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In re Biomet M2a Magnum Hip Implant Products Liability Litigation

United States District Court, N.D. Indiana, South Bend Division

January 3, 2019

IN RE BIOMET M2a MAGNUM HIP IMPLANT PRODUCTS LIABILITY LITIGATION (MDL 2391)
v.
Biomet et al. This Document Relates to Wohlleber Clifford
v.
Biomet et al. Chapman
v.
Biomet et al. Hughes
v.
Biomet et al. Little
v.
Biomet et al. McGinnis
v.
Biomet et al. Wise
v.
Biomet et al.

          OPINION AND ORDER

          Robert L. Miller, Jr. Judge

         Biomet filed motions for summary judgment in seven cases that were centralized or filed directly into this multidistrict litigation docket, which addresses personal injury claims arising from the Biomet M2a and M2a-38 metal-on-metal hip replacement devices. The parties agree that North Carolina law provides the rule of decision in each of the cases. Biomet seeks summary judgment based on North Carolina's repealed statute of repose, N.C. Gen. Stat. § 1-50(a)(6).

         Early on in this multi-district litigation docket, I told the parties that I intended to leave sticky questions of state law to the courts that would try the cases, reasoning that those courts were more familiar than I with the governing law. My second concern was the delay that would affect all cases in the docket as I tried to get up to speed on the laws and doctrines of each state involved in these proceedings. After fulfilling my own prediction about delay on this motion, I have concluded that these North Carolina cases present issues that are best decided by courts more familiar than I with North Carolina law. These cases will fall into several judicial laps in the federal courts of North Carolina, and I believe I owe those judges, as well as the parties, an explanation as to why I am leaving these issues open.

         In 2009, the North Carolina General Assembly amended the applicable statute of repose from a six-year term to a twelve-year term.[1] In six of the seven cases involved in these motions, a Biomet M2a-38 device was implanted into the plaintiff less than six years before that amendment took effect, and suit was filed more than six, but less than twelve years after the device was implanted.[2] Biomet contends that each of the claims was extinguished six years from the date of implantation. In the seventh case, [3] suit was filed more than twelve years after the date of implantation, making it untimely unless the “disease exception” discussed later applies.

         The plaintiffs raise four arguments in opposition to summary judgment: (1) the statute of repose didn't begin to run until the revision surgeries showed what was happening to the plaintffs; (2) equitable tolling in the form of fraudulent concealment halted the running of the statute of repose; (3) North Carolina law recognizes a "disease exception" to the statute of repose, making the statute inapplicable; and (4) the 2009 amendment extended the statute of repose on their claims, which hadn't been extinguished before the amendment took place. I can and will rule on the first and second of those arguments, but North Carolina law appears (to me, at least) to be unsettled with respect to the third and fourth arguments.

         The plaintiffs argue that because they couldn't have known what was happening within the implant areas, the statute of repose didn't begin to run until their revision surgeries took place and they found out what was happening to them. As a general rule - a possible exception is discussed later - that isn't how North Carolina's statute of repose works. Some degree of awareness of the injury is required for a claim to accrue, but the existence or non-existence of a claim's accrual generally doesn't affect operation of the statute of repose. Black v. Littlejohn, 325 S.E.2d 469, 474-475 ( N.C. 1985) ("the period contained in the statute of repose begins when a specific event occurs, regardless of whether a cause of action has accrued or whether any injury has resulted."); Bryant v. Don Galloway Homes, Inc., 556 S.E.2d 597, 600 ( N.C. Ct. App. 2001) ("The repose period begins to run when an event occurs, regardless of whether or not there has been an injury."). Unless some exception to the general rule applies, that the plaintiff hasn't discovered the injury doesn't affect operation of the statute of repose. The first of the plaintiffs' arguments doesn't overcome Biomet's summary judgment motion.

         For their second argument, the plaintiffs rely on equitable tolling, in the form of fraudulent concealment. By fraudulently concealing the nature and likelihood of injury from its product, the plaintiffs argue, Biomet tolled, or temporarily halted, the running of the statute of repose. Each of these plaintiffs filed suit shortly after revision surgery disclosed the problem.

         Biomet contends that the plaintiffs can't raise summary judgment arguments based on fraud because they didn't plead fraud in their complaints pursuant to Rule 9(b) of the Federal Rules of Civil Procedure, because a summary judgment brief can't amend a complaint, and because the plaintiffs can't amend their complaint to include allegations of fraud because the time for amending the pleadings has passed. This argument didn't persuade me when I addressed the summary judgment motion in Debra Nunn's case out of Nebraska, and I remain unpersuaded for the reasons stated in that opinion.

Biomet first argues that Ms. Nunn can't raise a claim of fraudulent concealment. Her complaint contains no such claim, she can't amend her complaint through a summary judgment brief, Anderson v. Donahoe, 699 F.3d 989, 997 (7th Cir. 2012), and the deadline for amending pleadings has long since passed. I agree that each of those propositions is true, but don't believe they foreclose Ms. Nunn's fraudulent concealment argument. Ms. Nunn isn't raising fraudulent concealment as an independent claim for damages or other relief; she invokes it as a type of equitable estoppel - a response to Biomet's affirmative statute of repose defense. Biomet's argument would be right if Ms. Nunn were trying to add a claim for damages, but she isn't. Biomet has cited no authority for the proposition that what the complaint contains or lacks limits what a plaintiff can argue in response to an affirmative defense.

Nunn v. Biomet, Inc., No. 3:14-cv-1487, Doc. No.195 at 3-4 (N.D. Ind. Dec. 21, 2018).

         The North Carolina courts recognize the doctrine of equitable estoppel based on fraudulent concealment:

The essential elements of equitable estoppel are: (1) conduct on the part of the party sought to be estopped which amounts to a false representation or concealment of material facts; (2) the intention that such conduct will be acted on by the other party; and (3) knowledge, actual or constructive of the real facts. The party asserting the defense must have (1) a lack of knowledge and the means of knowledge as to the real facts in question; and (2) relied upon the conduct of the party sought to be estopped to his prejudice.

Trillium Ridge Condo. Ass'n, Inc. v. Trillium Links & Vill., LLC, 764 S.E.2d 203, 216 ( N.C. Ct. App. 2014).

         The plaintiffs' equitable estoppel argument focuses on what they contend Biomet should have revealed about its products, [4] and Biomet vigorously disputes those arguments. Those disputes needn't be resolved because the plaintiffs presented neither argument nor evidence compliant with Fed.R.Civ.P. 56(c) that they relied on Biomet's conduct to their prejudice. There's no indication in this record that any plaintiff would have arranged an earlier revision surgery or filed an earlier complaint had they known what they say Biomet should have told the world. Without evidence of reliance, no reasonable jury could find that Biomet engaged in fraudulent conduct so as to toll statute of repose. Because the plaintiffs have the burden of proving that the statute of repose does not bar the claim, Robinso ...


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