Nowell v. Medtronic Inc.
Opinion
James O. Browning, UNITED STATES DISTRICT JUDGE
THIS MATTER comes before the Court on the Defendants' Motion to Dismiss, filed March 23, 2018 (Doc. 27)("MTD"). The Court held a hearing on August 10, 2018. The primary issues are: (i) whether the applicable statutes of limitations bar Plaintiff Janice Nowell's claims against Defendants Medtronic Inc., Covidien PLC, Covidien LP, and Medtronic PLC for negligence, strict liability -- design defect, manufacturing defect, and failure-to-warn -- breach of express warranty, and breach of implied warranty; and (ii) whether Nowell has alleged with specificity how the Defendants' product is defective and how that defect caused her injuries. The Court will grant the MTD. Nowell's warranty claims are untimely, because Nowell alleges that her physician used the Defendants' defective product to repair her hernia1 on October 27, 2010, *1175but Nowell did not file her original Complaint for Damages for Personal Injury Resulting From Negligence, Strict Liability and Breach of Warranties (Doc. 1)("Complaint"), until October 5, 2017, almost three years after the expiration of the four-year statute of limitations governing express and implied warranty claims. See
FACTUAL BACKGROUND
The Court takes the facts from the Amended Complaint. As this matter comes before the Court on a motion to dismiss pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court assumes that all facts in the Complaint are true, see Bell Atl. Corp. v. Twombly,
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James O. Browning, UNITED STATES DISTRICT JUDGE
THIS MATTER comes before the Court on the Defendants' Motion to Dismiss, filed March 23, 2018 (Doc. 27)("MTD"). The Court held a hearing on August 10, 2018. The primary issues are: (i) whether the applicable statutes of limitations bar Plaintiff Janice Nowell's claims against Defendants Medtronic Inc., Covidien PLC, Covidien LP, and Medtronic PLC for negligence, strict liability -- design defect, manufacturing defect, and failure-to-warn -- breach of express warranty, and breach of implied warranty; and (ii) whether Nowell has alleged with specificity how the Defendants' product is defective and how that defect caused her injuries. The Court will grant the MTD. Nowell's warranty claims are untimely, because Nowell alleges that her physician used the Defendants' defective product to repair her hernia1 on October 27, 2010, *1175but Nowell did not file her original Complaint for Damages for Personal Injury Resulting From Negligence, Strict Liability and Breach of Warranties (Doc. 1)("Complaint"), until October 5, 2017, almost three years after the expiration of the four-year statute of limitations governing express and implied warranty claims. See
FACTUAL BACKGROUND
The Court takes the facts from the Amended Complaint. As this matter comes before the Court on a motion to dismiss pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court assumes that all facts in the Complaint are true, see Bell Atl. Corp. v. Twombly,
According to the Amended Complaint, on October 27, 2010, Nowell had an operation with Dr. William Pollard to repair a fifteen centimeter "superiorperiumbilical hernia." Amended Complaint ¶ 38, at 8. At the time, Dr. Pollard implanted a twenty centimeter "Parietex Mesh Composite"2 to repair Nowell's hernia. Amended Complaint ¶ 38, at 8. Subsequently, the mesh began to "pull away from the actual edges," and on April 27, 2011, Nowell had a second surgery wherein Dr. Pollard used additional sutures to reinforce the existing Parietex mesh. Amended Complaint ¶ 38, at 8. Dr. Pollard did not inform Nowell of any problems with the mesh and, after the surgery, noted that Nowell "was doing well." Amended Complaint ¶ 38, at 8. Between April 27, 2011, and March 1, 2014, Nowell "began experiencing symptoms including but not limited to exhaustion and pain in the area of the mesh." Amended Complaint ¶ 38, at 8. During this period, "Nowell was skeptical as to whether the mesh was causing these problems"; however, Dr. Pollard did not advise her that the mesh was causing these issues. Amended Complaint ¶ 38, at 8. On March 1, 2014, Nowell underwent a CT scan.3 See Amended Complaint ¶ 38, at 8. The physicians who performed Nowell's CT scan neither concluded nor advised Nowell that the mesh was causing her issues. See Amended Complaint ¶ 38, at 8. The physicians *1177were unable to diagnose the symptoms' cause, because Nowell "apparently had cysts in the area associated with the mesh." Amended Complaint ¶ 38, at 8. On October 6, 2014, Nowell underwent another CT scan, which "revealed a large fluid collection associated with the mesh" and a corresponding staph infection.4 Amended Complaint ¶ 38, at 8. On October 8, 2014, "Dr. Powell"5 informed Nowell that "there was no choice but to remove the Parietex mesh and replace it with a biological mesh," which he "memorialized ... in his treatment notes." Amended Complaint ¶ 38, at 8. Moreover, during this discussion, Dr. Pollard told Nowell "that there was a problem with the mesh itself." Amended Complaint ¶ 38, at 8. "On or about October 20, 2014," Dr. Pollard removed the "infected and disintegrated (unincorporated)" Parietex mesh from Nowell's abdomen. Amended Complaint ¶ 38, at 8.
PROCEDURAL BACKGROUND
On October 5, 2017, Nowell filed suit in the United States District Court for the District of New Mexico, alleging six causes of action: (i) negligence; (ii) strict liability -- design defect; (iii) strict liability -- manufacturing defect; (iv) strict liability -- failure-to-warn; (v) breach of express warranty; and (vi) breach of implied warranty. See Complaint ¶¶ 103-155, at 18-32, filed October 5, 2017 (Doc. 1)("Complaint"). Nowell subsequently amended the Complaint on October 6, 2017, see First Amended Complaint for Damages for Personal Injury Resulting from Negligence, Strict Liability and Breach of Warranties, filed October 6, 2017 (Doc. 4), and again on January 19, 2018, but alleges the same claims, see Amended Complaint ¶¶ 103-155, at 22-36.
Nowell contends that the Defendants were negligent in failing to use reasonable care and breached their duty to Nowell "in designing, manufacturing, marketing, labeling, packaging and selling" the mesh. Amended Complaint ¶ 104, at 22. Specifically, Nowell contends that the mesh's design "did not provide for sufficient resiliency which caused the Product to disintegrate in Plaintiff," and that the mesh's manufacturing process caused "an unreasonable risk of harm to women in whom the Product was implanted, including the Plaintiff." Amended Complaint ¶ 105, at 23. Nowell further alleges that the Defendants did not use reasonable care in the mesh's testing and inspection, in instructing physicians in how to use the mesh, and in evaluating the mesh's safety "to determine the nature, magnitude, and frequency of serious, life threatening complications that were known or knowable." Amended Complaint ¶ 105, at 23. Nowell further alleges that the Defendants' mesh is unreasonably dangerous and defective, because the mesh material causes adverse reactions and injuries; the *1178mesh design facilitated harmful bacteria growth, which caused "immune reactions and subsequent tissue breakdown and adverse reactions and injuries;" and the mesh has a propensity "to disintegrate inside the body," "to deform when subject to prolonged tension inside the body," to cause "adverse tissue reactions," and to create "a non-anatomic condition in the abdomen leading to chronic pain and functional disabilities when the mesh is implant[ed] according to the manufacturers instructions." Amended Complaint ¶ 106, at 23-24. Nowell adds that her "adverse tissue reactions ... are causally related to infection, as the materials used to construct the Product are foreign." Amended Complaint ¶ 106, at 24.
Nowell also alleges that the Defendants "negligently failed to warn" her and/or her healthcare providers about the mesh's "propensities to deform inside the body," about "degradation, fragmentation and/or creep," about "the rate and manner of mesh erosion or extrusion," and about the mesh's risks, including "chronic infections" and "recurrent, intractable abdominal pain and other pain." Amended Complaint ¶ 107, at 24-25. The Defendants' duty to warn, asserts Nowell, extends to the "need for corrective or revision surgery to adjust or remove the Product," and treatment with the mesh exposes patients to greater risk than treatment with "feasible available alternatives," including risks attendant to multiple, debilitating surgeries. Amended Complaint ¶ 108, at 25. Nowell asserts that the Defendants' negligence was the direct and proximate cause of her "significant mental and physical pain and suffering" to include "permanent injury, ... medical treatment and ... likely ... further medical treatment and procedures, ... financial or economic loss, ... obligations for medical services and expenses, lost income, and other damages." Amended Complaint ¶ 109, at 25.
Nowell contends that the Defendants are strictly liable for the mesh's alleged design defects, but for which, according to Nowell, she would not have sustained her injuries. See Amended Complaint ¶ 121, at 27. Specifically, Nowell contends that the meshes' "inelasticity," which causes "them to be improperly mated to the delicate and sensitive areas of the abdomen where they are implanted, and causes pain upon normal daily activities that involve movement in the abdomen," and that the mesh has "[b]iomechanical issues ... including, but not limited to, the propensity of the Product to disintegrate inside the body, that in turn cause surrounding tissue to be inflamed, become fibrotic, and contract, resulting in injury." Amended Complaint ¶ 121, at 28. Nowell reasserts the same alleged injuries described in paragraph 109. See Amended Complaint ¶ 122, at 28-29. Nowell adds that the mesh was "inherently defective," because it "was not sturdy enough to prevent disintegration and malformation," which resulted in the mesh "breaking apart while in the Plaintiff's body... in turn caus[ing] ... internal bleeding, infection and other serious injuries." Amended Complaint ¶ 123, at 29.
Nowell asserts that the Defendants are strictly liable for the mesh's alleged manufacturing defects, because the mesh "deviated materially from Defendants' design and manufacturing specifications in such a manner as to pose unreasonable risks of serious bodily harm to the Plaintiff." Amended Complaint ¶ 125, at 29. Nowell alleges that these manufacturing defects were the direct and proximate cause of her injuries. See Amended Complaint ¶ 126, at 29-31.
Nowell contends that the Defendants are strictly liable for not providing Nowell with "appropriate and necessary warnings" regarding the mesh's alleged defects.
*1179Amended Complaint ¶ 129, at 30. Nowell reasserts her arguments from paragraph 106, including that the Defendants had a duty to warn her about the mesh's propensity to disintegrate, fragment, degrade, and improperly "mate[ ] with the abdominal region," and to cause "chronic inflammation," "chronic infections," "scarring," and "recurrent, intractable pain." Amended Complaint ¶ 129, at 30-31. The Defendants' duty to warn, asserts Nowell, extends to the "need for corrective or revision surgery to adjust or remove the Product," and that treatment with the mesh exposes patients to greater risk than treatment with "feasible available alternatives" including risks attendant to multiple, debilitating surgeries. Amended Complaint ¶ 129, at 31. Nowell asserts that the Defendants' failure-to-warn was the direct and proximate cause of her "significant mental and physical pain and suffering" to include "permanent injury, ... medical treatment and ... likely ... further medical treatment and procedures, ... financial or economic loss, ... obligations for medical services and expenses, lost income, and other damages." Amended Complaint ¶ 130, at 31-32.
Nowell asserts that the Defendants are liable for breach of express warranty based on assurances made "to the general public, hospitals and health care professionals that the Product was safe and reasonably fit for its intended purposes." Amended Complaint ¶ 141, at 34. Nowell contends that her physician chose the Defendants' mesh based on such warranties and representations. See Amended Complaint ¶ 142, at 34. The Defendants are liable, according to Nowell, because the mesh "was unreasonably dangerous and defective ... and not as Defendant[s] had represented," Amended Complaint ¶ 144, at 34, which resulted in Nowell's physician implanting the mesh in Nowell's body, see Amended Complaint ¶ 145 at 34, and thereby causing the injuries detailed in paragraph 109 and repeated in paragraph 146, see Amended Complaint ¶ 146, at 34.
Nowell asserts that the Defendants are liable for breach of implied warranty, because the mesh was neither merchantable nor fit for its intended purpose. See Amended Complaint ¶ 155, at 35-36. Nowell asserts that such a breach is evident, because the mesh "disintegrated and mishappened [sic] inside the Plaintiff's body, causing injuries." Amended Complaint ¶ 155, at 35-36. Nowell reasserts her injuries that paragraph 106 describes. See Amended Complaint ¶ 157, at 36. Nowell adds that "someone with knowledge in the trade would reject the mesh for failure to meet the contract description." Amended Complaint ¶ 159, at 36. Accordingly, Nowell requests compensatory, punitive, and special damages, as well as attorney's fees and costs, and any other relief that the Court deem appropriate. See Amended Complaint at 37.
1. The MTD.
The Defendants argue in the MTD that, for two independent reasons, the Court should dismiss the Amended Complaint in its entirety pursuant to rule 12(b)(6) : first, applicable statutes of limitations bar each claim, and, second, the Amended Complaint relies on "labels and conclusions," and "a formulaic recitation of the elements of" each claim without any well-pled facts alleging a specific defect with the Defendants' product and how that defect purportedly caused Nowell's injuries. MTD at 1-2 (quoting Bell Atl. Corp. v. Twombly,
Although the Defendants concede that plaintiffs may bring express warranty claims beyond four years from purchase "if the warranty explicitly guarantees 'future performance,' " MTD at 7 (citing
The Defendants assert that Nowell's negligence and strict-liability claims are likewise untimely, because such claims are subject to a three-year statute of limitations. See MTD at 8 (citing
The Defendants insist that tolling, "[t]he only basis for excusing this late filing," is unavailable to Nowell, because her Amended Complaint does not allege "reasonable diligence" sufficient "to 'establish[ ] a factual basis for tolling' pursuant to the discovery rule." MTD at 9 (alteration in MTD)(quoting Andrew v. Schlumberger Tech. Corp.,
The Defendants next turn to their argument that Nowell's claims do not satisfy the pleading standard that Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal,
Beginning with Nowell's negligence claim, the Defendants contend that, assuming they owed Nowell a duty, the Amended Complaint does not plead facts that allege a breach of that duty or proximate causation as New Mexico law requires to support such claims. See MTD at 10 (citing Bellman v. NXP Semiconductors USA, Inc.,
Turning to Nowell's three strict liability claims -- design defect, manufacturing defect, and warning defect -- the Defendants assert that the Amended Complaint does not allege any specific defects that made the Defendants' mesh "unreasonably dangerous" and that caused Nowell's injuries. MTD at 12 (internal quotation marks omitted)(quoting Pac. Indem. Co. v. Therm-O-Disc, Inc.,
relies on a generalized list of alleged flaws that include: the mesh's material caused an "immune reaction"; the mesh was designed "to be inserted into and through an area of the body with high levels of bacteria that adhere to the mesh"; "[b]iomechanical issues ... including, but not limited to, the propensity of the Product to disintegrate"; and the mesh's "inelasticity."
MTD at 12-13 (quoting Amended Complaint ¶ 121, at 27-28). Such "vague and conclusory allegations," according to the Defendants, "could apply to all mesh products generally," and thus cannot support a plausible claim for relief against the Defendants and their particular mesh. MTD at 13. The Defendants ask, rhetorically: "What is the alleged immune reaction? What 'inelasticity' is supposedly present?" and assert that Nowell's failure to plead a specific defect "and/or to conclude that each and every hernia mesh on the market is defective" cannot satisfy the requisite pleading standard. MTD at 13.
The Defendants maintain that the Southern and Western Districts of New York recently dismissed claims based on similar allegations about the Defendants' Parietex Composite mesh, because, although the plaintiffs in both cases cite the mesh's design aspects, for example, " 'the hydrophilic coating' and 'small pores and collagen,' " they do not specifically allege how the design aspects were defective or how the purported defects caused the plaintiffs' specific injuries. MTD at 13 (quoting Rincon v. Covidien, No. 16-CV-10033,
Regarding the alleged alternative-design pleading requirement, the Defendants assert that the Amended Complaint merely alleges alternative surgical techniques to the use of hernia mesh but not alternative designs to the Defendants' mesh. See MTD at 14. Moreover, according to the Defendants, Nowell "seems to concede that a safer hernia mesh design is not possible," because, although Nowell states that "[s]afer and more effective alternatives to hernia mesh exist," she does not identify any such alternatives and instead *1184refers to the "Shouldice Repair, McVay Repair, Bassini Repair, and Desarda Repair" as alternatives, which the Defendants insist are surgical procedures that do not involve surgical mesh. MTD at 14 (quoting Amended Complaint ¶ 26, at 6). The Defendants insist that "a safer alternative design cannot be ... the decision not to use a product at all." MTD at 14 (citing S.F. v. Archer Daniels Midland Co.,
The Defendants dispute that the three scientific articles which Nowell cites in her Amended Complaint support her design defect claim or provide any support for her assertion "that the type of material that was used in Parietex mesh caused infection and disintegration which resulted in pain, exhaustion, and other injuries," or "that the type of surgical mesh as Parietex causes similar injuries as those sustained by [Nowell]." MTD at 15 (quoting Amended Complaint ¶ 39, at 9-10). The articles instead, according to the Defendants, merely highlight the underlying risks common to all hernia repair surgeries, risks that the Defendants contend are well-known in the medical community. See MTD at 15. In a footnote, the Defendants add that the first article -- "Central Failures of Monofilament Polyester Mesh Causing Hernia Recurrence: A Cautionary Note" -- examines "Parietex TCM," and its potential for tearing, which, the Defendants contend, is not causally connected to Nowell's main injury, that is, infection. MTD at 15 n.14 (citing C.C. Petro et. al., Central Failures of Lightweight Monofilament Polyester Mesh Causing Hernia Recurrence: A Cautionary Note, 19 Hernia 155 (2015) ). Moreover, according to the Defendants, the second article -- "Postoperative Mesh Infection -- Still a Concern in Laparoscopic Era" -- summarizes published findings and mentions the Defendants' Parietex mesh only once; it says nothing about Parietex Composite. MTD at 15 n.14 (citing Rajvilas Narkhede et. al., Postoperative Mesh Infection -- Still a Concern in Laparoscopic Era, 77 Indian J. Surg. 322 (2015) ). Finally, the Defendants aver, although the third article -- "Novel in Vitro Model for Assessing Susceptibility of Synthetic Hernia Repair Meshes to Staphylococcus aureus Infection" -- studies "Parietex Composite," it does not suggest a potential defect in the Defendants' mesh that could be causally linked to Nowell's injuries. See MTD at 15 n.14 (citing Ihab F. Halaweish et. al., Novel in Vitro Model for Assessing Susceptibility of Synthetic Hernia Repair Meshes to Staphylococcus aureus Infection Using Green Fluorescent Protein-labeled Bacteria and Modern Imaging Techniques, 11 Surgical Infections 449 (2010) ). None of the articles, argue the Defendants, demonstrate *1185or even suggest that the Defendants' Parietex Composite Mesh caused Nowell's injury or provide any factual support for Nowell's assertion that "[t]his article arguably proves that Parietex mesh causes harmful bacterial infections." MTD at 15 (citing Amended Complaint ¶ 39, at 10).
Turning to Nowell's manufacturing defect claim, the Defendants assert that New Mexico law requires Nowell to prove that the Defendants' mesh came " 'off the assembly line with a manufacturing defect' that caused it to 'depart[ ] from its intended design,' " MTD at 15-16 (alteration in MTD)(quoting Parker v. St. Vincent Hosp.,
Nowell's third strict liability claim, her failure-to-warn claim, according to the Defendants, requires her to prove not only that "(1) no warning was provided or the warning was inadequate; and (2) the inadequacy or absence of the warning caused the plaintiff's injury," MTD at 16 (quoting Silva v. Smithkline Beecham Corp., No. 31276,
Regarding Nowell's breach-of-express-warranty claim, the Defendants argue that New Mexico's UCC requires Nowell to prove that the Defendants' "(1) 'made an[ ] express affirmation or representation ... regarding' the product; (2) the product deviated from the express warranty; and (3) that deviation caused plaintiff's injuries," and contend that Nowell's Amended Complaint neither alleges facts pertaining to these three elements nor identifies a specific warranty that is purportedly deficient, MTD at 17-18 (alteration in MTD)(quoting Bellman v. NXP Semiconductors USA, Inc.,
Considering Nowell's breach-of-implied-warranty claim, the Defendants assert that the Amended Complaint neither alleges a claim for breach of implied warranty of fitness for a particular purpose nor facts pertaining to each element of Nowell's implied-warranty-of-merchantability claim, which are the only claims for breaches of implied warranties that New Mexico's UCC permits. See MTD at 20 (citing
The Defendants contend that, to maintain a claim for breach of the implied warranty of merchantability, Nowell must prove that "the seller sold goods or products that fail to meet the statutory definition of merchantable," MTD at 20 (internal quotation marks omitted)(quoting Bellman v. NXP Semiconductors USA, Inc.,
The Defendants insist that, as with Nowell's substantive causes of action, the Court should deny her request for punitive damages, because the Amended Complaint does not allege the requisite corresponding factual allegations to support a finding of the requisite scienter for punitive damages. See MTD at 21. Instead, according to the Defendants, the Amended Complaint "simply recites the standard for punitive damages," MTD at 21 (citing Amended Complaint ¶ 102, at 22 ("Defendant's conduct as described herein shows willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which raises the presumption of conscious indifference to consequences, thereby justifying an award of punitive damages.") ), which is the kind of "unadorned, the-defendant-unlawfully-harmed-me accusation" that Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal foreclose, MTD at 21 (internal quotation marks omitted)(internal quotation marks omitted)(quoting Ashcroft v. Iqbal,
2. The MTD Response.
Nowell responds to the Defendants' MTD. See Plaintiff's Response to Defendants Motion to Dismiss, filed April 16, 2018 (Doc. 30)("MTD Response"). Nowell argues that the Court either should deny the MTD or should treat the MTD as a motion for summary judgment pursuant to rule 12(d). See MTD Response at 2. Nowell begins by summarizing the pleading standard that the Supreme Court describes in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, see MTD Response at 2 (citing Ashcroft v. Iqbal,
Nowell next asserts that the Amended Complaint contains "good faith" causes of action "supported by a) Ms. Nowell's surgeon; b) the scientific literature; and c) common sense." MTD Response at 3 (footnotes omitted)(citing Amended Complaint ¶ 38-39, at 8-11). Nowell contends that her allegations sufficiently notify the Defendants that scientific arguments support her liability theories. See MTD Response at 3. According to Nowell, such arguments include that the mesh material "was hazardous due to its incompatibility with human tissue" and "was dangerous because it was unreasonably susceptible to mechanical failure." MTD Response at 3. Nowell argues that "the hazardous materials" used to manufacture the Defendants' mesh caused the mesh's disintegration and Nowell's infection. MTD Response at 3-4. Nowell adds that she will develop her "scientific arguments" after discovery and expert witness evaluation. MTD Response at 4. Nowell has not retained an expert witness *1189to develop her scientific arguments, she asserts, because the Amended Complaint provides adequate notice of her claims' plausibility. See MTD Response at 4. Nowell adds that the Defendants will have an opportunity to refute her "scientific claims," but that "such arguments are largely premature at this stage because the factual evidence has not been developed through discovery." MTD Response at 4.
Nowell asserts that New Mexico products liability law recognizes "claims sounding in common law negligence and in strict liability," and that the Amended Complaint includes claims that arise under these theories. MTD Response at 5 (citing Parker v. St. Vincent Hosp.,
According to Nowell, the Amended Complaint alleges in paragraph 86 that the condition of the Defendants' mesh resulted in "an unreasonable risk of injury." MTD Response at 6 (internal quotation marks omitted)(quoting Smith ex rel. Smith v. Bryco Arms,
Nowell asserts that she "placed the Defendants on notice of her general strict liability claims," because her Amended Complaint alleges:
(1) the product was defective (See , Amended Complaint ¶¶ 38, 41, 42, 47, 50, 52), (2) the product was defective when it left Defendants' hands (See , ¶ 60), and it was substantially unchanged when it reached the consumer (See , ¶ 60); (3) that because of the defect the product was unreasonably dangerous to the consumer (See , ¶ 86); (4) that the consumer was injured or damaged (See , ¶¶ 38, 40); and (5) the defective product was the proximate cause of the injury or damage (See , ¶¶ 22, 23, 39, 47, 49, 50, 51).
MTD Response at 7 (citing Garner v. Raven Indus., Inc.,
Nowell avers that "[a]n unreasonable risk of injury is a risk a reasonably prudent person having full knowledge of the risk would find unacceptable," MTD Response at 7 (internal quotation marks omitted)(quoting Smith ex rel. Smith v. Bryco Arms,
Nowell quotes from New Mexico's Civil Uniform Jury Instructions ("Civ. UJI") to support her assertion that she may prove causation so long as the defective product contributes to the injury; "[i]t need not be the only explanation ... nor the reason that is nearest in time or place." MTD Response at 8 (quoting Civ. UJI 13-1424 ). Moreover, Nowell avers, she may prove causation for her failure-to-warn claim by showing that "an adequate warning would have been noticed and acted upon to guard against the danger." MTD Response at 8 (quoting Civ. UJI 13-1425 ).
According to Nowell, the Amended Complaint alleges causation specifically in paragraph 38, wherein she states that the "Plaintiff underwent surgery during which the surgeon, Dr. William Pollard, removed an infected and disintegrated Parietex mesh in Plaintiff's abdomen." MTD Response at 8 (citing Amended Complaint ¶ 38, at 8). Nowell adds that paragraph 38 alleges that she "experienced pain in the area of the mesh and exhaustion," and that the mesh "also caused Plaintiff to undergo multiple surgical interventions." MTD Response at 8 (citing Amended Complaint ¶ 38, at 8). Moreover, adds Nowell, paragraph 46 alleges that the mesh "was made from material that is both biologically incompatible with human tissue and susceptible to mechanical failure," which, "when implanted in the human body, ... promotes (and in Ms. Nowell['s] case it promoted) infection and disintegration." MTD Response at 8-9 (citing Amended Complaint ¶ 46, at 12). Nowell insists that paragraph 38 contains "scientific references" which show that "non-biologically compatible Paritex mesh" causes the type of injuries that Nowell suffered, i.e., "disintegration and infection." MTD Response at 9 (citing Amended Complaint ¶ 38, at 8).
Regarding her failure-to-warn claim, Nowell maintains that the allegations in the Amended Complaint are sufficient, because paragraph 67 states that the " 'Defendants failed to provide sufficient warnings' ... to put Ms. Nowell 'on notice of the dangers and adverse effects caused by implantation of the Product' " and because paragraph 70 states that the Defendants marked the mesh "as safe" and as "free from the kinds of risks and hazards that the [Product] actually posed." MTD Response at 9 (alteration in MTD Response)(citing Amended Complaint ¶ 70, at 17). Further support for this claim, according to Nowell, is seen in paragraph 139, which states that "[b]ut for the Defendants' failure-to-warn, the Plaintiff would not have sustained [the alleged] injuries," MTD Response at 9 (citing Amended Complaint ¶ 139, at 33), paragraph 138, which states that Nowell's injuries "would not have occurred if adequate warning and instruction had been provided," MTD Response at 9 (citing Amended Complaint ¶ 138, at 33), and paragraph 129, which states that the Defendants' "failure to warn caused ... Plaintiff not to be aware of the defects [that] cause her injury," MTD Response at 9 (alteration in MTD Response)(citing Amended Complaint ¶ 129, at 30) ). According to Nowell, these allegations are sufficient for a reasonable jury to find that, had the Defendants warned Nowell of the mesh's "actual risks," "she would have declined to have it surgically implanted in her body." MTD Response at 9.
Nowell concedes that she has not obtained information regarding the mesh's "exact manufacturing process and specific warranty language," but insists that this *1191information is within the Defendants' "exclusive control." MTD Response at 9. Hence, Nowell requests the Court's permission to amend further the Amended Complaint "once this information becomes available through the discovery process." MTD Response at 10.
Nowell next responds to the Defendants' averment that "significant overlap" exists between Nowell's negligence and strict-liability claims, and asserts that "this overlap results from the similarity of elements between the two causes of action." MTD Response at 10 (citing MTD at 11). Nowell argues that the "breach" and "defect" elements in a strict liability claim, and in a negligence claim, respectively, are "closely related," because both elements "require an unreasonable departure from ordinary care." MTD Response at 10. Nowell adds that "causation" is another element that strict liability and negligence claims share, because "products liability law evolved from negligence law." MTD Response at 10 (citing MacPherson v. Buick Motor Co.,
Nowell disputes the Defendants' contention that she engaged in a "post hoc ergo prompter hoc logical fallacy," because her causation theories are "based on scientific research." MTD Response at 10-11 (citing MTD at 11). Nowell further disputes the Defendants' contention that she "seems to concede that a safer hernia mesh design is not possible," because the Amended Complaint alleges that the Defendants should have made their mesh from "biologically compatible" material that "was not susceptible to mechanical failure" and that "it is allegedly possible to manufacture a product with these attributes." MTD Response at 11 (citing MTD at 14). Nowell asserts that her punitive damages request is not an allegation that the Court can dismiss for failure to state a claim upon which relief can be granted, because, according to Nowell, the Tenth Circuit has concluded that a punitive damages claim is "part and parcel of a liability determination," and "does not have any independent being until a jury has decided, based on the preponderance of the evidence, that not only was a defendant's conduct negligent, but that it was gross, willful, wanton or malicious." MTD Response at 11 (internal quotation marks omitted)(quoting Mason v. Texaco, Inc.,
Nowell next disputes the Defendants' allegations that she did not bring her claims within the applicable statutes of limitations, because, according to Nowell, the discovery rule tolls the limitations period and she did not discover that the Defendants' mesh was causing her injury until October 8, 2014, when Dr. Pollard advised her "for the first time that there was a problem with the mesh and that it had to be removed." MTD Response at 12-13 (citing Williams v. Stewart,
Nowell concedes that she was skeptical about the mesh's safety before October 8, 2014, but relied on Dr. Pollard's opinion that the mesh was not her symptoms' source. See MTD Response at 14. Hence, Nowell argues that it would have been unreasonable for her to assume that the mesh was the cause of her symptoms until October 8, 2014, which, according to Nowell, the Amended Complaint alleges in paragraph 38. See MTD Response at 13-14. Nowell adds that her April 16, 2018, declaration, attached to the MTD Response as Exhibit C, further alleges these facts. See MTD Response at 14. Nowell therefore maintains that, because she acquired "sufficient knowledge to pursue a cause of action" on October 8, 2014, and because she filed her original Complaint on October 5, 2017, she brought this action within the statute of limitations. MTD Response at 14. Nowell adds that, although she has "presented matters outside the pleadings in the form of three exhibits," MTD Response at 14, the exhibits rebut the Defendants' assertion that "uncontroverted facts" show that Nowell filed her claim outside the statute of limitations. MTD Response at 14 (quoting MTD at 6). Nowell requests that, should the Court consider her exhibits, the Court treat the MTD as a motion for summary judgment pursuant to rule 12(d) of the Federal Rules of Civil Procedure. See MTD Response at 15 (citing Fed. R. Civ. P. 12(d) ("If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.") ).
3. The MTD Reply.
The Defendants reply to the MTD Response. See Reply in Support of Defendants' Motion to Dismiss, filed May 4, 2018 (Doc. 32)("MTD Reply"). In the MTD Reply, the Defendants assert that the Court should grant the MTD, because the MTD Response does not identify well-pled allegations which could support the elements necessary to prove Nowell's claims, and because it confirms that the statutes of limitations bar Nowell's claims. See MTD Reply at 1. The Defendants repeat their argument that the "uncontroverted facts" establish that the applicable statutes of limitations bar Nowell's claims, which warrant dismissal pursuant to rule 12(b)(6). MTD Reply at 1 (quoting Anderson Living Tr. v. WPX Energy Prod., LLC,
The Defendants reassert that Nowell's negligence and strict liability claims are also untimely, because such claims carry a three-year statute of limitations period, *1193and because Nowell did not file suit "until almost seven years" after her October 27, 2010, surgery. MTD Reply at 2. Defendants dispute that Nowell can salvage her claims "by contending that she 'did not reasonably discover that the Parietex was causing her injuries until October 8, 2014,' " MTD Reply at 2 (quoting MTD Response at 13), because she acknowledges that she underwent a second surgery on April 27, 2011, after the Defendants' mesh "allegedly 'began to pull away from the actual edges ,' " MTD Reply at 2 (emphasis in MTD Reply)(quoting Amended Complaint ¶ 38, at 8). The Defendants aver, in a footnote, that, although the MTD Response alleges that Nowell's physician "affirmatively told her that there was not a problem with the mesh" and specifically advised her that the mesh "was not causing her symptoms," MTD Reply at 2 n.1 (quoting MTD Response at 14), the Amended Complaint alleges only that, following her April 27, 2011, surgery, "she was 'not informed by the doctor that there was any problem with the mesh itself,' ... and that '[b]etween April 27, 2011 and March 1, 2014,' she was 'not advised that [her symptoms] were caused by the mesh,' " MTD Reply at 2 n.1 (emphasis and alterations in MTD Reply)(quoting Amended Complaint ¶ 38, at 8). The Defendants contend that, if Nowell's "new claims" about her physician's statements are true, they "raise serious questions" about Nowell's ability to establish causation. MTD Reply at 2 n.1. The Defendants contend that Nowell had the "knowledge of facts, conditions, or circumstances" to cause a "reasonable person to make an inquiry" whether the mesh caused her injuries more than six years before she filed suit. MTD Reply at 2-3 (internal quotation marks omitted)(quoting Butler v. Deutsche Morgan Grenfell, Inc.,
Nowell's duty to inquire "only intensified," the Defendants insist, because, "[b]etween April 27, 2011 and March 1, 2014, [Nowell] began experiencing symptoms including but not limited to exhaustion and pain in the area of the mesh ." MTD Reply at 3 (emphasis in MTD Reply)(internal quotation marks omitted)(quoting Amended Complaint ¶ 38, at 8). The Defendants assert that the Amended Complaint does not allege why Nowell did not ensure whether the mesh was sufficiently defective to file suit at the time of her April 27, 2011, surgery or in the three years between that surgery and her March, 2014, CT scan, i.e., allegations "that if she had diligently investigated the problem she would have been unable to discover the cause of her injury." MTD Response at 3 (internal quotation marks omitted)(quoting Martinez v. Showa Denko, K.K.,
The Defendants argue that the three exhibits which Nowell attaches to the MTD Response "show a lack of respect for the pleadings requirements of the federal rules," given that Nowell has had three opportunities -- "an initial complaint and two amended pleadings" -- to raise the fact issues that Nowell's exhibits address. MTD Reply at 3. Nonetheless, the Defendants assert, the first two exhibits, the CT scan and physician's notes, are irrelevant, because they relate to Nowell's 2014 surgery, which occurred after the statute of limitations had run. See MTD Reply at 3. The Defendants contend that the Court cannot consider Nowell's exhibits, see MTD Reply at 3 (citing Great Am. Ins. Co. v. Crabtree, No. CIV 11-1129 JB/KBM,
The Defendants contend that Nowell's request that the Court exercise its discretion to accept her exhibits and to treat the MTD as a motion for summary judgment pursuant to rule 12(d) is moot, because, "even if considered, they do not save her claims." MTD Reply at 5. Moreover, the Defendants insist, rule 12(d) permits the conversion that Nowell requests "only if 'all parties [are] given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.' " MTD Reply at 5 (quoting Fed. R. Civ. P 12(d) ). In contrast to Nowell's "repeated opportunities to include all necessary and relevant information" in the Amended Complaint, the Defendants assert that they have not had the opportunity to discover material germane to a rule 56 motion, and that, for this reason, the Court should deny Nowell's request for a rule 12(d) conversion. See MTD Reply at 5. Should the Court convert the MTD into a motion for summary judgment, the Defendants request the opportunity to obtain discovery "limited to the statute of limitations issue , before the Court considers the motion." MTD Reply at 5 (emphasis in MTD Reply).
Turning to Nowell's negligence claim, the Defendants argue that the MTD Response does not identify any well-pled facts in the Amended Complaint which allege that the Defendants breached a duty that caused Nowell's injuries. See MTD Reply at 6. The Defendants dispute that Breidenbach v. Bolish and Currier v. Doran support Nowell's pleading standards assertions, because those cases, according to the Defendants, discuss pleading requirements only in the qualified-immunity context, "which obviously has no bearing in this case." MTD Reply at 6 n.3 (citing MTD Response at 3). The Defendants add that none of Nowell's pleadings refer to "any specific acts or omissions" which suggest that the Defendants breached their duty of care to Nowell but instead provide "general *1195allegations" that the Defendants did not properly inspect, test or package the mesh "without specifying how the inspections, testing, or packaging failed to satisfy a manufacturer's duty to exercise ordinary care." MTD Reply at 6 (emphasis in MTD Reply)(citing Mims v. Davol, Inc.,
The Defendants reassert their dispute that the three scientific articles which the Amended Complaint cites support Nowell's causation theories, because these articles do not suggest that the Defendants' mesh caused Nowell's injuries. See MTD Reply at 7. According to the Defendants, each article focuses on well-known risks attendant to all hernia surgeries. See MTD Reply at 7. The Defendants assert that Nowell "misses the point" when she contends that the overlap between her negligence and strict liability claims "arises from the 'similarity of elements between the two causes of action,' " because the Defendants' argument is that pleading negligence requires more than pleading strict liability, and it therefore follows that, because Nowell has inadequately pled strict liability, the Court should dismiss her negligence claims. MTD Reply at 8 (quoting MTD Response at 10).
According to the Defendants, Nowell's strict liability claims for design defect and for failure-to-warn both require pleading that the mesh was " 'defective' and 'unreasonably dangerous,' " but Nowell has neither pled a specific defect in the Defendants' mesh design, nor a feasible design alternative that lacked the defect and that would have prevented her injuries. MTD Reply at 8 (citing Morales v. E.D. Etnyre & Co.,
The Defendants insist that Nowell concedes that she has insufficiently pled her manufacturing defect and warranty claims when she states that "despite due diligence she has been unable to obtain information *1196pertaining to the exact manufacturing process and specific warranty language." MTD Reply at 10 (quoting MTD Response at 9). In response to Nowell's assertion that the information necessary to plead her claims is within the Defendants' exclusive control, and "will be developed after discovery is complete and an expert witness evaluates the information," MTD Reply at 10-11 (quoting MTD Response at 4), the Defendants assert that Nowell cannot rely on "vague allegations and the hope that discovery eventually will reveal some basis" for Nowell's claim, MTD Reply at 11 (citing DM Research v. Coll. of Am. Pathologists,
The Defendants maintain that Nowell is not entitled to punitive damages, and contend that she "misses the point" when she asserts that "punitive damages is not an allegation that can be dismissed for failure to states a claim," MTD Reply at 11 (internal quotation marks omitted)(quoting MTD Response at 11), because, according to the Defendants, Nowell's punitive damages request "requires " an allegation that the Defendants engaged in conduct that was "maliciously intentional, fraudulent, oppressive, or committed recklessly or with a wanton disregard to the plaintiffs' rights," MTD Reply at 11 (emphasis in MTD Reply)(internal quotation marks omitted)(quoting Loucks v. Albuquerque Nat. Bank,
4. The Hearing.
At the hearing on August 10, 2018, the Defendants began by asking the Court to grant their MTD, because, according to the Defendants, Nowell's Amended Complaint fails to state claims upon which relief can be granted, and because the applicable statutes of limitations bar her inadequately pled claims. See Transcript of Hearing at 4:24-5:4 (taken August 10, 2014), filed August 22, 2018 (Doc. 43)(Reyes)("Tr."). The Defendants note that the Amended Complaint is Nowell's second amended complaint after seeing the Defendants' initial motion to dismiss, which indicates to the Defendants that Nowell is unable to cure the Amended Complaint's deficiencies. See Tr. at 5:5-9 (Reyes). The Defendants further note that the three exhibits which Nowell attached to the MTD Response are improper on a 12(b)(6) motion and that any allegations therein "should have, of course, been made in any one of her three complaints." Tr. at 5:14-18 (Reyes).
The Court then asked Nowell whether, after considering the briefing and her reply, she is willing to concede any of her claims. See Tr. at 6:9-12 (Court). Nowell responded that she concedes that the applicable statute of limitations bars her express warranty claim. See Tr. at 6:14-17 (Montclare). The Court next asked Nowell to describe what she sees as the defect in the Defendants' mesh. See Tr. at 7:1-3 (Court). Nowell responded that the defect, as she sees it, has two elements: first, that the mesh "was made from a material that was unreasonable, ... and that the propensity of the material used to promote infection, as evidenced by the scientific literature, would make it an unreasonable product and unsafe product"; and second, that "the way that it was manufactured, the physical integrity of the mesh itself was not sturdy enough to withstand the forces of [Nowell's] body and therefore, it did not -- it caused physical injury due to *1197the fact that the mesh was mechanically unfit." Tr. at 7:7-22 (Montclare).
The Court confirmed that Nowell is asserting a manufacturing defect claim and a design defect claim. See Tr. at 7:23-8:1 (Court, Montclare). The Court then asked Nowell whether she has proposed an alternative material that the Defendants should have used to design their mesh. See Tr. at 8:2-9 (Court). Nowell responded that she does not have alternatives "at this time." Tr. at 8:10-15 (Montclare). The Court asked whether Nowell has retained an expert that has advised her that the Defendants could have manufactured their mesh using alternative materials. See Tr. at 8:18-22 (Court). Nowell responded that, although she has not retained such an expert and cannot "argue the weight of the evidence in that regard at this time," "the types of surgical mesh that are being used now are improvements on the older manufacturing methods employed by defendants," and that she is "confident" that she can show this to the Court's satisfaction. Tr. at 8:23-9:5 (Montclare).
The Court confirmed that Nowell does not have an alternative material, see Tr. at 9:6-13 (Court, Montclare), and asked Nowell to make an opening statement, see Tr. at 9:14-16 (Court). In response, Nowell stated that she is not here to weigh the evidence, but merely to determine whether the Amended Complaint is plausible on its face. See Tr. at 9:17-21 (Montclare). Nowell added that she "has articulated, almost element by element, factual assertions that are plausible as to each and every claim," which, according to Nowell, is unnecessary "at this early stage." Tr. at 9:24-10:2 (Montclare). Nowell added that the Court should not expect her "to give complex scientific arguments on how she could improve the product at this time," evidence which Nowell contends will "be forthcoming as the case progresses." Tr. at 11:1-5 (Montclare). Turning to the statute of limitations, Nowell asserted that the Court should not deem her to have discovered the injury until her physician diagnosed it and that cases, in particular Robinson v. BNSF Railway Co., "investigate the relationship between a misdiagnosis and the discovery of an injury." Tr. at 11:9-14 (Montclare). Nowell asserted that, because the question when the cause of action occurred is a factual issue, the Court should analyze it in the summary judgment context, after the Court affords Nowell the ability to depose witnesses. See Tr. at 11:14-21 (Montclare). Nowell summarized her response to the Court's concern regarding an alternate material by asserting that "a better alternative product would be one that didn't cause her injury." Tr. at 12:2-4 (Montclare).
The Defendants asserted that Nowell's implied breach of warranty claim
carries the same four-year statute of limitations as the express warranty claim, and that there is no discovery tolling with respect to any warranty claim, including an implied breach of warranty claim. And because plaintiff did not file her complaint until seven years after the mesh was implanted, both of the warranty claims are barred by the statute of limitations.
Tr. at 12:13-22 (Reyes). The Defendants added that Nowell has not set out either warranty claim's elements sufficient to withstand rule 12(b)(6). See Tr. at 12:23-13:2 (Reyes).
The Court then asked Nowell why she is conceding that her express-warranty claim is time-barred, but arguing that her implied warranty claim is timely. See Tr. at 13:3-7 (Court). Nowell responded that a New Mexico statute makes clear that the discovery rule cannot toll an express warranty claim, but that "New Mexico law ... has not made a decision anywhere in the *1198case law or in statutory law that would either apply or not apply the discovery rule to implied warranty claims such as that for a particular fitness of purpose or merchantability." Tr. at 13:14-19 (Montclare).
The Court then asked why a federal court should predict that the Supreme Court of New Mexico would apply the discovery rule to an implied warranty claim and whether other courts have done so, see Tr. at 13:22-14:6 (Court), to which Nowell responded that she has observed a trend in New Mexico appellate jurisprudence which indicates that the Court of Appeals of New Mexico or the Supreme Court of New Mexico would apply the discovery rule to implied warranty claims "because this particular type of claim is very tort-related, whereas most express warranty claims are more sales-related," Tr. at 14:7-19 (Montclare).
The Defendants then directed the Court to AIG Aviation Insurance v. Avco Corp.,
The Defendants turned next to their argument that the Amended Complaint fails to state a claim for the breach of implied warranty, and asserted that Nowell "does not set out what the warranty was, what the implied warranty was, or what the breach of that was with respect to that." Tr. at 17:10-15 (Reyes). The Court asked Nowell what the implied warranty is in this case. See. Tr. at 17:16-17 (Court). Nowell responded: "merchantability, ... due to the fact that ... the particular type of mesh that was used was causing injuries, ... and that an implied warranty would extend from the discovery of that injury." Tr. at 17:18-25 (Montclare). The Defendants rejoined: "[I]f an implied warranty could be tolled under the discovery rule, it would gut the express warranty rule with respect to the statute of limitations." Tr. at 18:6-9 (Reyes).
The Defendants insisted that the parties agree that Nowell did not file her claims until seven years after her initial surgery involving the Defendants' mesh, and, thus, "because the face of the complaint establishes that the statute of limitations bar the claim without some form of tolling," Nowell now bears the burden to make allegations that, if proven at trial, could convince a reasonable jury to reject the limitations. Tr. at 18:20-19:4 (Reyes). The Defendants insisted further that Nowell has not carried this burden and that she *1199misconstrues the discovery rule when she states that it became reasonable to assume that the Defendants' mesh was causing her symptoms only on October 8, 2014, i.e., after her physician diagnosed the mesh as her injury's cause despite its implantation nearly four years before, in October, 2010. See Tr at 19:5-19 (Reyes). The Defendants continued:
The question under the discovery rule is not when a plaintiff gets a definitive diagnosis of the injury and its cause. The question is when the plaintiff, quote, "experiences physical symptoms that would cause an ordinary person to make an inquiry about the discovery of the cause of the symptoms. That is the point at which the statute of limitations begins to accrue."
Tr. at 19:20-20:2 (Reyes)(quoting Gerke v. Romero,
Nowell responded that the parties and the Court are "not here to weigh the evidence of ... the specific facts that went to when this cause of action ensued" and that the cases which the Defendants cite are "summary judgment cases where the few facts have been ... fully developed through the discovery process including the depositions of all the witnesses." Tr. at 21:15-22:1 (Montclare). Nowell added that even the Defendants' "most powerful case," Robinson v. BNSF Railway Company, "which investigated the relationship between the misdiagnosis and the discovery of an injury" is a summary judgment case that is distinguishable from the facts here, because the patient in Robinson v. BNSF Railway Company was not under a physician's constant care, unlike Nowell, and because the patient's physician did not discuss potential other causes for the patient's injury, whereas here Nowell's physician "discussed the possibility that the staph infection could have been normal." Tr. at 22:5-18 (Montclare). Nowell added that, in Robinson v. BNSF Railway Co., the Honorable John Lungstrum, United States District Judge for the District of Kanasas, "discussed [ Mest v. Cabot Corp.,
The Court asked Nowell whether she has anything further to say regarding the discovery issue, i.e., any facts to add that are not already in the Nowell Affidavit or in her Amended Complaint, because, in the Court's experience, plaintiffs avoid addressing statutes-of-limitations questions at the motion-to-dismiss stage by omitting dates, which the Court previously has permitted, but here the Amended Complaint and the Nowell Affidavit include dates and facts such that the issue arguably is ripe for decision. See Tr. at 23:10-24:6 (Court). Nowell responded in the affirmative and argued that the case has not ripened to the point where the Court can make a final decision, because Nowell, for example, has not deposed her physician "so that he can explain in detail how he had indicated that he affirmatively said that the mesh was not involved." Tr. at 24:7-14 (Montclare). "So we have not even scratched the surface as far as our ability to marshal the evidence in support of the claim, because we simply don't believe that that's our burden at this juncture." Tr. at 24:14-18 (Montclare). The Court asked whether Nowell is suggesting that a split exists among jurisdictions or whether, among New Mexico cases, "there were some cases that read a certain way which suggest your facts would be time-barred, that the discovery rule -- the discovery would have occurred earlier; and then there are some cases that you're saying it would not satisfy the discovery rule[.]" Tr. at 24:22-25:4 (Court). In response, Nowell asserted that the cases to which she directs the Court explain how a physician's misdiagnosis could toll the statute of limitations when the misdiagnosis prevents the plaintiff from discovering the issue, and that such cases might help the defense to build arguments "during summary judgment" whether Nowell's cause of action accrued before the misdiagnosis. Tr. at 25:8-19 (Montclare). The Court asked what about Robinson v. BNSF Railway Co. tells Nowell that her case is not appropriate either to decide on a motion to dismiss or to decide that the discovery rule does not apply. See Tr. at 25:22-26:5 (Court). Nowell responded that Robinson v. BNSF Railway Co. cites Mest v. Cabot Corp., which "basically says that if the doctor gives a misdiagnosis to the plaintiff, as he did in this case, the statute of limitations tolls. Because ... the plaintiff did not know that there was an injury, because the doctor told the plaintiff that that was not a cause of the injury." Tr. at 26:12-22 (Montclare). The Court then asked whether Nowell is alleging that her physician committed malpractice. See Tr. at 26:24-27:1 (Court). Nowell responded that her physician's statement -- that the Defendants' mesh was not the cause of Nowell's injury until October 8, 2014, when he changed his opinion -- "may very well be malpractice," but that she has not developed that argument and therefore considers it a misdiagnosis. Tr. at 27:3-8 (Montclare).
The Defendants conceded that Robinson v. BNSF Railway Co."does indicate that a misdiagnosis is not a basis not to toll the discovery rule," but asserted that the issue here is "[w]hen the individual was on inquiry notice and should have taken reasonable action, reasonable actions would have uncovered the injury." Tr. at 27:25-28:5 (Reyes). The Defendants emphasized that Mest v. Cabot Corp. is a United States Court of Appeals for the Third Circuit case and called the Court's attention to Martinez v. Showa Denko, K.K., which is a Court of Appeals of New Mexico case. See Tr. at 28:7-11 (Reyes). The Defendants contended that, in Martinez v. Showa Denko, K.K., the Court of Appeals of New Mexico addresses the interplay between a misdiagnosis and the discovery rule:
*1201"This case involves contrary diagnoses in which the overwhelming diagnosis was that the individual had not suffered a particular injury that was caused by a product." It later turned out that she had, and the Court wrote, "Although we are sympathetic to plaintiff's situation, nothing in the discovery rule serves to suspend the running of the statute of limitations merely because there are divergent medical opinions concerning the nature or cause of the illness or injuries. As observed by another court" -- they cite another court in Texas -- "because of the discovery rule's requirement of reasonable diligence, the tolling of the applicable statute of limitations by the rule ends when the person claiming the benefit of the rule acquires knowledge of facts, conditions, or circumstances which would cause a reasonable person to make an inquiry leading to the discovery of the concealed cause of action. This is so because the knowledge of such matters is, in the law, equivalent to knowledge of the cause of action itself for limitation purposes."
Tr. at 28:13-29:9 (Reyes)(quoting Martinez v. Showa Denko, K.K.,
The Defendants noted that, although the Court cannot take the Nowell Affidavit into consideration if the case proceeds to discovery, the Defendants assume that Nowell will testify consistent with the Nowell Affidavit, and that the Nowell Affidavit's statements, specifically,
"I was concerned that there was a problem with the surgical mesh that was implanted on October 27, 2010. I talked about my concerns with my physician. He advised me that he did not think that my symptoms were caused by the mesh. Since he is my doctor, I accepted his advice that the mesh was not causing my symptoms. However, I still had my suspicions."
indicate as a matter of law that Nowell's claims are time-barred. Tr. at 29:10-24 (Reyes)(quoting Nowell Affidavit at 1) ). The Defendants reasserted that the statute of limitations began to run after Nowell's second surgery put Nowell on inquiry notice and expired well before Nowell filed her initial Complaint. See Tr. at 29:25-30:5 (Reyes). Because Nowell was on inquiry notice as of the day of her second surgery, in April, 2011, the Defendants argued, discovery will not change the facts in the Amended Complaint and in the Nowell Affidavit, and will confirm only that the statutes of limitations bar Nowell's claims. See Tr. at 30:614 (Reyes).
Turning to Nowell's strict-liability claims, the Defendants asserted that Nowell conceded in the MTD Response that she did not plead facts sufficient to state a manufacturing-defect claim. See Tr. at 30:22-31:10 (Reyes)(quoting MTD Response at 9 ("In regard to the manufacturing and warranty defects, Ms. Nowell concedes that despite due diligence, she has been unable to obtain information pertaining to the exact manufacturing process and specific warranty [language].") ). The Defendants urged the Court to take Nowell's assessment to its logical conclusion and dismiss her manufacturing-defect claim, because she does not "state in any way, shape, or form how this particular mesh was defective when it came out of the plant with respect to the manufacturing." Tr. at 31:11-17 (Reyes). The Court asked the Defendants whether this argument applies to all three of Nowell's strict-liability theories -- design, manufacture, and failure-to-warn. See Tr. at 31:18-24 (Court). The Defendants responded that their understanding is that Nowell's concession is limited to her manufacturing-defect claim. See Tr. at 31:25-32:5 (Reyes). Nowell replied that her inability to articulate plausible *1202facts regarding the manufacturing defect is because that information is available to her only through the discovery process: "The nuances of the manufacturing process are not known and cannot be known by my client until further discovery." Tr. at 32:8-15 (Montclare). She therefore asked the Court to dismiss that count without prejudice. See Tr. at 32:16-17 (Montclare).
The Defendants turned next to Nowell's design-defect claim and disputed Nowell's assertion that, because the mesh material did not prevent accumulation of infection, it was therefore unreasonable. See Tr. at 33:11-20 (Reyes). Instead, the Defendants argued that all hernia repair surgeries carry a well-known infection risk, and, thus Nowell's infection allegation is insufficient to indicate that the Defendants' mesh is unreasonably dangerous. See Tr. at 33:20-34:2 (Reyes). The Defendants provided the Court with three grounds to dismiss Nowell's claim:
[F]irst, the claim must be dismissed because they haven't alleged an actual design defect. Secondly, the claim should be dismissed because there's nothing in her allegation that makes it plausible as opposed to just consistent with or possible that her injury was caused by a defect in the mesh as opposed to it just being a known side effect of a well-functioning mesh and would have happened regardless of what mesh was used. And third ..., Your Honor, you had another good question ..., which is: What safer alternative design is she proposing with respect to the mesh? And ... they don't have one. And ... they don't have one because all meshes carry this potential risk of infection that Ms. Nowell was injured by.
Tr. at 34:3-20 (Reyes).
The Defendants reminded the Court of its opinion in Morales v. E.D. Etnyre & Co. wherein, the Defendants argued, the Court "rightfully said that we should be concerned with the plaintiff coming to court 'merely to criticize a product' without proposing any alternative." Tr. at 34:21-25 (Reyes)(quoting Morales v. E.D. Etnyre & Co.,
An alternative theory for Nowell's infection, the Defendants contended, is that, because "it's clear from her complaint that for four years, she didn't seem to have an infection in her abdomen," Nowell developed a staph infection, "which began at the skin, at the drainage site, [and] migrated down to her body[,] to include the mesh." Tr. at 35:14-36:1 (Reyes). The Defendants insist that this theory is consistent with the Amended Complaint's allegations and with the physician's notes that Nowell attaches to the MTD Response. See Tr. at 36:2-9 (Reyes).
The Court stated that it has dealt with competing designs at trial, "so it's clear to the jury what they're being asked to compare the current design with," but questioned whether state or federal pleading law requires the plaintiff in a products liability case "to put their competing designs on the table at the time they file the case." Tr. at 36:21-37:5 (Court). In response, Nowell asserted that the Court in *1203Morales v. E.D. Etnyre & Co. made clear to the parties that it would not permit that case to go to trial unless the plaintiff proposed a safer alternative. See Tr. at 37:8-12 (Reyes). The Defendants added that Nowell has not alleged that a safer hernia mesh product design exists which could reduce the risk of infection, because "the very injury that she's complaining of is an injury that's inherent in every single mesh product." Tr. at 37:13-24 (Reyes). The Defendants insisted that the Court should require Nowell to propose a safer alternative design before allowing Nowell to proceed with discovery. See Tr. at 38:3-8 (Reyes). The Defendants informed the Court that, after its decision in Morales v. E.D. Etnyre & Co., the Court of Appeals of New Mexico issued a decision in Bustos v. Hyundai Motor Co.,
In response, Nowell argued that an alternative design better than the Defendants' mesh is not an element of her claims, and she therefore does not need to articulate one at this time. See Tr. at 39:13-18 (Reyes). Nevertheless, Nowell asserted, the Amended Complaint cites three scientific articles which indicate how the Defendants' "actual, specific mesh" is dangerous. Tr. at 39:23-40:2 (Montclare). "Central Failures of Monofiliment Polyester Mesh Causing Hernia Recurrence: A Cautionary Note," Nowell averred, describes how a mesh type similar to the Defendants' "was deemed to have had a high incidence of mechanical failure." Tr. at 40:2-7 (Montclare). Further evidence, alleged Nowell, is in "Postoperative Mesh Infection -- Still A Concern in Laparoscopic Era," which "states that this type of synthetic mesh was ... dangerous," and in "Novel in Vitro Model for Assessing Susceptibility of Synthetic Hernia Meshes," which "state[s] that this type of mesh is a major cause of patient morbidity and results in substantial health care expenditures." Tr. at 40:8-18 (Montclare). Because these articles indicate that the Defendants' mesh is "extremely dangerous," Nowell concluded, the question is not whether Nowell can present the Court with a better mesh but whether the Defendants' mesh "should be used in the first place." Tr. at 40:21-24 (Montclare).
The Defendants disputed that the three scientific articles support Nowell's allegation that the Defendants' mesh is dangerous, beginning with the first article, which "discusses a potential for a central mesh fracture, which is not an injury complained of here, not something that happened with the mesh here. It also discussed a different mesh." Tr. at 41:7-14 (Reyes). Moreover, the Defendants continued, the second and third articles support the Defendants' position that infection is a known risk in all hernia repair surgeries and, therefore, Nowell cannot allege causation, because the *1204Amended Complaint does not assert facts to suggest that Nowell's injury resulted from a design defect as opposed to a side effect associated with all surgical hernia repairs. See Tr. at 41:15-25 (Reyes).
The Defendants next turned to Nowell's failure-to-warn claim and asserted that all hernia repair meshes, including their mesh, carry a warning that infection is a known side effect; "[s]o the physician was warned of the risk of the infection, and the duty here runs from the manufacturer to the physician." Tr. at 42:7-14 (Reyes). The Defendants noted that the Amended Complaint does not allege that the Defendants did not warn Nowell's physician or that her physician would have made a decision not to use the Defendants' mesh had he had a different warning. See Tr. at 42:14-17 (Reyes).
The Defendants acknowledged their familiarity with the Court's decision in Rimbert v. Eli Lilly & Co., wherein the Court concluded that the Supreme Court of New Mexico would not adopt the learned-intermediary doctrine, but asserted that the rationale underlying that decision does not apply here, because Rimbert v. Eli Lilly & Co. involved direct manufacturer-to-consumer advertising and the Defendants do not advertise their hernia mesh products to the consumer directly. See Tr. at 42:18-43:8 (Reyes). A patient's physician, the Defendants argued, makes the decision as to which hernia mesh to use, and this decision is based often on the physician's idiosyncratic preferences for one mesh over another or, once the surgery has commenced, after the physician can evaluate a given hernia's nature and extent. See Tr. at 43:11-17 (Reyes). Hence, the Defendants concluded, unlike the defendant in Rimbert v. Eli Lilly & Co., they do not have a duty to warn the ultimate consumer of the risks associated with their hernia mesh products; "[h]ere the duty does and must run to the physician." Tr. at 43:18-22 (Reyes). The Defendants added that Nowell alleges neither the specific mesh-type that her physician used on her, nor the allegedly inadequate warnings associated with the specific mesh-type used, which, the Defendants argued, clouds the question what specific, adequate warning the Defendants could have provided. See Tr. at 44:5-11 (Reyes).
Nowell replied by identifying two distinct issues: first, whether the Defendants should have given a warning in the first place, and second, whether any warning was sufficient or reasonable. See Tr. at 44:14-18 (Montclare). Regarding the first issue, Nowell asserted: "[W]e don't have any evidence that an actual warning was given." Tr. at 44:19-20 (Montclare). Nowell asserted that the Defendants are liable for failing to warn her of the mesh's potential to cause injury but conceded that, "as far as any type of express warranties, we are not in a position to have that information yet," and therefore seeks discovery. Tr. at 44:23-45:7 (Montclare).
The Court asked Nowell whether the Defendants accurately described her failure-to-warn claim. See Tr. at 45:8-10 (Court). Nowell responded that, although the Defendants did "a reasonable job" describing it, they did not address the "material issue of fact as to whether or not ... a specific warning should have been given, given the dangerous propensity of this mesh." Tr. at 45:11-17 (Montclare). Nowell added that, if the Defendants did not give a required warning, they violated their duty to warn. See Tr. at 45:18-20 (Montclare). The Defendants responded that the question is whether the Defendants should have warned Nowell's physician and then asserted that Nowell does not know whether the Defendants did so, which is a basis for dismissal, according to the Defendants, given that "we're far down the road *1205and that we do have pleading standards." Tr. at 45:23-46:9 (Reyes).
The Defendants argued that the Court should dismiss Nowell's negligence claim for the same reason that it should dismiss her design-defect and failure-to-warn claims, i.e., because the Amended Complaint does not include factual allegations "with respect to a duty or respect to a breach of the duty." Tr. at 46:15-23 (Reyes). Without an alleged design defect or an alleged failure-to-warn, the Defendants continued, Nowell cannot allege a breach and the Court, therefore, should dismiss her negligence claim. See Tr. at 46:23-47:2 (Reyes). Nowell responded that the MTD Response discusses "every element of negligence and what would have to be proven should this case go to trial," and includes citations to the relevant paragraphs in the Amended Complaint, which "provide a plausible claim for negligence." Tr. at 48:6-20 (Montclare)(citing MTD Response at 5). The Defendants replied that the citations to which Nowell directs the Court in the MTD Response "are just conclusory allegations that are plainly not sufficient under Iqbal and Twombly." Tr. at 48:25-49:4 (Reyes). The Defendants added that they have also asked the Court to dismiss Nowell's punitive damages claim. See Tr. at 49:5-6 (Reyes). In response, Nowell asserted that she is not "under the burden to discuss each element," but has nevertheless done so, and that, "as far as punitive damages are concerned," the MTD Response "cite[s] numerous paragraphs that support why punitive damages would be appropriate according to the elements of New Mexico Law." Tr. at 49:14-25 (Montclare). The Defendants reasserted their position that the Amended Complaint does not "allege the type of egregious conduct that would warrant punitive damages." Tr. at 50:4-7 (Reyes).
The Court stated that, although it needs to consider further the implied-warranty issue, the Court nonetheless thinks that Nowell is "kind of pushing the envelope to try to get the discovery rule to apply to the implied warranty claim" and that the Court, therefore, is "inclined to think that it's just overwhelming that th[e] discovery rule shouldn't apply." Tr. at 50:10-18 (Court). Turning to the facts that the Amended Complaint alleges, the Court stated that plaintiffs sometimes want bad news early, and that, "by putting all these facts and all these detailed allegations in the complaint, that there's a lot to work with here to decide whether the negligence and strict liability claims have been tolled." Tr. at 51:1-7 (Court). The Court added that it looks to the Court like Nowell "was on notice that she had some problems outside the statute of limitations period," although the Court expressed its intention to review Robinson v. BNSF Railway Co. alongside Nowell's other cases and arguments. Tr. at 51:8-13 (Court). The Court stated that it needs to consider further the Defendants' remaining 12(b)(6) arguments and that it wants to review the Court of Appeals of New Mexico's decision in Bustos v. Hyundai Motor Co., but that it seems to the Court that "to embark on a case like this without some alternatives to the product that's being challenged here may just not get us anywhere." Tr. at 51:14-52:3 (Court). The Court nonetheless expressed that it would review the three scientific articles attached to the Amended Complaint to "see if there's a design defect here that should go forward." Tr. at 52:6-10 (Court). The Court declined to express any inclination regarding Nowell's failure-to-warn claim, because the Court desired to consider whether its decision in Rimbert v. Eli Lilly & Co. applies to the facts as Nowell alleges them. See Tr. at 52:11-15 (Court). The Court stated its inclination to dismiss Nowell's punitive damages claim, *1206because "it doesn't look like ... there's anything that's pled or even known by the plaintiff at the present time that would support punitive damages," but would permit Nowell to reassert it "[i]f something comes up down the road." Tr. at 52:16-22 (Court). The Court similarly dismissed Nowell's manufacturing-defect claim, because it agreed with the Defendants that "we shouldn't have discovery going to the manufacturing defect" unless "something shows up in the discovery of the other claims," in which case Nowell "may be able to move to reinsert the manufacturing defect claim." Tr. at 52:22-4 (Court). The Court dissuaded the parties from continuing to work on this case until the Court issues an opinion, "because I think some claims are going to be dismissed, if not the case." Tr. at 53:6-10 (Court).
LAW REGARDING RULE 12(b)(6)
Rule 12(b)(6) authorizes a court to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick,
A complaint need not set forth detailed factual allegations, yet a "pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action" is insufficient. Ashcroft v. Iqbal,
To survive a motion to dismiss, a plaintiff's complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly,
*1207Ridge at Red Hawk, LLC v. Schneider,
"[P]lausibility" in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs "have not nudged their claims across the line from conceivable to plausible." The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.
Robbins v. Oklahoma,
Although affirmative defenses must generally be pled in the defendant's answer, not argued on a motion to dismiss, see Fed. R. Civ. P. 8(c), there are exceptions where: (i) the defendant asserts an immunity defense -- the courts handle these cases differently than other motions to dismiss, see Glover v. Gartman,
LAW REGARDING JUDICIAL NOTICE OF DOCUMENTS WHEN RULING ON A MOTION TO DISMISS
Rule 201 of the Federal Rules of Evidence allows a court to, at any stage of *1208the proceeding, take notice of "adjudicative" facts that fall into one of two categories: (i) facts that are "generally known within the territorial jurisdiction of the trial court;" or (ii) facts that are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b), (f). "Adjudicative facts are simply the facts of the particular case." United States v. Wolny,
LAW REGARDING THE USE OF DOCUMENTS OUTSIDE THE PLEADINGS IN A RULE 12(b)(6) MOTION
Generally, the sufficiency of a complaint must rest on its contents alone. See Casanova v. Ulibarri,
If a district court intends to rely on other evidence, it must convert the rule 12(b)(6) motion to a motion for summary judgment, giving proper notice to the parties. See Fed. R. Civ. P. 12(d) ("If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56."); GFF Corp. v. Associated Wholesale Grocers, Inc.,
In Gee v. Pacheco,
The Court has previously ruled that, when a plaintiff references and summarizes statements from defendants in a complaint for the purpose of refuting the statements in the complaint, the Court cannot rely on documents which the defendants attach to a motion to dismiss which contain their un-redacted statements. See Mocek v. City of Albuquerque, No. CIV 11-1009 JB/KBM,
On the other hand, in a securities class action, the Court has ruled that a defendant's operating certification, to which plaintiffs refer in their complaint, and which was central to whether the plaintiffs adequately alleged a loss, falls within an exception to the general rule, so the Court may consider the operating certification when ruling on the defendant's motion to dismiss without converting the motion into one for summary judgment. See Genesee Cty. Emps.' Ret. Sys. v. Thornburg Mortg. Secs. Tr. 2006-3,
LAW REGARDING AMENDMENT OF PLEADINGS
A party may amend its pleadings once as a "matter of course" within twenty-one days of serving the pleading or twenty-one days after a service of a motion under rules 12(b), (e), or (f) of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 15(a)(1). Rule 15(a)(2) provides: "In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. Under rule 15(a), the court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). See In re Thornburg Mortg., Inc. Sec. Litig.,
A court should deny leave to amend under rule 15(a), however, if the proposed "amendment would be futile." Jefferson Cnty. Sch. Dist. v. Moody's Investor's Serv.,
Undue delay is demonstrated where the proposed amendment comes after the deadline to amend pleadings and the amending party has no adequate explanation for the delay. See Minter v. Prime Equip. Co.,
A court may thus deny the motion for leave to amend because of untimeliness, especially when the party seeking an amendment knows, should have known, or has reason to know of the facts supporting the claim in the proposed amendment, but fails to include it when the original complaint was filed.
Street v. Curry Bd. of Cnty. Comm'rs, No. CIV 06-0776 JB/KBM,
When a scheduling order governs the case, the Tenth Circuit has interpreted rule 16 of the Federal Rules of Civil Procedure to impose a "good cause" standard on untimely motions to amend, which "requires the moving party to show that it has been diligent in attempting to meet the deadlines, which means it must provide an adequate explanation for any delay." Minter v. Prime Equip. Co.,
[R]ule 16(b) of the Federal Rules of Civil Procedure provides that a court shall enter a scheduling order limiting the time to amend pleadings.... Courts have held that, when a party files a motion to amend after the scheduling order's deadline has passed, (i) '[the]
*1213movant must first demonstrate to the court that it has a "good cause" for seeking modification of the scheduling deadline under Rule 16(b)"; and (ii) "[i]f the movant satisfies Rule 16(b)'s 'good cause' standard, it must then pass the requirements for amendment under Rule 15(a)."
Trujillo v. Bd. of Educ. of the Albuquerque Pub. Sch., Nos. CIV 02-1146 JB/LFG, CIV 03-1185 JB/LFG,
LAW REGARDING MOTIONS FOR SUMMARY JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure states: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "The movant bears the initial burden of 'show[ing] that there is an absence of evidence to support the nonmoving party's case.' " Herrera v. Santa Fe Pub. Sch.,
Before the court can rule on a party's motion for summary judgment, the moving party must satisfy its burden of production in one of two ways: by putting evidence into the record that affirmatively disproves an element of the nonmoving party's case, or by directing the court's attention to the fact that the non-moving party lacks evidence on an element of its claim, "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex,477 U.S. at 323-25 [106 S.Ct. 2548 ]. On those issues for which it bears the burden of proof at trial, the nonmovant "must go beyond the pleadings and designate specific facts to make a showing sufficient to establish the existence of an element essential to his case in order to survive summary judgment." Cardoso v. Calbone,490 F.3d 1194 , 1197 (10th Cir. 2007).
*1214Plustwik v. Voss of Nor. ASA, No. CIV 11-0757 DS,
The party opposing a motion for summary judgment must "set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc.,
Nor can a party "avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation." Colony Nat'l Ins. v. Omer, No. CIV 07-2123 JAR,
To deny a motion for summary judgment, genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby,
When reviewing a motion for summary judgment, the court should keep in mind certain principles. First, the court's role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Liberty Lobby,
There are, however, limited circumstances in which the court may disregard a party's version of the facts. This doctrine developed most robustly in the qualified immunity arena. In *1216Scott v. Harris,
At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a "genuine" dispute as to those facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, "[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts .... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.' " Matsushita Elec. Indus[.] Co. v. Zenith Radio Corp., 475 U.S. [at] 586-587 [106 S.Ct. 1348 ]... (footnote omitted). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. [at] 247-248 [106 S.Ct. 2505 ].... When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.
That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. Respondent's version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.
Scott v. Harris , 550 U.S. at 380-81,
The Tenth Circuit applied this doctrine in Thomson v. Salt Lake County,
[B]ecause at summary judgment we are beyond the pleading phase of the litigation, a plaintiff's version of the facts must find support in the record: more specifically, "[a]s with any motion for summary judgment, when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts." York v. City of Las Cruces,523 F.3d 1205 , 1210 (10th Cir. 2008) (quoting Scott[ v. Harris ], 550 U.S. at 380,127 S.Ct. 1769 ); see also Estate of Larsen ex rel. Sturdivan v. Murr,511 F.3d 1255 , 1258 (10th Cir. 2008).
Thomson v. Salt Lake Cty.,
LAW REGARDING CHOICE-OF-LAW AND STATUTES OF LIMITATIONS
The Supreme Court has held that a federal court sitting in diversity should apply the same statute of limitations that a state court of the forum state would apply. See Guar. Tr. Co. v.York,
New Mexico courts have held that "the law of the forum governs matters of procedure." Estate of Gilmore,
Each state has local law rules prescribing the procedure by which controversies are brought into its courts and by which the trial of these controversies is conducted. These rules for conducting lawsuits and administering the courts' processes vary from state to state. The forum has compelling reasons for applying its own rules to decide such issues even if the case has foreign contacts and even if many issues in the case will be decided by reference to the local law of another state. The forum is more concerned with how its judicial machinery functions and how its court processes are administered than is any other state.
*1218Also, in matters of judicial administration, it would often be disruptive or difficult for the forum to apply the local law rules of another state. The difficulties involved in doing so would not be repaid by a furtherance of the values that the application of another state's local law is designed to promote.
Estate of Gilmore,
The Supreme Court of New Mexico has adopted the First Restatement approach to choice-of-law analyses, see United Wholesale Liquor Co. v. Brown-Forman Distillers Corp.,
If action is barred by the statute of limitations of the forum, no action can be maintained though action is not barred in the state where the cause of action arose.... If action is not barred by the statute of limitations of the forum, an action can be maintained, though action is barred in the state where the cause of action arose,
First Restatement §§ 603-04, and the Second Restatement is nearly identical in substance:
(1) An action will not be maintained if it is barred by the statute of limitations of the forum, including a provision borrowing the statute of limitations of another state. (2) An action will be maintained if it is not barred by the statute of limitations of the forum, even though it would be barred by the statute of limitations of another state, except as stated in § 143,
Second Restatement § 142. The only exception is if the forum state's statute of limitations "bars the right and not merely the remedy," in which case the action is barred regardless of the forum chosen. Second Restatement § 143 ("An action will not be entertained in another state if it is barred in the state of the otherwise applicable law by a statute of limitations which bars the right and not merely the remedy."). Accord First Restatement § 605 ("If by the law of the state which has created a right of action, it is made a condition of the right that it shall expire after a certain period of limitation has elapsed, no action *1219begun after the period has elapsed can be maintained in any state.").
LAW REGARDING NEW MEXICO STATUTES OF LIMITATIONS AND THE DISCOVERY RULE
"Although a statute of limitations bar is an affirmative defense, it may be resolved on a Rule 12(b)(6) motion to dismiss 'when the dates given in the complaint make clear that the right sued upon has been extinguished.' " Torrez v. Eley,
In New Mexico, tort claims are generally subject to a three-year statute of limitations, see
*1220Bellman v. NXP Semiconductors USA, Inc.,
New Mexico applies the "discovery rule," which means that the statute of limitations period "begins to run when the claimant has knowledge of sufficient facts to constitute a cause of action." Gerke v. Romero,
LAW REGARDING BREACH OF WARRANTIES
Under the UCC, a seller can make an express warranty and at least two implied warranties: (i) the implied warranty of fitness for a particular purpose; and (ii) the implied warranty of merchantability. See Perfetti v. McGhan Med.,
*12221. Breach of Express Warranty.
UCC § 2-313, which New Mexico has adopted, see
(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
(c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.
UCC § 2-313(1)(a)-(c). An express warranty does not need to include "formal words such as warrant or guarantee," and the seller does not need to have "a specific intention to make a warranty." UCC § 2-313(2).
Under New Mexico law, a seller expressly warrants goods in a commercial transaction when it (i) makes an affirmation of fact or promise to the buyer "which relates to the goods and becomes part of the basis of the bargain"; (ii) describes the goods in a way that "is made part of the basis of the bargain"; or (iii) provides a "sample or model which is made part of the basis of the bargain."
In Bellman v. NXP Semiconductors USA, Inc., for example, the Court considered whether, under New Mexico's express warranty standard, the defendants had made any express affirmations or representations to the plaintiffs concerning chemical supplies purchased. See
2. Breach of the Implied Warranty of Fitness for a Particular Purpose.
Under the UCC, it is the sale of goods that brings the implied-warranty provisions into operation. See *1223Ortiz v. Gas Co.,
Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.
3. Breach of the Implied Warranty of Merchantability.
New Mexico recognizes that the law implies the warranty of merchantability and that the implied warranty is independent of express warranties. See Int'l Paper Co. v. Farrar,
(1) Unless excluded or modified (Section 2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.
*1224(2) Goods to be merchantable must be at least such as:
(a) pass without objection in the trade under the contract description; and
(b) in the case of fungible goods, are of fair average quality within the description; and
(c) are fit for the ordinary purposes for which such goods are used; and
(d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and
(e) are adequately contained, packaged and labeled as the agreement may require; and
(f) conform to the promises or affirmations of fact made on the container or label if any.
(3) Unless excluded or modified (Section 2-316) other implied warranties may arise from course of dealing or usage of trade.
"[A] supplier breaches this warranty if the product is defective and is not fit for the ordinary purposes for which such product is used." Pac. Indem. Co. v. Therm-O-Disc, Inc.,
A supplier breaches the implied warranty of merchantability:
[1. If the goods sold would be rejected by someone knowledgeable in the trade for failure to meet the contract description]; [or]
[2. If goods sold in bulk are not of fair average quality for the type of goods described by the contract. The goods need not be the best quality but they must pass without objection in the trade]; [or]
[3. If the [goods] [products] are defective and are not fit for the ordinary purposes for which such [goods] [products] are used]; [or]
[4. If the goods do not run within variations permitted by the contract for the reason that there are wide differences in type, quality and quantity within delivered units and among all units involved]; [or]
[5. If the [goods] [products] are not adequately contained, packaged and labeled as required by the contract]; [or]
[6. If the [goods] [products] do not conform to the promises or statements made by the seller on the container or label]; [or]
[7. If the food or drink is unwholesome or unfit for human consumption].
Civ. UJI 13-1430. The directions for use of this instruction state: "Select the bracketed material which fits the actual issues and *1225evidence involved in the case. With this instruction, UJI 13-1429 must also be used. This list of items is not exclusive. Reference should be made to the Uniform Commercial Code 55-2-314 N.M. Stat. Ann. 1978 for further specifications." Civ. UJI 13-1430.
NEW MEXICO LAW REGARDING NEGLIGENCE
Generally, a negligence claim requires the existence of a duty from a defendant to a plaintiff, breach of that duty, which is typically based on a standard of reasonable care, and the breach being a cause-in-fact and proximate cause17 of the plaintiff's damages. See Coffey v. United States,
New Mexico courts have stated that foreseeability of a plaintiff alone does not end the inquiry into whether the defendant owes a duty to the plaintiff. See Herrera v. Quality Pontiac,
"As a general rule, an individual has no duty to protect another from harm." Edward C. v. City of Albuquerque,
"[T]he responsibility for determining whether the defendant has breached a duty owed to the plaintiff entails a determination of what a reasonably prudent person would foresee, what an unreasonable risk of injury would be, and what would constitute an exercise of ordinary care in light of all the surrounding circumstances." Herrera v. Quality Pontiac,
"A proximate cause of an injury is that which in a natural and continuous sequence [unbroken by an independent intervening cause] produces the injury, and without which the injury would not have occurred." Herrera v. Quality Pontiac,
NEW MEXICO LAW REGARDING STRICT LIABILITY
New Mexico has adopted the basis for products liability found in Restatement (Second) of Torts § 402A (1965). See Stang v. Hertz Corp.,
The policy underpinnings supporting imposition of strict liability on product manufacturers and suppliers include (1) ensuring that the risk of loss for injury resulting from defective products is borne by the suppliers, principally because they are in a position to absorb the loss by distributing it as a cost of doing business; (2) encouraging suppliers to select reputable and responsible manufacturers who generally design and construct safe products and who generally accept financial responsibility for injuries caused by their defective products; and (3) promoting fairness by ensuring that plaintiffs injured by an unreasonably dangerous product are compensated for their injuries.
*1227Smith ex rel. Smith v. Bryco Arms,
The policy of risk- or cost-distribution continues to serve as a primary basis for imposing strict products liability.... In addition to the cost-distribution rationale ... other courts have approved specifically the rationale that imposing strict liability relieves plaintiffs of the burden of proving ordinary negligence under circumstances in which such negligence is likely to be present but difficult to prove.... The third policy cited for the imposition of strict liability is that suppliers who otherwise might not be liable because of a passive role in the chain of supply should be encouraged to select reputable and responsible manufacturers who generally design and construct safe products and who generally accept financial responsibility for injuries caused by their defective products.... Fourth and finally, imposing strict products liability serves the interests of fairness.... The fairness rationale embodies a normative judgment that plaintiffs injured by an unreasonably dangerous product should be compensated for their injuries. At the heart of this judgment lies the conclusion that although the manufacturer has provided a valuable service by supplying the public with a product that it wants or needs, it is more fair that the cost of an unreasonable risk of harm lie with the product and its possibly innocent manufacturer than it is to visit the entire loss upon the often unsuspecting consumer who has relied upon the expertise of the manufacturer when selecting the injury-producing product.
To succeed on a cause of action brought under a theory of strict products liability, a plaintiff must prove five elements: (i) the product was defective; (ii) the product was defective when it left the hands of the defendant and was substantially unchanged when it reached the use or consumer; (iii) the product, because of the defect, was unreasonably dangerous to the use or consumer; (iv) the consumer was injured or was damaged; and (v) the product's defective condition was the proximate cause of the injury or damage. See Armeanu v. Bridgestone/Firestone North Am. Tire, L.L.C., No. CIV-05-619 JB/DJS,
Proof of a defect is required to succeed on a strict products liability claim under New Mexico law. See Perfetti v. McGhan Med.,
New Mexico courts have recognized that the theory of products liability is applicable to three defects: design, manufacturing, and marketing (warnings). See Morales v. E.D. Etnyre & Co.,
The jury instructions covering strict products liability are designed to encourage a risk-benefit calculation by defining "unreasonable risk of injury" in a way which requires the jury to balance meritorious choices for safety made by the manufacturer while minimizing the risk that the public will be deprived needlessly of beneficial products.
Smith ex rel. Smith v. Bryco Arms,
Pursuant to the learned-intermediary doctrine, the prescribing physician acts as a learned intermediary between a prescription drug manufacturer and the ultimate user, and the manufacturer satisfies its duty to warn by providing adequate warnings to the prescribing physician. See, e.g., Hill v. Searle Labs.,
The learned intermediary doctrine states that once a manufacturer warns a doctor about a drug's inherent dangers, it has fulfilled its legal duty to provide a warning. See Hall v. Merck, Sharp & Dohme,774 F.Supp. 604 , 605-06 (D. Kan.1991) (granting summary judgment to a drug manufacturer because it discharged its legal duty to plaintiff by warning prescribing physician of drug's inherent risks); Phelps v. Sherwood Med. Indus.,836 F.2d 296 , 301-03 (7th Cir. 1987). Under Kansas law, a plaintiff cannot prevail against a prescription drug manufacturer in a failure to warn case where the manufacturer warned the "learned intermediary" of the drug's inherent risks.
Wright v. Abbott Labs., Inc.,
"The overwhelming majority of jurisdictions to address this issue apply the learned intermediary doctrine to define a pharmaceutical company's duty to warn of risks associated with the use of a prescription drug." In re Norplant Contraceptive Prod. Liab. Litig.,
In Hines v. St. Joseph's Hospital, the plaintiff received a blood transfusion and later began treatment for what her doctor diagnosed as most likely a serum hepatitis. See
There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs. An outstanding example is the vaccine for the Pasteur treatment of rabies, which not uncommonly leads to very serious and damaging consequences when it is injected. Since the disease itself invariably leads to a dreadful death, both the marketing and the use of the vaccine are fully justified, notwithstanding the unavoidable high degree to risk which they involve. Such a product, properly prepared, and accompanied by proper directions and *1230warning, is not defective, nor is it unreasonably dangerous. The same is true of many other drugs, vaccines, and the like, many of which for this very reason cannot legally be sold except to physicians, or under the prescription of a physician. It is also true in particular of many new or experimental drugs as to which, because of lack of time and opportunity for sufficient medical experience, there can be no assurance of safety, or perhaps even of purity of ingredients, but such experience as there is justifies the marketing and use of the drug notwithstanding a medically recognizable risk. The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.
Hines v. St. Joseph's Hosp.,
In Jones v. Minnesota Mining & Manufacturing Co.,
Prescription drugs are likely to be complex medicines, esoteric in formula and varied in effect. As a medical expert, the prescribing physician can take into account the propensities of the drug, as well as the susceptibilities of his patient. His is the task of weighing the benefits of any medication against its potential dangers. The choice he makes is an informed one, an individualized medical judgment bottomed on a knowledge of both patient and palliative. Pharmaceutical companies then, who must warn ultimate purchasers of dangers inherent in patent drugs sold over the counter, in selling prescription drugs are required to warn only the prescribing physician, who acts as a learned intermediary between manufacturer and consumer.
Comment k thus provides what could serve either as a door leading to escape from strict liability or a trap door leading to the downfall of the unwary manufacturer. The key to the door which [the defendant] should have taken and which would have prevented the damage suffered by these plaintiffs is in the form of warnings. The assertion of liability in this case hinges on the warning which the manufacturer who wishes to avoid liability for an unavoidably unsafe product must provide and which [the defendant] chose to avoid.
In Perfetti v. McGhan Medical,
In this case the trial court could have ruled that there was no factual issue as to the adequacy or properness of defendant's warning as to the nature and extent of the danger, and that the warning was deficient as a matter of law. Although the surgeon knew generally of the danger of deflation, he had only minimum knowledge of delayed deflation at the time the prosthesis was implanted. The surgeon expected the prosthesis to last from 10-to-15 years and would not have used the prosthesis if he had been aware of the danger resulting from wear due to a fold in the prosthesis. A witness for defendant testified there is a 20-to-30 percent incidence of capsular contracture where there has been a subcutaneous mastectomy, that the manufacturer was aware that folding and rubbing of the prosthesis was foreseeable as a result of capsular contracture and that no warning was given as to this problem. Defendant got more than the evidence supported when the issue of the sufficiency of the warning was submitted to the jury.
In Serna v. Roche Labs., the plaintiff contended that he contracted Stevens-Johnson syndrome as a reaction to a medication that his physician prescribed. See
1. the warning must adequately indicate the scope of the danger; 2. the warning must reasonably communicate the extent or seriousness of the harm that could result from misuse of the drug; 3. the physical aspects of the warning must be adequate to alert a reasonably prudent person to the danger; 4. a simple directive warning may be inadequate when it fails to indicate the consequences that might result from failure to follow it and, most importantly, in the context of the present case; 5. the means to convey the warning must be adequate.
In Richards v. Upjohn Co.,
The issue, is still the foreseeability of the doctors' actions. If it was foreseeable that doctors might not consult the PDR or package inserts before using [the medication], a doctor's failure to do so does not constitute an independent intervening cause relieving a drug company, whose warnings were inadequate, from liability.
In Thom v. Bristol-Myers Squibb Co.,
Although the Wyoming Supreme Court has not to date acknowledged the learned intermediary doctrine, neither has it denied the doctrine; it simply has not ruled on the issue. We can and must safely assume that the delay, in the grandest traditions of all common-law courts, is due to the absence of a well presented and soundly argued case, rather than indicative of some invented implication that the doctrine does not exist.
Under New Mexico law, "[i]f, in light of all the circumstances of this case, [an adequate warning] [adequate directions for use] would have been noticed and acted upon to guard against the danger, a failure to give [an adequate warning]
*1234[adequate directions for use] is a cause of injury." Civ. UJI 13-1425 (brackets in original). Civ. UJI No. 13-1424 instructs that, "[w]ith the exception of proximate cause in warning cases, treated separately under UJI 13-1425, the general tort law definition of proximate cause is applicable in products liability cases. The first paragraph of this instruction is UJI 13-308 and the comment to that instruction is applicable." Civ. UJI 13-1424, cmt. See Weitz v. Lovelace, Health Sys., Inc.,
Under New Mexico law, the adequacy of warnings are usually a question of fact. See, e.g., Wilschinsky v. Medina,
Defendant's claim is based on the surgeon's general knowledge of the danger of deflation and that deflation could occur at any time. This mistakes the danger involved and, thus, the warning that was required. Defendant's duty was to warn of the nature and extent of the danger of a leak developing because of wear of the prosthesis at a fold resulting from capsular contracture. There was a factual question for the jury as to the surgeon's knowledge of this danger; the trial court could not have properly ruled on the surgeon's knowledge as a matter of law.
The Tenth Circuit has granted summary judgment under similar circumstances in which the plaintiff could not prove that an alleged failure-to-warn proximately caused the injury. See, e.g., Eck v. Parke, Davis & Co.,
Courts have also held that a prescription-drug manufacturer's alleged failure-to-warn a prescribing physician cannot be the proximate cause of injury unless the plaintiff can establish that a different warning would have changed the physician's decision to prescribe the drug, i.e., that, but for the alleged inadequate warning, the physician would not have prescribed the product. See, e.g., Wheat v. Pfizer, Inc.,
There are exceptions to the learned-intermediary doctrine, even in jurisdictions that recognize it. Restatement (Third) of Torts § 6(d) provides:
(d) A prescription drug or medical device is not reasonably safe due to inadequate instructions or warnings if reasonable instructions or warnings regarding foreseeable risks of harm are not provided to:
(1) prescribing and other health-care providers who are in a position to reduce the risks of harm in accordance with the instructions or warnings; or
(2) the patient when the manufacturer knows or has reason to know that health-care providers will not be in a position to reduce the risks of harm in accordance with the instructions or warnings.
Restatement (Third) of Torts § 6(d)(1)-(2). The Supreme Court of New Mexico has cited favorably to the Restatement (Third) of Torts. See, e.g., Baldonado v. El Paso Nat'l Gas Co.,
Warnings and instructions with regard to drugs or medical devices that can be sold legally only pursuant to a prescription are, under the "learned intermediary" rule, directed to health-care providers. Subsection (d)(2) recognizes that direct warnings and instructions to patients are warranted for drugs that are dispensed or administered to patients without the personal intervention or evaluation of a health-care provider. An example is the administration of a vaccine in clinics where mass inoculations are performed. In many such programs, health-care providers are not in a position to evaluate the risks attendant upon use of the drug or device or to relate them to patients. When a manufacturer supplies prescription drugs for distribution to patients in this type of unsupervised environment, if a direct *1237warning to patients is feasible and can be effective, the law requires measures to that effect.
Although the learned intermediary rule is generally accepted and a drug manufacturer fulfills its legal obligation to warn by providing adequate warnings to the health-care provider, arguments have been advanced that in two other areas courts should consider imposing tort liability on drug manufacturers that fail to provide direct warnings to consumers. In the first, governmental regulatory agencies have mandated that patients be informed of risks attendant to the use of a drug. A noted example is the FDA requirement that birth control pills be sold to patients accompanied by a patient package insert. In the second, manufacturers have advertised a prescription drug and its indicated use in the mass media. Governmental regulations require that, when drugs are so advertised, they must be accompanied by appropriate information concerning risk so as to provide balanced advertising. The question in both instances is whether adequate warnings to the appropriate health-care provider should insulate the manufacturer from tort liability.
Those who assert the need for adequate warnings directly to consumers contend that manufacturers that communicate directly with consumers should not escape liability simply because the decision to prescribe the drug was made by the health-care provider. Proponents of the learned intermediary rule argue that, notwithstanding direct communications to the consumer, drugs cannot be dispensed unless a health-care provider makes an individualized decision that a drug is appropriate for a particular patient, and that it is for the health-care provider to decide which risks are relevant to the particular patient. The Institute leaves to developing case law whether exceptions to the learned intermediary rule in these or other situations should be recognized.
When the content of the warnings is mandated or approved by a governmental agency regulation and a court finds that compliance with such regulation federally preempts tort liability, then no liability under this Section can attach.
Restatement (Third) of Torts § 6 cmt. e.
NEW MEXICO LAW REGARDING PUNITIVE DAMAGES
"Punitive damages 'are not compensation for injury.' " Gonzales v. Surgidev Corp.,
In determining punitive-damage awards, New Mexico courts apply a preponderance-of-the-evidence standard. See Jessen v. Nat'l Excess Ins.,
While the Supreme Court of New Mexico has not addressed punitive damages arising from automobile accidents, the Court of Appeals of New Mexico has upheld punitive damages awards when drivers used alcohol or drugs, drove while intoxicated and suffering from an extreme lack of sleep, and drove erratically or far beyond the speed limit. See DeMatteo v. Simon,
Defendant was driving in a reckless manner while intoxicated. He turned into slow moving on-coming traffic. He stated he was traveling three miles per hour and yet the force of his car's impact spun plaintiffs' car almost 90 degrees, blew out the left rear tire, bent the left rear wheel, ruptured the gas tank, and bent the left rear door and fender for a total damage exceeding $ 1,000.00. The collision caused both plaintiffs to receive personal injuries some of which are permanent and disabling.
The Court predicts that the Supreme Court of New Mexico would agree with these Court of Appeals of New Mexico cases. See Guidance Endodontics, LLC v. Dentsply Int'l, Inc.,
ANALYSIS
The Court will grant the MTD and dismiss the case with prejudice. The Court concludes that Nowell's warranty claims are untimely, because Nowell alleges that her physician used the Defendants' defective product to repair her hernia on October 27, 2010, but Nowell did not file her original Complaint until October 5, 2017, almost three years after the expiration of the four-year statute of limitations that governs express- and implied-warranty claims. See
I. THE APPLICABLE STATUTES OF LIMITATIONS BAR NOWELL'S WARRANTY, NEGLIGENCE, AND STRICT-LIABILITY CLAIMS.
Nowell's warranty, negligence, and strict-liability claims are untimely, because she filed her original Complaint almost three years after the expiration of the four-year statute of limitations period that governs express and implied warranty claims, and almost four years after the three-year limitations period that governs negligence and strict-liability claims. Furthermore, the discovery rule does not toll the applicable statutes of limitations, because the rule does not apply to warranty claims, and because Nowell had a cognizable tort injury over three years before she *1241filed her negligence and strict-liability claims. The Court therefore dismisses Nowell's claims pursuant to rule 12(b)(6).
A. NOWELL'S WARRANTY CLAIMS ARE UNTIMELY, BECAUSE SHE FILED THESE CLAIMS OUTSIDE THE FOUR-YEAR STATUTE OF LIMITATIONS PERIOD.
The Defendants argue that the UCC's four-year limitations period bars Nowell's breach-of-implied and express-warranty claims, because Nowell's physician implanted the Defendants' mesh in Nowell's abdomen on October 27, 2010, but Nowell did not assert these claims until October 5, 2017. See MTD at 7 (citing Amended Complaint ¶ 38, at 8). At the August 10, 2018, hearing, Nowell conceded that the UCC's statute of limitations bars her express warranty claim, see Tr. at 6:14-17 (Montclare); however, she maintains that the discovery rule tolls the limitations period for her implied warranty claim, because she did not discover that the Defendants' mesh was causing her injury until October 8, 2014, when Dr. Pollard advised her "for the first time that there was a problem with the mesh and that it had to be removed," MTD Response at 12-13. The Defendants assert that the discovery rule is inapplicable and thus cannot save Nowell's claims. See MTD Reply at 2.
The Court agrees with the Defendants that the statute of limitations bars Nowell's claims for breach of express and implied warranty. Pursuant to New Mexico's UCC, warranty claims are subject to a four-year statute of limitations. See
The Court further agrees with the Defendants that the discovery rule cannot save Nowell's breach of implied warranty claim. Section 55-2-725 describes the discovery rule's role in the breach of warranty context:
A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance, the cause of action accrues when the breach is or should have been discovered.
B. NOWELL'S NEGLIGENCE AND STRICT-LIABILITY CLAIMS ARE UNTIMELY, BECAUSE SHE FILED THESE CLAIMS OUTSIDE THE THREE-YEAR STATUTE OF LIMITATIONS PERIOD.
The Defendants contend that Nowell's negligence and strict-liability claims are likewise untimely, because such claims are subject to a three-year statute of limitations and because the Amended Complaint alleges cognizable tort injures that occurred more than three years before October 5, 2017, when Nowell filed her original Complaint. See MTD at 9. Nowell asserts that the discovery rule tolls the limitations period, because she did not discover that the Defendants' mesh was causing her injury until October 8, 2014, when Dr. Pollard for the first time advised her otherwise. See MTD Response at 12-13. The Defendants insist that tolling is unavailable to Nowell, because her Amended Complaint does not allege "reasonable diligence" sufficient "to 'establish[ ] a factual basis for tolling' pursuant to the discovery rule." MTD at 9 (alteration in MTD)(quoting Andrew v. Schlumberger Tech. Corp.,
The Court agrees with the Defendants that the statute of limitations bars Nowell's negligence and strict liability claims. Section 37-1-8 subjects claims sounding in tort to a three-year statute of limitations. See
Although Nowell concedes that she was skeptical about the mesh's safety before October 8, 2014, she nevertheless *1243asserts that the discovery rule tolls the limitations period, because she relied on Dr. Pollard's opinion that the mesh was not her symptoms' source and therefore did not discover that the Defendants' mesh was causing her injury until October 8, 2014, when Dr. Pollard advised her "for the first time that there was a problem with the mesh and that it had to be removed." MTD Response at 12-13. Hence, Nowell argues that it would have been unreasonable for her to assume that the mesh was the cause of her symptoms until October 8, 2014.21 See MTD Response at *124413-14. Further support for this position, Nowell asserts, is seen in Martinez v. Showa Denko, K.K., wherein the Court of Appeals of New Mexico stated that, under the discovery rule, the statute of limitations is triggered when the plaintiff " 'acquires knowledge of facts, conditions, or circumstances which would cause a reasonable person to make an inquiry leading to the discovery of the concealed cause of action.' " MTD Response at 13 (quoting Martinez v. Showa Denko, K.K.,
As a general rule, the mere fact that there is a divergence of medical opinions among physicians concerning the cause of an individual's ailment does not preclude or toll the running of the statute of limitations. As observed in American Law of Products Liability 3d, supra § 47:42, at 75, if "the plaintiff knows or *1245should have reasonably known of the general nature and extent of an injury, the running of a statute of limitations is not delayed if there are differing medical opinions regarding whether the plaintiff has incurred a particular medical condition." Although we are sympathetic to Plaintiff's situation, nothing in the discovery rule serves to suspend the running of the statute of limitations merely because there are divergent medical opinions concerning the nature or cause of her illness or injuries.
Martinez v. Showa Denko, K.K.,
II. NOWELL'S AMENDED COMPLAINT DOES NOT STATE PLAUSIBLE NEGLIGENCE, STRICT-LIABILITY, AND WARRANTY CLAIMS AGAINST DEFENDANTS.
Nowell's negligence, strict liability, and warranty claims assert only generalized allegations and not facts sufficient to survive analysis pursuant to rule 12(b)(6). When reviewing a motion to dismiss, the Court "must accept as true all of the factual allegations contained in the complaint." Bell Atl. Corp. v. Twombly,
A. NOWELL'S NEGLIGENCE CLAIM DOES NOT STATE A CAUSAL CONNECTION BETWEEN HER INJURIES AND THE DEFENDANTS' MESH.
The Defendants contend that, assuming they owed Nowell a duty, the Amended Complaint does not plead facts that allege a breach of that duty or proximate causation, as New Mexico law requires to support a negligence claim. See MTD at 10. Nowell insists that the Amended Complaint asserts each of the elements of a "claim[ ] sounding in common law negligence." MTD Response at 5. The Defendants maintain that the Amended Complaint does not identify any well-pled facts which suggest that the Defendants breached a duty that caused Nowell's injuries. See MTD Reply at 6.
The Court agrees that Nowell has not pled facts sufficient to support a negligence claim. "Generally, a negligence claim requires the existence of a duty from a defendant to a plaintiff, breach of that duty, which is typically based upon a standard of reasonable care, and the breach being a proximate cause and cause in fact of the plaintiff's damages." Herrera v. Quality Pontiac,
On October 8, 2014, in clinic Dr. Powell advised Ms. Nowell that there was no choice but to remove the Parietex mesh and replace it with a biological mesh.... It at was at this discussion that Ms. Nowell was told by the doctor that there was a problem with the mesh itself.
Amended Complaint ¶ 38, at 8. This paragraph does not include facts which infer that the Defendants' mesh caused Nowell's infection. Presumably, Dr. Pollard's purported "problem" was that the mesh was "infected and disintegrated (unincorporated)"; however, nowhere in this paragraph does Nowell allege facts to suggest that the opposite conclusion, i.e., that infection caused the mesh to disintegrate, is any less likely than her theory. Amended Complaint ¶ 38, at 8. Paragraph 39 describes Nowell's injuries but does not suggest a means through which they occurred. See Amended Complaint ¶ 39, at 9. Paragraph 39 also discusses Nowell's three scientific articles, none of which, the Court concludes, support Nowell's assertion "that the type of material that was used in Parietex mesh caused infection and disintegration which resulted in pain, exhaustion, and other injuries" or "that the type of surgical mesh as Parietex causes similar injuries as those sustained by Ms. Nowell." Amended Complaint ¶ 39, at 9-10. Instead, the articles merely highlight underlying risks common to all hernia repair surgeries. See supra n.1. For example, the first article, "Central Failures of Lightweight Monofilament Polyester Mesh Causing Hernia Recurrence: A Cautionary Note," examines "Parietex TCM," and its potential for tearing in thirty-six patients but asserts no causal connection to Nowell's main injury, that is, infection. See Petro et al., supra, at 155. Moreover, although the authors conclude that Parietex TCM "appears to have a high incidence of mechanical failure in the context of open incisional hernia repair," they add that "this limitation may ultimately be revealed as a weakness of all lightweight mesh." See Petro et al., supra, at 155. Additionally, although the second article, "Postoperative Mesh Infection -- Still a Concern in Laparoscopic Era," states that "the use of synthetic mesh can be complicated by infection," it lists a number of factors influencing mesh infection, including smoking, prior infection at the surgical site, and failure to maintain the surgical site's sterility. Narkhede et. al., supra, at 324-26. The third article, "Novel in Vitro Model for Assessing Susceptibility of Synthetic Hernia Repair Meshes to Staphylococcus aureus Infection Using Green Fluorescent Protein-labeled Bacteria and Modern Imaging Techniques," studies "Parietex Composite" and concludes that "[a] multifilament woven mesh (PE) had the highest degree of biofilm formation"; it does not suggest a causal link between a potential defect in the Defendants' mesh and Nowell's injuries. Ihab F. Halaweish et. al., supra, at 449. None of the articles demonstrate or even suggest that the Defendants' Parietex Composite Mesh caused Nowell's injury, or provide any factual support for Nowell's assertion that these articles prove that defendants' mesh "causes harmful bacterial infections." Amended Complaint ¶ 39, at 10.
Paragraph 40 includes two unsupported conclusions: that the mesh's "physical *1248structure" "caused trauma to Plaintiff's abdomen as it repeatedly came in contact with it," and that "the composition of the mesh itself caused and exacerbated infection since the materials used to construct the mesh were not chemically compatible to the Defendant's tissue." Amended Complaint ¶ 40, at 11. Notably, Nowell describes neither the chemical composition that led to the incompatibility nor the mechanism through which the mesh's "physical structure" caused trauma. Amended Complaint ¶ 40, at 11. Paragraph 46 concludes that the Defendants' mesh is "biologically incompatible with human tissue" which seems to suggest that all patients thus treated necessarily suffer infection, "including the plaintiff." Amended Complaint ¶ 46, at 12. Paragraph 47 first defines the words "degradation" and "fragmentation," and then concludes that "[t]he Product was unreasonably susceptible to degradation and fragmentation inside the body." Amended Complaint ¶ 47, at 12. Paragraph 49 concludes that "the Product ... did cause, serious medical problems, and in ... the Plaintiff ... catastrophic injuries." Amended Complaint ¶ 49, at 12. Paragraph 50 merely asserts that "the Product ... caused severe and irreversible injuries, conditions, and damage to ... the female Plaintiff named in the Complaint." Amended Complaint ¶ 50, at 12-13. Paragraph 51 states: "Such defects caused the Plaintiff to undergo additional surgeries which otherwise would not have been necessary." Amended Complaint ¶ 51, at 13. The Court notes that the word "cause," when included in an allegation, does not provide per se a means of connecting conduct with a resulting effect, such as an injury. It is a conclusion rather than a factual allegation. Hence, these paragraphs do not suggest that the Defendants' mesh caused Nowell's injuries.
The Court construes only three allegations in the Amended Complaint as representing facts germane to Nowell's negligence claim: (i) that Nowell had a hernia repair surgery using the Defendants' mesh on October 27, 2010; (ii) that six months later, in April, 2011, she had a second surgery to reinforce the mesh; (iii) that, on March 1, 2014, she underwent a CT scan that revealed "cysts in the area associated with the mesh"; and (iv) that, on October 20, 2014, she had a third surgery because of an abdominal wall infection, during which her physician removed the mesh from her first surgery. See Amended Complaint ¶ 38, at 8. Taken together, these facts -- even read liberally -- fall short of adequately alleging that the Defendant's mesh was a proximate cause of Nowell's later injuries. See Herrera v. Quality Pontiac,
B. NOWELL'S STRICT-LIABILITY CLAIMS DO NOT PLEAD A DEFECT WHICH SUGGESTS THAT THE DEFENDANTS' MESH CAUSED HER INJURY.
In addition to arguments about deficient causation, the Defendants assert *1249that Nowell has not alleged a specific defect sufficient to support her strict liability claims for design defect, manufacturing defect, and warning defect. See MTD at 12. Moreover, the Defendants add, Nowell has not alleged that a feasible design existed which lacked the design defect and would have prevented Nowell's injuries. See MTD at 12. Nowell insists that the Amended Complaint describes defects that created "an unreasonable risk of injury" and resulted in actual injury. MTD Response at 6 (quoting Smith ex rel. Smith v. Bryco Arms,
The Court agrees that Nowell's strict-liability claims do not identify a defect in the Defendants' mesh. To survive a motion to dismiss on a cause of action brought under a strict-products-liability theory, Nowell must allege facts that could satisfy five elements: (i) the product was defective; (ii) the product was defective when it left the Defendants' hands and was substantially unchanged when it reached her; (iii) the product, because of the defect, was unreasonably dangerous to her; (iv) she suffered injury; and (v) the product's defective condition was her injuries proximate cause. See Armeanu v. Bridgestone/Firestone North Am. Tire, LLC,
Nowell asserts that she "placed the Defendants on notice of her general strict liability claims," because her Amended Complaint alleges:
(1) the product was defective (See , Amended Complaint ¶¶ 38, 41, 42, 47, 50, 52), (2) the product was defective when it left Defendants' hands (See , ¶ 60), and it was substantially unchanged when it reached the consumer (See, ¶ 60); (3) that because of the defect the product was unreasonably dangerous to the consumer (See , ¶ 86); (4) that the consumer was injured or damaged (See , ¶¶ 38, 40); and (5) the defective product was the proximate cause of the injury or damage (See , ¶¶ 22, 23, 39, 47, 49, 50, 51).
MTD Response at 7. These averments are unpersuasive. Paragraph 38, which the Court analyzed above, states only that Dr. Pollard "removed an infected and disintegrated (unincorporated) Parietex mesh from Ms. Nowell's abdomen." Amended Complaint ¶ 38, at 8. Nowell provides no further description of the Defendants' mesh, and the mesh's ultimate state of disintegration says nothing about potential defects that existed at the time of Nowell's October, 2010, surgery. Paragraphs 41 and 42 conclude that "[t]he disintegration and misshapening [sic] and infection of the Parietex Mesh(tm) occurred because the product was unsafe and defective," and that the mesh's materials "were not strong and resilient enough to prevent this disintegration and misshapening [sic]," but, again, neither paragraph suggests a defect that could have caused the mesh's disintegration. Amended Complaint ¶¶ 41-42, at 11. Paragraph 47, which the Court analyzed above, concludes that Nowell suffered injuries because "[t]he Product was unreasonably susceptible to degradation and fragmentation inside the body" based *1250solely on how the FDA defines these terms; it does not describe a defect that could lead to unforeseen degradation and fragmentation. Amended Complaint ¶ 47, at 12. Paragraph 50 includes a litany of conclusory allegations regarding the mesh's failure rates and tendency to cause injury, but, again, does not present a defect that could lead to the mesh's failure and resultant injury. See Amended Complaint ¶ 50, at 12-13. Paragraph 52 purports to detail "[t]he specific nature of the product's defects," but then vaguely asserts only that the mesh's design facilitates bacteria growth on the mesh itself, thereby causing "immune reactions and subsequent tissue breakdown"; it does not describe design aspects that could encourage bacterial growth. Amended Complaint ¶ 52, at 13. Paragraph 52 asserts also that "[b]iomechanical issues ... including, but not limited to, the propensity of the product to disintegrate inside the body," and to cause inflammation, pain, and injury "when the mesh is implaning [sic] according to the manufacturer's instructions," but provides no further insight into these alleged issues. Amended Complaint ¶ 52, at 13. Finally, Nowell's conclusory allegation that the Defendants' mesh "deviated materially from the Defendants' design and manufacturing specifications," Amended Complaint ¶ 125, at 29, is merely a "formulaic recitation of the elements of [the] cause of action" and lacks the corresponding factual support to suggest how the mesh departed from its intended design, Ashcroft v. Iqbal,
Moreover, Nowell has not alleged that, when she underwent her surgery, an alternative mesh existed which lacked the design defect and therefore would have prevented her injuries. Although the Amended Complaint states that "[s]afer and more effective alternatives to hernia mesh exist," it merely alleges surgical techniques alternative to the use of hernia mesh altogether, specifically the "Shouldice Repair, McVay Repair, Bassini Repair, and Desarda Repair," but not alternative designs to the Defendants' mesh. Amended Complaint ¶ 26, at 6. The Court agrees with the Second Circuit's conclusion that "[a] design-defect claim will not stand if the only alternative is an outright ban." S.F. v. Archer Daniels Midland Co.,
Nowell's failure-to-warn claim requires her to prove that the Defendants provided her with a defective warning, or no warning at all, and that this warning, or lack of warning, caused her injury. See Richards v. Upjohn Co.,
Defendants did not provide sufficient or adequate warnings regarding ... [t]he Product's propensities to disintegrate *1251... degrad[e], fragment[ ], ... and/or creep ... the Product's inelasticity ... the rate and manner of mesh erosion ... the risk of chronic inflammation... chronic infections ... scarring ... recurrent, intractable pain ... [t]he need for corrective or revision surgery ... [t]he hazards associated with the Product [and] ... [the Products defects described herein.
Amended Complaint ¶ 129, at 30-31. These concerns are too generalized to assist the Court in evaluating the sufficiency of the Defendants' warnings, nor do they plausibly assert that the Defendants were aware of the specific defect and thus could have warned Nowell in such a way that could have prevented her injuries. Indeed, many of the risks that Nowell mentions are precisely the risks that the FDA considers attendant to all hernia repairs surgeries. See supra n.1. Moreover, Nowell does not allege that any of the above warnings would have prevented Dr. Pollard from using the Defendants' mesh to repair Nowell's hernia. Although Nowell asserts that the "Defendants did not adequately warn the Plaintiff," Amended Complaint ¶ 129, at 30, and that her injuries "would not have occurred if adequate warning and instruction had been provided," Amended Complaint ¶ 138, at 33, the Amended Complaint does not allege that Dr. Pollard was not aware of the risk associated with the Defendants mesh -- risks seemingly attendant to all hernia repair series -- or that Dr. Pollard would have not used the Defendants' mesh had the Defendants provided him with Nowell's proposed warnings. Furthermore, pursuant to the learned-intermediary doctrine, the Defendants' duty to warn extended only to Nowell's treating physicians.25 See *1255Wright v. Abbott Labs., Inc.,
Nowell's lean assertions do not sufficiently allege defective design, manufacture, or warning, and she does not support them with facts sufficient to "nudge[ ] [the] claims across the line from conceivable to plausible." Bell Atlantic Corp. v. Twombly,
C. NOWELL'S IMPLIED-WARRANTY CLAIM DOES NOT PLEAD FACTS TO SUGGEST THAT THE DEFENDANTS' MESH WAS EITHER UNFIT FOR ITS PURPOSE OR FOR MARKET.
The Defendants contend that the Amended Complaint neither alleges a claim for breach of implied warranty of fitness for a particular purpose nor facts pertaining to each element of Nowell's implied-warranty-of-merchantability claim, which are the only claims for breaches of implied warranties that New Mexico's UCC permits. See MTD at 20 (citing
The Court agrees that Nowell has not pled an implied-warranty claim for either fitness or merchantability. Under the UCC, a seller can make two implied warranties: (i) the implied warranty of fitness for a particular purpose; and (ii) the implied warranty of merchantability. The sale of goods brings the implied-warranty provisions into operation. See Ortiz v. Gas Co.,
At the outset, although the Amended Complaint does not specify under which of New Mexico's two implied warranty theories Nowell brings her claims, the Amended Complaint alleges that the Defendants' mesh was not "fit for the ordinary purposes for which" it was sold, Amended Complaint ¶ 152, at 35, which is a phrase included in the statutory definition of "merchantable,"
*1257
(2) Goods to be merchantable must be at least such as:
(a) pass without objection in the trade under the contract description; and
(b) in the case of fungible goods, are of fair average quality within the description; and
(c) are fit for the ordinary purposes for which such goods are used; and
(d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and
(e) are adequately contained, packaged and labeled as the agreement may require; and
(f) conform to the promises or affirmations of fact made on the container or label if any.
The Court will dismiss Nowell's claim for breach of the implied warranty of merchantability for the same reasons as the Court will dismiss her strict-liability and negligence claims -- it does not sufficiently allege a defect that rendered the Defendants' mesh "unreasonably dangerous" and caused her injuries. Perfetti v. McGhan Med.,
Additionally, the Court will deny Nowell's request to amend further the Amended Complaint once more information "becomes available through the discovery process." MTD Response at 10. Nowell has filed already two amendments to her original Complaint, and the Court doubts highly whether Nowell can remedy her deficient factual allegations with a fourth bite at the apple. See Frank v. U.S.W., Inc.,
III. THE COURT WILL DISMISS NOWELL'S PUNITIVE DAMAGES CLAIMS.
Punitive damages require conduct that is "maliciously intentional, fraudulent, oppressive, or committed recklessly or with a wanton disregard to the plaintiffs' rights." Loucks v. Albuquerque Nat'l Bank,
IT IS ORDERED that the requests in the Defendants' Motion to Dismiss, filed March 23, 2018 (Doc. 27), are granted.
Footnotes
372 F. Supp. 3d 1166 (Nowell v. Medtronic Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.