United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. Miller, Jr. Judge
Stayanoff and his spouse, Jude Holbrook, sued Biomet for
damages in connection with the alleged failure of Mr.
Stayanoff's Biomet M2a-38 hip implant. Biomet moved for
summary judgment, arguing that the applicable statute of
limitations bars their claims. For the following reasons,
Biomet's summary judgment motion is denied with respect
to all claims, except the breach of warranty claims.
judgment is appropriate when the pleadings, discovery
materials, disclosures, and affidavits demonstrate no genuine
issue of material fact, such that the movant is entitled to
judgment as a matter of law. Protective Life Ins. Co. v.
Hansen, 632 F.3d 388, 391-392 (7th Cir. 2011). I must
construe the evidence and all inferences that reasonably can
be drawn from the evidence in the light most favorable to the
plaintiffs, as the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). As the moving
party, Biomet bears the burden of informing me of the basis
for its motion, together with evidence demonstrating the
absence of any genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). If Biomet
meets that burden, the plaintiffs can't rest upon the
allegations in the pleadings, but must “point to
evidence that can be put in admissible form at trial, and
that, if believed by the fact-finder, could support judgment
in his favor.” Marr v. Bank of Am., N, A., 662
F.3d 963, 966 (7th Cir. 2011); see also Hastings Mut.
Ins. Co. v. LaFollette, No. 1:07-cv-1085, 2009 WL
348769, at *2 (S.D. Ind. Feb. 6, 2009) (“It is not the
duty of the court to scour the record in search of evidence
to defeat a motion for summary judgment; rather, the
nonmoving party bears the responsibility of identifying the
evidence upon which he relies.”); Hammel v. Eau
Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005)
(summary judgment is “not a dress rehearsal or practice
run; it is the put up or shut up moment in a lawsuit, when a
party must show what evidence it has that would convince a
trier of fact to accept its version of events”).
Stayanoff received two Biomet M2a-38 implants in North
Carolina - one on March 8, 2005 (the right hip) and the other
on June 20, 2005 (the left hip). After metal ion testing on
January 21, 2013 showed elevated levels of cobalt, Mr.
Stayanoff conducted internet research and discovered that the
high cobalt levels could have resulted from grinding of metal
against metal. On February 21, 2013, doctors told Mr.
Stayanoff that an MRI showed fluid collection consistent with
metallosis and recommended revision surgery. The first
revision surgery was performed on March 12, 2013 (left hip)
and the second on October 1, 2014 (right hip). Mr. Stayanoff
had a third revision surgery on the left hip on January 22,
2014, after the cup loosened. A fourth revision surgery was
performed on December 15, 2015 on the right hip.
the January 2014 revision, the surgeon told Mr. Stayanoff the
revision device had failed because the metal from his Biomet
M2a implant had so severely damaged his bone that the bone
didn't grow into the revision device as intended.
federal jurisdiction is based on diversity of citizenship,
the choice-of-law rules to be used are those choice-of-law
rules of the states where the actions were originally filed,
” In re Air Crash Disaster Near Chicago, 644
F.2d 594, 610 (7th Cir. 1981), in this case, that state is
North Carolina. Under North Carolina law, statutes of
limitations are procedural, and so North Carolina courts
apply North Carolina statutes of limitations, Boudreau v.
Baughman, 368 S.E.2d 849, 857 ( N.C. 1988), as will I.
North Carolina, a personal injury plaintiff must file within
three years of when the cause of action accrues. N.C. Gen.
Stat. § 1-52(5). Under the discovery rule established in
N.C. Gen. Stat. § 1-52(16), a personal injury cause of
action accrues when the plaintiff discovers, or through the
exercise of reasonable diligence should discover, the injury
and that it may have been caused by a defendant's
conduct. Birtha v. Stonemore, N.C., LLC, 727 S.E.2d
1, 7 (2012).
contends that the statute started to run in January 2013,
when metal ion testing showed elevated levels of cobalt and
Mr. Stayanoff ran an internet search to identify the cause of
the high levels. Mr. Stayanoff maintains that he didn't
understand what caused his injury until 2014, when he learned
from the second revision surgery that the release of metal
ions caused the damage.
simpler contexts, a plaintiff's knowledge that
there's a problem is enough to start the limitations
period. For example, knowledge that a roof leaks puts a
plaintiff “on inquiry as to the nature and extent of
the problem.” Pembee Mfg. Corp. v. Cape Fear
Constr. Co., 329 S.E.2d 350, 354 ( N.C. 1985).
There's an obvious potential cause to a leaky roof - poor
installation by the roofer. But medical claims often involve
a more complex trigger. “Especially in the medical
field, plaintiffs may lack the expertise to know whether the
ill effects they have suffered are a result of someone's
wrongdoing, or merely an unexpected result, or inevitable or
unforeseeable risk of their treatment.” Black v.
Littlejohn, 325 S.E.2d 469, 481 ( N.C. 1985). Revision
surgery within months of a hip implant could, without
additional information, mean medical malpractice, a problem
with the device, an unpreventable infection, or any other
“inevitable or unforeseeable risk of [ ]
medical situations, “[w]here causation of an injury is
unknown, the action accrues when both the injury and its
cause have been (or should have been) discovered. Where the
injury and causation are known, but not that there has been
any wrongdoing, the action is held to accrue when the
plaintiff discovered, or by due diligence should have
discovered, the wrongdoing.” Id. at 482
(italics omitted). In Black v. Littlejohn, the
plaintiff received drastic surgery for an illness that, years
later, she learned could have easily been treated with a
drug. Id. The claim accrued only on discovery of the
simpler procedure years later, which alerted her to her
doctor's negligence. Id. Needing revision alone,
even needing four revisions, might not be a strong enough
clue of the wrongdoing.
Stayanoff might have known in February 21, 2013 that grinding
on metal can cause high metal levels in the blood, and that
his doctor was recommending revisions surgery because an MRI
showed fluid collection “consistent with
metallosis”, but with the complexities of medical
treatment, a genuine issue of fact exists as to whether Mr.
Stayanoff had enough information in 2013 to put him on
inquiry notice of any wrongdoing on Biomet's part
relating to the failure of the device. Biomet's motion is
therefore denied as to the product liability and related
negligence claims (Counts 1-3 and 7-8).
Stayanoff's breach of warranty claims are subject to
different provisions: a four-year limitations period that
accrues “when tender of deliver is made”, unless
the warranty related to future performance, and accrues
“regardless of the aggrieved party's lack of
knowledge of the breach.” N.C. Gen. Stat. §§
25-2-725(1), (2); see Boudreau v. Baughman, 368
S.E.2d 849, 854 ( N.C. 1988) (applying limitations period to
implied warranty claims). “Tender of delivery”
was the time of the implants in March and June 2005. Those
dates are more than ten years before Mr. Stayanoff filed his
the “warranty explicitly extend[ed] to future
performance of the goods, ” discovery of the breach
must await the time of such performance.” N.C. Gen.
Stat. § 25-2-725(2). Mr. Stayanoff alleged in his
complaint that Biomet expressly warranted that the device was
safe, effective, and would last longer than traditional
metal-on-polyethylene implant. But he hasn't presented
any evidence to support his claim that Biomet extended a
warranty on future performance, or that Mr. Stayanoff relied
on that warranty. Under the circumstances, his breach of
warranty claims are time-barred, and Biomet is entitled to
summary judgment on those claims (Counts 4-6).
for fraud or misrepresentation under the UDTPA are also
governed by a four-year statute of limitations, N.C. Gen.
Stat. § 75-16.2, and “accrue either when the
fraud or misrepresentation is discovered or should have been
discovered with the exercise of ‘reasonable
diligence.'” Sebastion v. Davol, Inc.,
2017 WL 3325744, at *1 (W.D. N.C. Aug. 3, 2017) (citing
Dreamstreet Investments, Inc. v. MidCountry Bank,
842 F.3d 825, 830 (4th Cir. 2016) and Lawley v. Liberty
Mutual Group, Inc., 2012 WL 4513622, at *7 (W.D. N.C.
Sep. 28, 2012)). See also S.B. Simmons Landscaping &
Excavating, Inc. v. Boggs, 665 S.E.2d 147, 150 ( N.C.
Ct. App. 2008); Hunter v. Guardian Life Ins. Co.,
593 S.E.2d 595, 601 ( N.C. App. 2004). Biomet's summary
judgment motion clothes a motion to dismiss for failure to
state a claim on which relief can be granted: Biomet claims
that Mr. Stayanoff's complaint doesn't plead the
claimed fraud with the specificity required by Fed.R.Civ.P.
9(b). The complaint ...