaintiff. Plaintiff alleges that "she incurred medical expense and will do so in the future; she incurred physical pain and mental anguish and will do so in the future; [and that] she was permanently disfigured and disabled." (Complaint, Doc. # 1-2). Biomet removed the action to this court on September 25, 2014, within thirty days after it was served with a copy of the summons and complaint, on the basis of diversity jurisdiction. (Doc. # 1; id. at ¶ 3 and n. 1; Doc. # 1-1 at pp. 3, 20-21, 26).

Plaintiff does not challenge defendant's allegations regarding citizenship of the parties or its contention that "[t]he amount in controversy in this action exceeds $75, 000, exclusive of interest and costs." (See Doc. # 1, ¶¶ 6, 7, 10). The court has, nevertheless, examined its own authority to proceed in this matter and concludes that this action does fall within the subject matter jurisdiction conferred on the district courts of the United States by 28 U.S.C. § 1332(a).[1]

This action is presently before the court on Biomet's motion to dismiss, filed on October 2, 2014 (Doc. # 4). Biomet contends that plaintiff's claim against it is due to be dismissed as barred by the applicable statute of limitations, and also because plaintiff fails to allege a plausible claim for relief against Biomet. Plaintiff has filed a response in opposition to the motion (Doc. # 13). Upon consideration of the parties' arguments in support of and in opposition to the motion, the court concludes that the motion to dismiss is due to be granted.


To overcome a defendant's Rule 12(b)(6) motion, the complaint must include "a short and plain statement of the claim showing that the [plaintiff] is entitled to relief." Fed.R.Civ.P. 8(a)(2). The complaint must include factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp v. Twombly, 550 U.S. 544, 555 (2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements" are insufficient to state a claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citing Twombly, 550 U.S. at 555). Courts considering motions to dismiss first "eliminate any allegations in the complaint that are merely legal conclusions" and, then, determine whether the well-pleaded factual allegations of the complaint - assuming their veracity - "plausibly give rise to an entitlement to relief.'" See American Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)(citing Iqbal, 129 S.Ct. at 1950). In considering a Rule 12(b)(6) motion, the court "limits its consideration to the pleadings and exhibits attached thereto.'" Thaeter v. Palm Beach County Sheriff's Office, 449 F.3d 1342, 1352 (11th Cir. 2006)(quoting Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000)( per curiam ); see also Fuller v. SunTrust Banks, Inc., 744 F.3d 685, 695-96 (11th Cir. 2014)(also noting the general rule).


Statute of Limitations

Plaintiff asserts a single cause of action against Biomet, claiming that it is liable to her under the AEMLD (Complaint, Count One). Whether plaintiff's cause of action is barred by the statute of limitations is governed by Alabama law. Cambridge Mut. Fire Ins. Co. v. City of Claxton, Ga., 720 F.2d 1230, 1232 (11th Cir. 1983). The statute of limitations that applies to plaintiff's AEMLD claim is the two-year limitations period set forth in Section 6-2-38(l) of the Alabama Code. Smith v. Medtronic, Inc., 607 So.2d 156, 159 (Ala. 1992); Ala. Code, §6-2-38(l)("All actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years.").

Although a statute of limitations bar is an affirmative defense ( Special Assets, L.L.C. v. Chase Home Finance, L.L.C., 991 So.2d 668, 675 (Ala. 2007)), a "Rule 12(b)(6) dismissal on statute of limitations grounds is appropriate if it is apparent from the face of the complaint that the claim is time-barred." Gonsalvez v. Celebrity Cruises, Inc., 750 F.3d 1195, 1197 (11th Cir. 2013)(internal quotation marks and citation omitted); see also Quiller v. Barclays American/Credit, Inc., 727 F.2d 1067, 1069 (11th Cir. 1984), reinstated on rehearing en banc, 764 F.2d 1400 (11th Cir. 1985)("Generally, the existence of an affirmative defense will not support a motion to dismiss. Nevertheless, a complaint may be dismissed under Rule 12(b)(6) when its own allegations indicate the existence of an affirmative defense, so long as the defense clearly appears on the face of the complaint."). Thus, on the present motion, defendant is entitled to prevail on its statute of limitations defense only if "the defense's existence can be judged on the face of the complaint" ( Concordia v. Bendekovic, 693 F.2d 1073, 1075 (11th Cir. 1982)) - i.e., if plaintiff's allegations clearly establish the defense. Defendant contends that they do.

As noted above, plaintiff filed the present complaint on March 13, 2014. (See Complaint, p. 1, Clerk's date stamp). Thus, defendant is entitled to dismissal on the basis of its statute of limitations defense if plaintiff's allegations clearly establish that her claim accrued before March 13, 2012. The injury that plaintiff alleges is the Citrobacter infection, as defendant contends. (See Complaint, ¶ 10; Doc. # 4, p. 5). Defendant argues, thus, that "for Plaintiff's claim to be timely, the infection could not have been present or manifest before March 13, 2012." (Id.). Plaintiff contends that her claim did not accrue until May 2012, when her doctors diagnosed the Citrobacter infection in the hardware in her leg. (Doc. #13). The court need not decide which party is correct regarding the date of accrual, however, because - accepting for purposes of this motion that plaintiff's claim accrued when the Citrobacter infection appeared, not when it was diagnosed - plaintiff's allegations do not clearly establish that the infection was present before March 13, 2012. Thus, the statute of limitations defense does not "clearly appear[] on the face of the complaint" ( Quiller, 727 F.2d at 1069).

Plaintiff alleges that she had hip replacement surgery in May of 2007, during which a "fracture stem" manufactured by Biomet was implanted. (Complaint, ¶ 4). She further alleges:

In April of 2010, Plaintiff was involved in a serious car accident. The injuries included a left femur fracture, periprosthetic. That injury required an open reduction and fixation surgery in which metal plates and other hardware were surgically implanted in the plaintiff's leg.
In approximately January of 2012, Plaintiff sustained a bump to her knee. Subsequent to that, severe swelling and pain began in the area of the knee and leg. It was finally determined in May of 2012 that Plaintiff had a chronic Citrobacter infection in the hardware in her leg that was causing ...

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