Marozsan v. DJ Orthopedics, LLC

          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 ¶ 44 ...