United States District Court, S.D. West Virginia, Beckley Division
MEMORANDUM OPINION AND ORDER
C. BERGER UNITED STATES DISTRICT JUDGE.
Court has reviewed the Defendant Cordis Corporation's
Motion to Dismiss (Document 6) and Memorandum of Law
in Support of Defendant Cordis Corporation's Motion to
Dismiss (Document 7) together with the
Plaintiff's Complaint at Law for Money Damages and
Demand for Jury Trial (Document 1-1). For the reasons
stated herein, the Court finds that the motion to dismiss
should be granted.
Plaintiff, Nicholas Hendricks, born on August 16, 1994,
initiated this lawsuit with the filing of a complaint in the
Circuit Court of Raleigh County, West Virginia, on September
21, 2018. The matter was removed to this Court on October 26,
2018, based on diversity jurisdiction.
Plaintiff alleges that on May 29, 2009, he was implanted with
an OptEase Filter, which was designed, researched, developed,
manufactured, tested, marketed, advertised, promoted,
distributed and sold by the Defendants, as a
temporary/retrievable device to prevent, among other things,
recurrent pulmonary embolism via placement in the vena cava.
(Comp. Paragraphs 9, 18). The Plaintiff was told by his
physician that the filter would be left in for one week and
removed in an outpatient procedure. On June 4, 2009, the
Plaintiff underwent a procedure to remove the OptEase Filter,
but that procedure had to be terminated because of the
migration inferiorly of the filter. The Plaintiff claims that
the OptEase Filter was defective and that the Defendants
failed to warn and disclose to physicians and patients that
the filter was subject to not being removed or retrieved,
which placed patients at risk of injury due to breakage and
migration or risk of perforation and damage to the vena cava
wall. (Comp. Paragraphs 19, 22). The Plaintiff asserted
claims of strict product liability and negligence.
Defendant, Cordis, filed its motion to dismiss pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure and the
memorandum in support of the motion on November 14, 2018. To
date, the Plaintiff has not filed a response. The matter is
overripe for ruling.
motion to dismiss filed pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which
relief can be granted tests the legal sufficiency of a
complaint or pleading. Francis v. Giacomelli, 588
F.3d 186, 192 (4th Cir. 2009); Giarratano v.
Johnson, 521 F.3d 298, 302 (4th Cir. 2008). Federal Rule
of Civil Procedure 8(a)(2) requires that a pleading contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). Additionally, allegations “must be simple,
concise, and direct.” Fed.R.Civ.P. 8(d)(1).
“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,' but it
demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp v. Twombly, 550 U.S.
544, 555 (2007)). In other words, “a complaint must
contain “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555.
Moreover, “a complaint [will not] suffice if it tenders
naked assertions devoid of further factual
enhancements.” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 557) (internal
quotation marks omitted).
Court must “accept as true all of the factual
allegations contained in the complaint.” Erickson
v. Pardus, 551 U.S. 89, 93 (2007). The Court must also
“draw[ ] all reasonable factual inferences from those
facts in the plaintiff's favor.” Edwards v.
City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).
However, statements of bare legal conclusions “are not
entitled to the assumption of truth” and are
insufficient to state a claim. Iqbal, 556 U.S. at
679. Furthermore, the court need not “accept as true
unwarranted inferences, unreasonable conclusions, or
arguments.” E. Shore Mkts., v. J.D. Assocs. Ltd.
P'ship, 213 F.3d 175, 180 (4th Cir. 2000).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice . . . [because courts] ‘are not bound to accept
as true a legal conclusion couched as a factual
allegation.'” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555).
survive a motion to dismiss, “a complaint must contain
sufficient factual matter, accepted as true, ‘to state
a claim to relief that is plausible on its face.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). In other words, this “plausibility
standard requires a plaintiff to demonstrate more than
‘a sheer possibility that a defendant has acted
unlawfully.'” Francis, 588 F.3d at 193
(quoting Twombly, 550 U.S. at 570). A plaintiff
must, using the complaint, “articulate facts, when
accepted as true, that ‘show' that the plaintiff
has stated a claim entitling him to relief.”
Francis, 588 F.3d at 193 (quoting Twombly,
550 U.S. at 557). “Determining whether a complaint
states [on its face] a plausible claim for relief [which can
survive a motion to dismiss] will . . . be a context-specific
task that requires the reviewing court to draw on its
judicial experience and common sense.” Iqbal,
556 U.S. at 679.
Defendant argues that the Plaintiff's claims are subject
to West Virginia's two-year statute of limitations for
personal injury and are, therefore, barred. Assuming the
allegations of the complaint to be true, the Plaintiff was
born on August 16, 1994, and was fourteen (14) years old on
June 4, 2009, when he underwent the procedure to remove the
OptEase Filter. He alleges that due to the defective
condition of the filter, the procedure was terminated and he
was required to undergo a second procedure. No. date for the
second procedure is alleged.
Virginia, an action for personal injury for which no
limitation is otherwise prescribed must be brought
“within two years next after the right to bring the
same shall have accrued.” W.Va. Code § 55-2-12(b).
West Virginia applies the two-year statute of limitations to
both strict product liability and negligence claims (See
Fugate v. Borg Textile Corp 881 F.2d 1069 (4th Cir.
1989)). Generally, the statute of limitations begins to run
when the tort occurs.
“In those instances where the patient is immediately
aware that something went wrong, the statute of limitations
begins to run upon the plaintiff's awareness of adverse
results of medical treatment. In such cases… the
statute of limitations starts running with the
plaintiff's knowledge of the fact that something went