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Winkler v. Boston Scientific Corp.

United States District Court, E.D. Kentucky, Central Division, Lexington

March 26, 2018

NOLAN WINKLER, Plaintiff,
v.
BOSTON SCIENTIFIC CORPORATION, Defendant.

          OPINION AND ORDER

          KAREN K. CALDWELL, CHIEF JUDGE.

         This matter is before the Court on Defendant Boston Scientific Corporation's motion to dismiss for failure to state a claim upon which relief can be granted. (DE 25). For the reasons stated below, Plaintiff's personal injury and breach of warranty claims are dismissed as time barred and Plaintiff's misrepresentation claims are dismissed for failing to meet the heightened pleading standards required by Federal Rules of Civil Procedure Rule 9(b).

         I. Background

         On July 17, 2007, Plaintiff Nolan Winkler had surgery at Baptist Health Richmond to treat deep venous thrombosis (“DVT”). (Compl. ¶ 20). During the procedure, Dr. Hameed Koury implanted a Boston Scientific Med-Tech Stainless Steel Greenfield Vena Cava Filter (Greenfield IVC Filter) at the L2 level of Winkler's vena cava vein. The surgery was performed in accordance with Boston Scientific instructions and procedures and occurred without complications. (Compl. ¶ 21-22). Winkler received post-operative treatment from Dr. Olubunmi M. Adegboyega, who observed on July 21, 2007 that the Greenfield IVC Filter had migrated to the L3-4 position of Winkler's vena cava vein. (Compl. ¶ 23). On July 29, 2007, Winkler was treated by Dr. Dough Smith, who diagnosed him with extensive lower-extremity DVT and observed that his condition was not improved by implantation of the Greenfield IVC Filter. (Compl. ¶ 24). Over the next three years, Winkler also experienced inflammation around the Filter and was treated for leg swelling caused by DVT. (Compl. ¶ 25-26).

         Winkler had a second operation on March 21, 2016 to revise the Greenfield IVC Filter. The complex surgery was prompted by clots burdening the common iliac vein, which cut off blood flow to the inferior vena cava (“IVC”) below the renal vein and which doctors considered life threatening. (Compl. ¶ 27). The next day, Winkler had surgery a third time. This procedure was an angioplasty with subsequent stenting of the IVC and common iliac veins, to again revise the filter. (Compl. ¶ 28). Subsequently, Winkler was diagnosed with chronic microvascular ischemia, a condition that an IVC filter is intended to prevent, and he experienced worsening of his right pleural effusion and right basilar airspace disease. (Compl. ¶ 29-30). Winkler's Greenfield IVC Filter has been implanted for ten years, despite recent FDA warnings that physicians remove filters within two months of implantation or when issues of DVT and pulmonary embolism (“PE”) have diminished. (Compl. ¶ 32).

         Plaintiff filed this products liability action in the Court of Common Pleas for Philadelphia County, Pennsylvania on April 4, 2017, alleging negligence, strict liability, breach of express and implied warranties, and fraudulent and negligent misrepresentation. The case was removed to the United States District Court for the Eastern District of Pennsylvania pursuant to 28 U.S.C. § 1441 by Defendant Boston Scientific Corporation on May 4, 2017. The parties stipulated that the proper venue for this case was the Eastern District of Kentucky and the case was transferred to this Court on June 21, 2017. (DE 7). Defendant has filed a motion to dismiss for failure to state a claim upon which relief can be granted. (DE 25). Plaintiff has filed a response in opposition, (DE 26), and Defendant has filed a reply, (DE 27). This matter is now ripe for consideration.

         II. Standard of Review

         When deciding a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, this Court “must (1) view the complaint in the light most favorable to the plaintiff and (2) take all well-pleaded factual allegations as true.” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009)). Federal pleading standards require only “a short and plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed.R.Civ.P. 8(a)(2). A complaint does not require “detailed factual allegations, ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), but “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Merely offering “labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Id. (internal quotation marks, citations, and alterations omitted) (quoting Twombly, 550 U.S. at 555, 557).

         To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (emphasis added) (quoting Twombly, 550 U.S. at 570). A claim is facially plausible if “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The plausibility standard identified in Twombly and Iqbal is not a “probability requirement but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). If a plaintiff merely pleads facts consistent with liability, the complaint fails to state an entitlement to relief and will not survive a motion to dismiss. Id. (citing Twombly, 550 U.S. at 557).

         III. Analysis

         1. Personal injury claims

         Boston Scientific argues that Winkler's personal injury claims are time-barred. When sitting in diversity, federal courts “must apply the law of the forum state in determining statute of limitations questions.” Swanson v. Wilson, 423 Fed. App'x 587, 592 (6th Cir. 2011). Kentucky law therefore applies. Kentucky imposes a one-year limitations period on personal injury claims. Ky. Rev. Stat. § 413.140(a)(1). That period of limitations applies to both negligence and strict liability actions involving personal injury. See Michaels v. Baxter Healthcare Corp, 289 F.3d 402, 406 (6th Cir. 2002) (upholding summary judgment of strict liability and negligence claims brought outside Kentucky's one-year statute of limitations). Under Kentucky's “discovery rule, a cause of action will not accrue until the plaintiff discovers (or in the exercise of reasonable diligence should have discovered) not only that he has been injured, but also that this injury may have been caused by the defendant's conduct.” Fluke Corp. v. LeMaster, 306 S.W.3d 55, 60 (Ky. 2010). The discovery rule applies in cases where “the fact of injury or offending instrumentality is not immediately evident or discoverable with the exercise of reasonable diligence, such as in cases of medical malpractice or latent injuries or illnesses.” Id.

         Winkler's negligence and strict liability claims (Counts I-III) are personal injury claims. This action was commenced on April 6, 2017, the date when the Philadelphia Court of Commons pleas issued a summons for Boston Scientific. Ky. Rev. Stat. § 413.250. Even applying Kentucky's discovery rule, Winkler's personal injury claims are time-barred. As set forth in his complaint, Winkler was implanted with a Greenfield IVC Filter on July 17, 2007. (Compl. ¶ 20). Doctors observed migration of the filter on July 21, 2007, (Compl. ¶ 21), and that his condition had not improved on July 29, 2007, (Compl. ¶ 24). CT scans in 2008 and 2010 revealed inflammation around the Greenfield IVC Filter. (Compl. ¶ 25). Winkler was treated for swelling caused by DVT on June 10, 2010. (Compl. ¶ 26). And Winkler underwent additional surgeries to revise the filter, dealing with clots and lack of blood flow to his renal vein allegedly caused by the filter, on March 21 and 22, 2016. (Compl. ¶ 27, 28). Winkler claims that he suffers “possible risk of migration of the filter to the other parts of the vena cava, heart or other organs, DVT, blood clots, fracture or breakage of the filter and other complications.” (Compl. ¶ 33). Winkler knew by 2007 that his Greenfield IVC Filter had migrated. Winkler was aware by 2010 that he continued to suffer complications from DVT. By March 2016, when Winkler underwent his two revision surgeries, he knew, based on Dr. Kumar's diagnosis, that his “inferior vena cava and common iliac veins . . . had been occluded as a result of the Greenfield IVC Filter blockage.” (Compl. ¶ 28). Thus, at the very latest, Winkler's personal injury claims accrued on March 22, 2016, and therefore his personal injury claims are time-barred.

         In his response to the motion to dismiss, Winkler argues that he did not know his injuries were caused by the malfunctioned Greenfield IVC Filter until April 10, 2016-a date not mentioned in his complaint. This arguments is unavailing. As discussed above, Winkler alleged in his complaint that Dr. Kumar diagnosed him on March 22, 2016 with occlusion resulting from Greenfield IVC Filter blockage. Winkler cannot plausibly claim that, as of that date, he did not know, or ...


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