2 UNITED STATES DISTRICT COURT 3
DISTRICT OF NEVADA 4
* * * 5
6 DEAN CECCONI, individually, Case No. 3:19-cv-00599-MMD-CLB
7 Plaintiff, ORDER v. 8 BENEFICIAL SOLUTIONS, LLC and 9 RUSSELL B. ALTMAN.,
10 Defendants.
11 12 I. SUMMARY 13 This action concerns personal injuries Plaintiff Dean Cecconi allegedly suffered as 14 a result of taking purported dietary supplement NutraSilver®. Before the Court are 15 Defendants Beneficial Solutions, LLC and Russel B. Altman’s motion to dismiss (“MTD”) 16 (ECF No. 12) and Plaintiff’s motion to certify (ECF No. 25). The Court will grant the MTD 17 based on its ruling in Azefor v. DePuy Orthopaedics, Inc., No. 2:15-cv-00192-MMD-GWF, 18 ECF No. 32 (D. Nev. Mar. 3, 2016) and deny the motion to certify as moot.1 19 II. BACKGROUND 20 The following facts are taken from Plaintiff’s complaint (“Complaint”) (ECF No. 1), 21 unless otherwise provided. 22 Plaintiff sustained serious injuries as a result of ingesting a colloidal silver 23 preparation known as NutraSilver®. NutraSilver® is sold over the counter as a dietary 24 supplement. It is designed, manufactured, labeled, marketed and distributed by 25 Defendants. As a result of ingesting NutraSilver® Plaintiff has suffered permanent 26 discoloration of his skin—a grey-bluish tint—and has been diagnosed with Argyria— 27 linked to the ingestion of colloidal silver preparations. As a result of his condition, Plaintiff 28 1In addition to the two motions, the Court has considered the relevant responses 2 ability to do his job as an automobile salesman has also been negatively affected. Due to 3 the nature of the silver neurotoxicity caused by NutraSilver®—and the lack of any known 4 cure—Plaintiff is also at risk of neurological injuries associated with concentrations of 5 colloidal silver preparations. 6 On September 27, 2019, Plaintiff filed his Complaint asserting a single claim for 7 strict products liability based on theories of defective design, manufacturing and warnings. 8 Plaintiff alleges that his injuries were caused by these defects. In response, Defendants 9 moved to dismiss, arguing that Nevada’s two-year statute of limitations under NRS § 10 11.190(4)(e) bars Plaintiff’s claim (ECF No. 12). 11 III. LEGAL STANDARD 12 A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which 13 relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pleaded complaint must provide 14 “a short and plain statement of the claim showing that the pleader is entitled to relief.” 15 Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive 16 a motion to dismiss, a complaint must contain sufficient factual matter to “state a claim to 17 relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal 18 citation omitted). 19 In Iqbal, the Supreme Court clarified the two-step approach district courts are to 20 apply when considering motions to dismiss. First, a district court must accept as true all 21 well-pleaded factual allegations in the complaint; however, legal conclusions are not 22 entitled to the assumption of truth. Id. at 678–79. Mere recitals of the elements of a cause 23 of action, supported only by conclusory statements, do not suffice. Id. at 678. Second, a 24 district court must consider whether the factual allegations in the complaint allege a 25 plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff’s 26 complaint alleges facts that allow a court to draw a reasonable inference that the 27 defendant is liable for the alleged misconduct. Id. at 678. Where the complaint does not 28 permit the court to infer more than the mere possibility of misconduct, the complaint has 2 quotation marks omitted). When the claims in a complaint have not crossed the line from 3 conceivable to plausible, the complaint must be dismissed. Twombly, 550 U.S. at 570. A 4 complaint must contain either direct or inferential allegations concerning “all the material 5 elements necessary to sustain recovery under some viable legal theory.” Id. at 562 6 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1989) 7 (emphasis in original)). 8 IV. DISCUSSION 9 In response to the MTD, Plaintiff acknowledges that his claim is time-barred if the 10 Court applies the two-year statute of limitations under NRS § 11.190(4)(e), but argues 11 that the Court should apply the four-year default statute of limitations provided in NRS § 12 11.220. (See generally ECF No. 20.) Plaintiff alternatively moves for the Court to certify 13 a question to the Nevada Supreme Court for that court to determine which of the two 14 statutes should apply. (Id. at 6; ECF No. 21.) The Court finds no need for the latter, 15 because it has fully grappled with the relevant considerations in Azefor, No. 2:15-cv- 16 00192-MMD-GWF, ECF No. 32 at 3–6. 17 In Azefor, the Court noted that “Nevada law prescribes different commencement 18 periods depending on the nature of the action involved.” Id. at 3 (citing NRS § 11.190). 19 Relevantly, “NRS § 11.190(4)(e) provides for a two-year statute of limitations on ‘an action 20 to recover damages for injuries to a person . . . caused by the wrongful act or neglect of 21 another.’” Id. at 3. On the other hand, “NRS § 11.220 establishes a four-year 22 commencement period in an action for relief that is not otherwise addressed in other 23 sections of the statute.” Id. at 3–4. The Court concluded that a determination as to the 24 controlling statute of limitations depended on ‘[t]he gravamen of [the] action’—looking to 25 ‘the real purpose complaint . . ..’ Id. at 4 (quoting Blotzke v. The Christmas Tree, Inc., 499 26 P.2d 647, 647 (Nev. 1972) and Hartford Ins. Grp. v. Statewide Appliances, Inc., 484 P.2d 27 569, 571 (Nev. 1971)). The Court ultimately found that the essence of the Azefor plaintiff’s 28 complaint was a claim for physical injury and therefore NRS § 11.190(4)(e) 2 year statute of limitations for ‘an action to recover damages for injuries to a person.’ 3 Because Plaintiff’s claims are to recover damages for physical injury to himself, Plaintiff’s 4 claims are subject to this shorter two year limitations period.”); see also Coryell v. United 5 States, No. 2:18-cv-00593-GMN-NJK, 2019 WL 720972, at *3 (D. Nev. Feb. 20, 2019) 6 (citations omitted) (“[C]ourts in the District of Nevada have closely analyzed this issue and 7 found that the two-year statute of limitations applies to all personal injury actions, 8 including strict liability actions.”). 9 Here, there is no dispute that Plaintiff alleges a personal injury claim on the face 10 of the Complaint. (See ECF No.
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2 UNITED STATES DISTRICT COURT 3
DISTRICT OF NEVADA 4
* * * 5
6 DEAN CECCONI, individually, Case No. 3:19-cv-00599-MMD-CLB
7 Plaintiff, ORDER v. 8 BENEFICIAL SOLUTIONS, LLC and 9 RUSSELL B. ALTMAN.,
10 Defendants.
11 12 I. SUMMARY 13 This action concerns personal injuries Plaintiff Dean Cecconi allegedly suffered as 14 a result of taking purported dietary supplement NutraSilver®. Before the Court are 15 Defendants Beneficial Solutions, LLC and Russel B. Altman’s motion to dismiss (“MTD”) 16 (ECF No. 12) and Plaintiff’s motion to certify (ECF No. 25). The Court will grant the MTD 17 based on its ruling in Azefor v. DePuy Orthopaedics, Inc., No. 2:15-cv-00192-MMD-GWF, 18 ECF No. 32 (D. Nev. Mar. 3, 2016) and deny the motion to certify as moot.1 19 II. BACKGROUND 20 The following facts are taken from Plaintiff’s complaint (“Complaint”) (ECF No. 1), 21 unless otherwise provided. 22 Plaintiff sustained serious injuries as a result of ingesting a colloidal silver 23 preparation known as NutraSilver®. NutraSilver® is sold over the counter as a dietary 24 supplement. It is designed, manufactured, labeled, marketed and distributed by 25 Defendants. As a result of ingesting NutraSilver® Plaintiff has suffered permanent 26 discoloration of his skin—a grey-bluish tint—and has been diagnosed with Argyria— 27 linked to the ingestion of colloidal silver preparations. As a result of his condition, Plaintiff 28 1In addition to the two motions, the Court has considered the relevant responses 2 ability to do his job as an automobile salesman has also been negatively affected. Due to 3 the nature of the silver neurotoxicity caused by NutraSilver®—and the lack of any known 4 cure—Plaintiff is also at risk of neurological injuries associated with concentrations of 5 colloidal silver preparations. 6 On September 27, 2019, Plaintiff filed his Complaint asserting a single claim for 7 strict products liability based on theories of defective design, manufacturing and warnings. 8 Plaintiff alleges that his injuries were caused by these defects. In response, Defendants 9 moved to dismiss, arguing that Nevada’s two-year statute of limitations under NRS § 10 11.190(4)(e) bars Plaintiff’s claim (ECF No. 12). 11 III. LEGAL STANDARD 12 A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which 13 relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pleaded complaint must provide 14 “a short and plain statement of the claim showing that the pleader is entitled to relief.” 15 Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive 16 a motion to dismiss, a complaint must contain sufficient factual matter to “state a claim to 17 relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal 18 citation omitted). 19 In Iqbal, the Supreme Court clarified the two-step approach district courts are to 20 apply when considering motions to dismiss. First, a district court must accept as true all 21 well-pleaded factual allegations in the complaint; however, legal conclusions are not 22 entitled to the assumption of truth. Id. at 678–79. Mere recitals of the elements of a cause 23 of action, supported only by conclusory statements, do not suffice. Id. at 678. Second, a 24 district court must consider whether the factual allegations in the complaint allege a 25 plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff’s 26 complaint alleges facts that allow a court to draw a reasonable inference that the 27 defendant is liable for the alleged misconduct. Id. at 678. Where the complaint does not 28 permit the court to infer more than the mere possibility of misconduct, the complaint has 2 quotation marks omitted). When the claims in a complaint have not crossed the line from 3 conceivable to plausible, the complaint must be dismissed. Twombly, 550 U.S. at 570. A 4 complaint must contain either direct or inferential allegations concerning “all the material 5 elements necessary to sustain recovery under some viable legal theory.” Id. at 562 6 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1989) 7 (emphasis in original)). 8 IV. DISCUSSION 9 In response to the MTD, Plaintiff acknowledges that his claim is time-barred if the 10 Court applies the two-year statute of limitations under NRS § 11.190(4)(e), but argues 11 that the Court should apply the four-year default statute of limitations provided in NRS § 12 11.220. (See generally ECF No. 20.) Plaintiff alternatively moves for the Court to certify 13 a question to the Nevada Supreme Court for that court to determine which of the two 14 statutes should apply. (Id. at 6; ECF No. 21.) The Court finds no need for the latter, 15 because it has fully grappled with the relevant considerations in Azefor, No. 2:15-cv- 16 00192-MMD-GWF, ECF No. 32 at 3–6. 17 In Azefor, the Court noted that “Nevada law prescribes different commencement 18 periods depending on the nature of the action involved.” Id. at 3 (citing NRS § 11.190). 19 Relevantly, “NRS § 11.190(4)(e) provides for a two-year statute of limitations on ‘an action 20 to recover damages for injuries to a person . . . caused by the wrongful act or neglect of 21 another.’” Id. at 3. On the other hand, “NRS § 11.220 establishes a four-year 22 commencement period in an action for relief that is not otherwise addressed in other 23 sections of the statute.” Id. at 3–4. The Court concluded that a determination as to the 24 controlling statute of limitations depended on ‘[t]he gravamen of [the] action’—looking to 25 ‘the real purpose complaint . . ..’ Id. at 4 (quoting Blotzke v. The Christmas Tree, Inc., 499 26 P.2d 647, 647 (Nev. 1972) and Hartford Ins. Grp. v. Statewide Appliances, Inc., 484 P.2d 27 569, 571 (Nev. 1971)). The Court ultimately found that the essence of the Azefor plaintiff’s 28 complaint was a claim for physical injury and therefore NRS § 11.190(4)(e) 2 year statute of limitations for ‘an action to recover damages for injuries to a person.’ 3 Because Plaintiff’s claims are to recover damages for physical injury to himself, Plaintiff’s 4 claims are subject to this shorter two year limitations period.”); see also Coryell v. United 5 States, No. 2:18-cv-00593-GMN-NJK, 2019 WL 720972, at *3 (D. Nev. Feb. 20, 2019) 6 (citations omitted) (“[C]ourts in the District of Nevada have closely analyzed this issue and 7 found that the two-year statute of limitations applies to all personal injury actions, 8 including strict liability actions.”). 9 Here, there is no dispute that Plaintiff alleges a personal injury claim on the face 10 of the Complaint. (See ECF No. 1 (“This is a personal injury action arising out of serious 11 injuries sustained by Plaintiff.”).) The Complaint also makes it clear that Plaintiff was 12 aware of injury related to his ingestion of NutraSilver® no later than February 2016. (Id. 13 at 4 (“From December 2015 to February . . . 2016, Plaintiff sought advice of medical 14 professionals who diagnosed him with Argyria. This condition has been causally 15 connected to the ingestion of colloidal silver preparations similar to NutraSilver®.”); see 16 also ECF No. 20 at 2 (“Plaintiff does not dispute that he was aware of the connection 17 between his injuries and his ingestion of NutraSilver prior to September 27, 2017.”).) Yet 18 Plaintiff brought this case over three years later, in September 2019. 19 Further, Plaintiff provides no convincing reason for the Court to deviate from its 20 conclusion in Azefor regarding the applicable limitations period. Plaintiff relies only on the 21 unpublished Nevada Supreme Court decision in Crabb v. Harmon Enters., No. 60634, 22 2014 WL 549834 (Nev. Feb. 10, 2014) and a products liability case in this district— Fisher 23 v. Prof’l Compounding Ctrs. of America, Inc., 311 F. Supp. 2d 1008, 1017 (D. Nev. 24 2004)—that applied the four-year statute of limitations. (See id. at 3–6.) The latter was 25 decided several years before the Azefor decision. In any event, in Azefor this Court found 26 the Crabb decision factually distinguishable—which is also true in this case—and the 27 Fisher decision unpersuasive, see 2:15-cv-00192-MMD-GWF, ECF No. 32 at 5 & n.4. 28 Therefore, the Court will not discuss them further here. 1 In sum, the Court concludes that Plaintiff's single claim is time-barred because the 2 || two-year statute of limitations under NRS § 11.190(4)(e) applies to this action. In light of 3 || this conclusion, Plaintiff's motion to certify is moot. 4|| V. CONCLUSION 5 The Court notes that the parties made several arguments and cited to several 6 || cases not discussed above. The Court has reviewed these arguments and cases and 7 || determines that they do not warrant discussion as they do not affect the outcome of the 8 || issues before the Court. 9 It is therefore ordered that Defendants’ motion to dismiss (ECF No. 12) is granted. 10 It is further ordered that Plaintiff's motion to certify (ECF No. 21) is denied as moot. 11 The Clerk of the Court is directed to enter judgment accordingly and close this 12 || case. 13 DATED THIS day of March 2020.
15 MIRANDA M. DU 16 CHIEF UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28