Whalen v. Stryker Corp.
2011 U.S. Dist. LEXIS 23303
E.D. Ky.2011Background
- Whalen underwent June 29, 2006 arthroscopic shoulder surgery with a Stryker pain pump instillation.
- Plaintiff alleges the pump delivered toxic anesthetic causing glenohumeral chondrolysis and irreversible shoulder damage.
- Whalen did not discover the alleged injury cause until FDA’s November 13, 2009 Postmarket Drug Safety Bulletin.
- She filed suit November 11, 2010 asserting multiple claims, including negligence and strict liability, with tolling arguments.
- Stryker moved to dismiss for failure to state a claim; Whalen agreed to dismiss some warranty and Kentucky Consumer Protection Act claims.
- Court addressed statute of limitations tolling, Rule 9(b) fraud pleading, and punitive damages, denying some parts and granting others.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the discovery rule toll the statute of limitations for Whalen's negligence/strict liability claims? | Whalen's injury was discovered on 11/13/2009 via FDA bulletin, tolling the period. | No tolling because she did not investigate or know causation within period; claims barred. | Claims not time-barred; discovery rule tolled until FDA bulletin and timely filing within one year. |
| Are Whalen's fraud-related claims sufficiently pled under Rule 9(b)? | Complaint provides details on misrepresentations, actors, and schemes; sufficient notice. | Insufficient specificity about statements, who made them, and timing. | Sufficient particularity; fraud claims survive Rule 9(b) scrutiny. |
| Should punitive damages be available based on the complaint's allegations? | Allegations show intentional misrepresentation and gross negligence constituting punitive basis. | Plaintiff must prove clear and convincing evidence of required culpability. | Complaint supports punitive damages; denial of dismissal of punitive damages claim. |
| Should claims for breach of warranty and Kentucky Consumer Protection Act be dismissed? | Not applicable; tolling and product liability considerations involve other theories. | Dispositive merits; these claims fail on pleadings or coverage. | Claims for express/implied warranty and Kentucky Consumer Protection Act are dismissed. |
Key Cases Cited
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (pleading must be plausible, not merely conceivable)
- Wiseman v. Alliant Hospitals, Inc., 37 S.W.3d 709 (Ky. 2000) (discovery rule tolls limitations when injury cause is unknown)
- Fluke Corp. v. LeMaster, 306 S.W.3d 55 (Ky. 2010) (distinguishable from case where discovery available at summary judgment stage)
- Louisville Trust Co. v. Johns-Manville Prods. Corp., 580 S.W.2d 497 (Ky. 1979) (discovery rule starts when plaintiff knows injury and possible cause by defendant)
- Blanton v. Cooper Industries, Inc., 99 F.Supp.2d 797 (E.D.Ky.2000) (discusses discovery and diligence in recognizing product-related injuries)
- Jenkins v. McKeithen, 395 U.S. 411 (U.S. 1969) (notice standard and favorable view of pleading in light of det.reset)
- U.S. ex rel. Bledsoe v. Community Health Systems, Inc., 501 F.3d 493 (6th Cir. 2007) (fraud claims evaluated with leniency for lack of discovery)
- Association of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545 (6th Cir. 2007) (Rule 9(b) particularity balanced with Rule 8 notice requirements)