56 F. Supp. 3d 1222
N.D. Ala.2014Background
- In Feb 2004 Robert Collins had a Composix Kugel Patch implanted to repair a hernia; defendants are Davol, Inc. and C.R. Bard, Inc.
- Davol issued recalls in 2005–2007 for Kugel Patches due to memory-recoil ring failures; plaintiffs allege defendants knew of the defect but continued marketing without adequate warnings.
- In April 2012 Collins sought treatment for worsening abdominal pain; Dr. Melvin diagnosed a recurrent hernia and noted palpable mesh.
- On August 13, 2012 surgery, Dr. Melvin found the Kugel Patch had buckled, the recoil ring fractured, and bowel adhesions causing re‑herniation; Collins underwent additional surgery and ongoing injuries.
- Plaintiffs sued in July 2014 asserting fraud, misrepresentation by omission, negligence, failure to warn, emotional distress, loss of consortium, ADTPA and AEMLD claims, and breach of implied warranty; defendants moved to dismiss primarily on statute‑of‑limitations and choice‑of‑law grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Accrual of fraud/misrepresentation claims | Collins: fraud accrued Aug 13, 2012 when ring fracture was discovered, so suit (Jul 2014) timely | Defs: Collins was on notice by April 2012 (symptoms/doctor visit) or earlier from public disclosures, so claims untimely | Denied dismissal — factual question when plaintiff reasonably discovered fraud; plausible pleading that discovery occurred Aug 13, 2012 |
| ADTPA claim timeliness | Collins: (did not meaningfully oppose) | Defs: ADTPA has 1‑year limitations and 4‑year repose; claim untimely regardless | Granted dismissal — claim abandoned and time‑barred (also extinguished by 4‑year repose) |
| Negligence, failure to warn, AEMLD, loss of consortium, negligent infliction of emotional distress | Collins: claims accrued Aug 13, 2012 | Defs: injury (and accrual) occurred by April 2012 when hernia and palpable mesh were diagnosed; 2‑year limitations expired before suit | Granted dismissal — non‑fraud torts accrued by April 2012, so time‑barred; negligent emotional distress subsumed by negligence; loss of consortium barred |
| Breach of implied warranty / choice of law | Collins: argued Alabama (or Rhode Island) law could apply | Defs: lex loci contractus — Tennessee law governs (implant performed in Tennessee); Tennessee Products Liability Act has 10‑year repose from purchase (implant 2004) | Granted dismissal — TPLA repose bars warranty/product claims (and untimely under Alabama alternatives) |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (plausibility standard for pleading)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (complaint must allege more than labels and conclusions)
- Wheeler v. George, 39 So.3d 1061 (Ala. 2009) (fraud accrual: discovery rule and fact question for jury)
- Pfizer, Inc. v. Farsian, 682 So.2d 405 (Ala. 1996) (medical‑device tort accrues when device fails and injures recipient)
- St. Paul Fire & Marine Ins. Co. v. ERA Oxford Realty Co., 572 F.3d 893 (11th Cir. 2009) (forum choice‑of‑law principles: apply forum state rules)
- AALAR Ltd., Inc. v. Francis, 716 So.2d 1141 (Ala. 1998) (negligent infliction of emotional distress not an independent tort separate from negligence)