United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
JON E.
DEGUILIO JUDGE
Karl
Marozsan had his hip replaced by a prosthetic orthopedic
implant manufactured by the defendants in this case. He
alleges that the implant was defective, causing him to
experience pain and weakness and to have to undergo another
replacement surgery, so he filed this suit. The defendants
moved to dismiss the complaint, arguing that the claims are
barred by the statute of limitations, are not adequately
pled, and fail as a matter of law. The Court grants the
motion in part and denies it in part.
I.
FACTUAL BACKGROUND
On
September 19, 2013, Karl Marozsan underwent hip replacement
surgery. That surgery entails replacing the hip joint with a
prosthetic orthopedic device. Part of the device attaches to
the patient's femur, and a ball at the top of that part
fits into a shell that then fits into the patient's hip
socket. The femoral head forms the hip joint when it is
placed inside the shell. The implant that Mr. Marozsan
received was designed, manufactured, and marketed by
defendants DJ Orthopedics, LLC and Encore Medical, LP. Mr.
Marozsan alleges that the implant's design resulted in
metal-on-metal contact between its parts. That contact can
cause metal debris to leach into the hip compartment. After
the surgery, Mr. Marozsan began experiencing pain, weakness,
and a lack of mobility. He also had high concentrations of
metal in his blood. Eventually, he had to undergo another
surgery to replace the hip implant.
Mr.
Marozsan thus filed this suit in May 2018, alleging that he
was injured by the defective product, that the defendants did
not adequately warn of its risks, and that they
misrepresented that it was safe. Mr. Marozsan asserts claims
under state law, and the Court has diversity jurisdiction.
The defendants appeared and filed a motion to dismiss, which
has been fully briefed.
II.
STANDARD OF REVIEW
In
reviewing a motion to dismiss for failure to state a claim
upon which relief can be granted under Federal Rule of Civil
Procedure 12(b)(6), the Court construes the complaint in the
light most favorable to the plaintiff, accepts the factual
allegations as true, and draws all reasonable inferences in
the plaintiff's favor. Reynolds v. CB Sports Bar,
Inc., 623 F.3d 1143, 1146 (7th Cir. 2010). A complaint
must contain only a “short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). That statement must contain sufficient
factual matter, accepted as true, to state a claim for relief
that is plausible on its face, Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009), and raise a right to relief above
the speculative level. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). However, a plaintiff's claim
need only be plausible, not probable. Indep. Trust Corp.
v. Stewart Info. Servs. Corp., 665 F.3d 930,
935 (7th Cir. 2012). Evaluating whether a plaintiff's
claim is sufficiently plausible to survive a motion to
dismiss is “‘a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.'” McCauley v. City
of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) (quoting
Iqbal, 556 U.S. at 678).
III.
DISCUSSION
Mr.
Marozsan asserts a claim under the Indiana Product Liability
Act, plus common law claims for fraud and fraudulent
concealment. The defendants moved to dismiss all three
counts.
A.
Indiana Product Liability Act Claim
The
defendants offer multiple arguments in support of their
motion to dismiss Count 1, which asserts a claim under the
Indiana Product Liability Act. They first argue that the
claim is barred by the two-year statute of limitations. The
statute of limitations is an affirmative defense, and
“‘complaints need not anticipate and attempt to
plead around defenses.'” Chicago Bldg. Design,
P.C. v. Mongolian House, Inc., 770 F.3d 610, 613 (7th
Cir. 2014) (quoting United States v. N. Trust Co.,
372 F.3d 886, 888 (7th Cir. 2004)). Accordingly, “a
motion to dismiss based on failure to comply with the statute
of limitations should be granted only where ‘the
allegations of the complaint itself set forth everything
necessary to satisfy the affirmative defense.'”
Id. (quoting United States v. Lewis, 411
F.3d 838, 842 (7th Cir. 2005)). In other words, dismissal on
this ground at the pleading stage is only appropriate when
the plaintiff “affirmatively plead[s] himself out of
court.” Id.
Mr.
Marozsan has not pled himself out of court, as the complaint
does not (and need not) specify when his claim accrued. The
complaint alleges that Mr. Marozsan underwent surgery on
September 19, 2013, well over two years before he filed suit,
but it does not allege when Mr. Marozsan became injured as a
result. In arguing to the contrary, the defendants rely
entirely on the following allegation in the complaint:
“Since Plaintiff's surgical implant of the
Encore/DJO Surgical hip, plaintiff began to suffer and
continues to suffer symptoms including but not limited to
pain, weakness, difficulty with daily activities.” [DE
7 ¶ 25]. The defendants interpret this as meaning that
Mr. Marozsan began experiencing those symptoms
immediately after his surgery, in which case the
claim would have accrued at that time. But the allegation
says “since” the surgery, which can simply mean
any time after the surgery. See
https://www.merriam-webster.com/dictionary/since (last
visited Feb. 13, 2019) (defining “since” as
meaning “after a time in the past:
subsequently”). Mr. Marozsan confirms in his response
brief that that was the meaning he intended. At worst, the
phrasing is ambiguous, but that ambiguity means that Mr.
Marozsan has not pled himself out of court, so the Court
denies the motion to dismiss on that ground.
The
defendants next argue that two of Mr. Marozsan's three
theories under the Product Liability Act fail as a matter of
law. The Act provides three general theories of liability:
manufacturing defect, design defect, and failure to warn.
Weigle v. SPX Corp., 729 F.3d 724, 731 (7th Cir.
2013). Defendants are strictly liable for manufacturing
defects, but “[i]nadequate-warning and defective-design
claims both sound in negligence.” Id. The
defendants note that Mr. Marozsan's complaint alleges
that they are “strictly liable” for the defective
products, which they interpret as meaning that Mr. Marozsan
wishes to hold them strictly liable under all three theories.
Because strict liability does not apply to design defects and
failures to warn, the defendants move to dismiss the claim in
those respects.
That is
not a basis for dismissing this claim, though. First,
complaints need not plead legal theories. Chessie
Logistics Co. v. Krinos Holdings, Inc., 867 F.3d 852,
859 (7th Cir. 2017). Thus, “specifying an incorrect
theory is not fatal.” Bartholet v. Reishauer A.G.
(Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992). And
second, the complaint acknowledges that those theories are
governed by a negligence standard, as it alleges that the
defendants “owed [Mr. Marozsan] a duty of reasonable
care when designing and marketing (instructions and/or
warnings) the Encore/DJO Surgical hip.” [DE 7 ¶
37; see also ΒΆ 44 ...