United States District Court, N.D. Indiana, South Bend Division
IN RE BIOMET M2a MAGNUM HIP IMPLANT PRODUCTS LIABILITY LITIGATION (MDL 2391)
Biomet et al. This Document Relates to Wohlleber Clifford
Biomet et al. Chapman
Biomet et al. Hughes
Biomet et al. Little
Biomet et al. McGinnis
Biomet et al. Wise
Biomet et al.
OPINION AND ORDER
L. Miller, Jr. Judge
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repealed statute of repose, N.C. Gen.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. §
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
2009, the North Carolina General Assembly amended the
applicable statute of repose from a six-year term to a
twelve-year term. 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. Biomet contends
that each of the claims was extinguished six years from the
date of implantation. In the seventh case,  suit was filed
more than twelve years after the date of implantation, making
it untimely unless the “disease exception”
discussed later applies.
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
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.
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.
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
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).
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.
plaintiffs' equitable estoppel argument focuses on what
they contend Biomet should have revealed about its products,
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 ...