Opinion
3:22-cv-00448-HZ
10-26-2022
DIANE MILLIGAN, an individual, Plaintiff, v. C.R. BARD, INC., a New Jersey corporation, Defendant.
Derek C. Johnson Johnson Johnson Larson & Schaller P.C. Reagan Downing Moll Law Group Attorneys for Plaintiff Allison Ng Marcella Ducca Greenberg Traurig, P.A Diane R. Lenkowsky Nancy M. Erfle Gordon Rees Scully Mansukhani LLP Attorneys for Defendant
Derek C. Johnson
Johnson Johnson Larson & Schaller P.C.
Reagan Downing
Moll Law Group
Attorneys for Plaintiff
Allison Ng
Marcella Ducca
Greenberg Traurig, P.A
Diane R. Lenkowsky
Nancy M. Erfle
Gordon Rees Scully Mansukhani LLP
Attorneys for Defendant
OPINION & ORDER
MARCO A. HERNÁNDEZ, DISTRICT JUDGE
Plaintiff Diane Milligan brings product liability claims against Defendant C.R. Bard, Inc., alleging negligence for design defects and negligence for failure to warn. Before the Court is Defendant's motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). For the reasons below, the Court grants Defendant's motion.
BACKGROUND
Defendant is a New Jersey corporation that develops, manufactures, and sells medical devices. Am. Compl. ¶ 4, ECF 18. Of relevance to this case, Defendant manufactures and distributes transvaginal mesh devices across the United States, including the Align TO Transobturator Urethral Support System (“mesh device”). Am. Compl. ¶ 4. This mesh device is considered a Class II medical device and is targeted to women who suffer from stress urinary incontinence. Am. Compl. ¶ 10-11.
Plaintiff was implanted with the mesh device to treat her urinary continence on September 7, 2011. Am. Compl. ¶ 46. Approximately four years after implantation, Plaintiff began experiencing complications, including urinary tract infections, incontinence, and severe pelvic and abdominal pain. Am. Compl. ¶ 47. Plaintiff sought medical care for the pain and abnormal bleeding and ultimately had a hysterectomy, without removal of the mesh device, on August 20, 2014. Pl.'s Resp. at 2, ECF 23. Following the procedure, Plaintiff's pain subsided. Pl.'s Resp. at 2.
In early 2021, Plaintiff's symptoms returned. Pl.'s Resp. at 2. On April 28, 2021, she sought care from her physician who referred her to a gynecologist to investigate her pain and evaluate the mesh device. Pl.'s Resp. at 2. On August 16, 2021, Plaintiff underwent a procedure to remove the mesh device. Am. Compl. ¶ 48. Plaintiff continued to experience pain after the removal. Am. Compl. ¶ 49.
Plaintiff filed this action on March 22, 2022, alleging that Defendant was negligent in designing the mesh device and negligent in failing to warn Plaintiff and her implanting physician about the dangers associated with the mesh device. Am. Compl. ¶¶ 71, 88. Defendant moves to dismiss Plaintiff's Complaint for failure to state a claim upon which relief can be granted.
STANDARDS
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). When evaluating the sufficiency of a complaint's factual allegations, the court must accept all material facts alleged in the complaint as true and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012). A motion to dismiss under Rule 12(b)(6) will be granted if a plaintiff alleges the “grounds” of his “entitlement to relief” with nothing “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)[.]” Id. (citations and footnote omitted).
To 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). A plaintiff must “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In other words, a complaint must state a plausible claim for relief and contain “well-pleaded facts” that “permit the court to infer more than the mere possibility of misconduct[.]” Id. at 679.
DISCUSSION
Plaintiff brings two claims for negligence against Defendant, alleging design defects and a failure to warn. Defendant asserts that Plaintiff's claims should be dismissed because they are time-barred by both the two-year statute of limitations provided by Or. Rev. Stat. § (“O.R.S”) 30.905(1) and the ten-year statute of repose provided in O.R.S. 30.905(2)(a). Plaintiff argues that her claims are timely because she filed her claim within two years of discovering her injury from the mesh device and because Oregon House Bill (H.B.) 4212 tolled the statute of repose. The Court finds that Plaintiff's claims are time-barred under the statute of repose and grants Defendant's motion to dismiss.
Defendant also argues that Plaintiff's Complaint should be dismissed because 1) it is a shotgun pleading and 2) there are substantive failures in both negligence claims. Because the Court finds that Plaintiff's Complaint is time-barred under Oregon's statute of repose, the Court does not address Defendant's other arguments in favor of dismissal.
I. Applicable Law
The Court has jurisdiction over this case based on diversity of citizenship between Plaintiffs and Defendants. 28 U.S.C. § 1332. Accordingly, the Court applies federal procedural law, but must apply the substantive law, including statutes of limitations, of the state in which it sits. SeeGuar. Tr. Co. of N.Y. v. York, 326 U.S. 99, 107 (1945) (addressing conflicts of laws in federal diversity cases and holding that statutes of limitation are matters of substantive state law). The Supreme Court's decision in Guaranty Trust ensures that “in all cases where a federal court is exercising jurisdiction solely because of the diversity of the citizenship of the parties, the outcome of the litigation must be substantially the same . . . as it would be if tried in a [s]tate court.” Id. at 109. Most relevant here, “a statute that would completely bar recovery in a suit if brought in a [s]tate court bears on a [s]tate-created right[.] As to consequences that so intimately affect recovery or non-recovery a federal court in a diversity case should follow [s]tate law.” Id. at 110. Because the Court is adjudicating a state substantive issue based on diversity of the parties, it must apply Oregon's statute of limitations and statute of repose.
II. Statute of Repose
Statutes of repose establish maximum time limits to commence an action, regardless of when the injury is discovered or any other circumstances that might extend a statute of limitations. Cannon v. Oregon Dep't of Just., 288 Or.App. 793, 798, 407 P.3d 883, 888 (2017). Unlike statutes of limitation, statutes of repose are generally not subject to equitable tolling. Balam-Chuc v. Mukasey, 547 F.3d 1044, 1048 (9th Cir. 2008). Unless allowed by statute, a statute of repose cannot be extended regardless of any unfairness to the plaintiff. Cannon, 288 Or.App. at 799 . “When the ultimate repose period has expired, the claim is extinguished and no legally cognizable injury exists.” Id.
The statute of repose for a product liability action in Oregon is ten years. O.R.S. 30.905(2)(a) (“A product liability civil action for personal injury or property damage must be commenced before... Ten years after the date on which the product was first purchased for use or consumption.”). A “product liability civil action” in this section means all claims arising out of a “design, inspection, testing, manufacturing or other defect in a product” and includes claims based on negligence, strict liability, and breach of warranty. Simonsen v. Ford Motor Co., 196 Or.App. 460, 466, 102 P.3d 710, 714-15 (2004). Both parties in this case agree that the statute of repose is ten years.
Plaintiff was implanted with the mesh device on September 7, 2011. Am. Compl. ¶ 46. That is the “date on which the product was first purchased for use or consumption” under O.R.S. 30.905(2)(a), meaning Plaintiff had until September 7, 2021 to bring any claims for product liability. Plaintiff did not file these claims until March 22, 2022, so, unless the statute of repose was tolled, her claims are time-barred. Plaintiff concedes that she did not bring her claims within the original statute of repose but contends that Section 7 of H.B. 4212 tolled the statute of repose and extended her deadline to March 31, 2022. Defendant counters that Section 8 of H.B. 4212 repealed Section 7 of H.B. 4212 on December 31, 2021, so after that date and at the time Plaintiff filed her complaint, the extension no longer existed and the claims were time-barred.
III. House Bill 4212
H.B. 4212 was passed in June 2020 in response to the COVID-19 pandemic. H.B. 4212, 80th Leg., 1st Spec. Sess. (Or. 2020). Among other provisions, Section 7 of H.B. 4212 extended time limitations for commencing civil actions, if the expiration of the time to commence an action fell within a governor-declared state of emergency due to COVID-19, “to a date 90 days after the [state of emergency] declaration and any extension is no longer in effect.” Id. § 7.
Specifically, Section 7(1) applies to: “(a) Time periods for commencing an action established in ORS chapter 12; (b) The time period for commencing an action for wrongful death established in ORS 30.020; (c) The time period for commencing an action or giving a notice of claim under ORS 30.275; and (d) Any other time limitation for the commencement of a civil cause of action or the giving of notice of a civil claim established by statute.” Id. § 7(2) (emphasis added). Section 8(1) of H.B. 4212 is a sunset provision that triggered an automatic repeal of Sections 6 and 7 on December 31, 2021. Id. § 8(1).
Oregon State Senate Bill (S.B.) 813 was passed in 2021 and amended Section 7 of H.B. 4212 to clarify that the state of emergency began on March 8, 2020, so claims that expired on or after that date were eligible for the time extension. S.B. 813 § 1(4), 81st Leg., Reg. Sess. (Or. 2021). The state of emergency was extended several times and ultimately rescinded on April 1, 2022 by Executive Order 22-03.
Plaintiff's claim falls within the parameters of Section 7 because, under the statute of repose, the time to commence her action expired September 7, 2021, which was during the ongoing state of emergency. However, S.B. 813 did not amend Section 8, the automatic repeal provision, and the parties dispute whether Plaintiff's March 22, 2022 filing date is beyond the extension granted by H.B. 4212. Plaintiff argues that she had until March 31, 2022, ninety days after Section 7 was repealed on December 31, 2021, to file. Defendant argues that Plaintiff only received an extension until December 31, 2021, and because she filed after Section 7 was repealed, any extension of the statute of repose no longer applied. Ultimately, unless H.B. 4212's ninety-day extension applied after Section 7 was repealed by Section 8, Plaintiff's claims are time-barred.
The question here is whether the extension in Section 7 of H.B. 4212 and the repeal date in Section 8 establish a final deadline of December 31, 2021 to commence claims, or if plaintiffs have ninety days after December 31, 2021 to bring eligible claims. To date, this issue has not been addressed by this Court or by the Oregon state courts of appeal. See Nat'l Sur. Corp. v. TIG Ins. Co., No. 3:21-CV-00266-HZ, 2022 WL 3683730 (D. Or. Aug. 25, 2022) (does not address December 31, 2021 repeal date; the plaintiff filed action before that deadline); Crooker v. City of Portland, No. 3:20-CV-01961-IM, 2021 WL 3823203 (D. Or. Aug. 26, 2021) (same); Colton v. Walmart, Inc., No. 3:20-CV-01895-JR, 2021 WL 2008809 (D. Or. Apr. 7, 2021), report and recommendation adopted, No. 3:20-CV-01895-JR, 2021 WL 2004776 (D. Or. May 19, 2021) (same).
Where there is no clear precedent, the court uses a three-part statutory interpretation framework to determine the intent of the legislature in drafting the statute at issue. State v.Gaines, 346 Or. 160, 164-65, 206 P.3d 1042, 1046 (2009). First, the court examines the text and context of the statute. Id. If the intent is obvious after step one, no further inquiry is necessary. Id. If the intent is not obvious after step one, or if it would be useful to the court's analysis, the court may consult legislative history proffered by the parties. Id. Finally, if the legislature's intent is still unclear, the court may use general maxims of statutory construction to resolve any uncertainty. Id.
Here, the Court need not look beyond the text and context of the statute to interpret the legislature's intent. Section 8(1) states in full: “Sections 6 and 7 of this 2020 special session Act are repealed on December 31, 2021.” There is no language tying the repeal date to the end of the state of emergency. There is also no language tying the ninety-day extension to the repeal of Section 7. Based on plain language, Section 7 of H.B. 4212 was repealed on December 31, 2021, and no extensions of times to commence civil actions are available beyond that date.
Expanding the analysis to include context does not change the Court's interpretation. Other sections of H.B. 4212 contain repeal provisions that are tied to the end of the state of emergency rather than to a firm date. Flanders v. WinCo Foods LLC, No. 22CV11032 at 4 (Or. Cir. Sept. 9, 2022) (citing Sect. 2; Sect. 47); Mouton v. Tri-Cty. Metro. Transp. Dist. of Oregon, No. 22CV06834 at 3 (Or. Cir. June 8, 2022) (same). This demonstrates that the legislature could have tied the repeal of Section 7 to the end of the state of emergency but chose not to. The legislature also could have modified Section 8 when it modified Section 7 with S.B 813, but again chose not to. S.B. 813 clarified the beginning of Section 7's applicability but did not address the specific repeal date. Accordingly, the “obvious interpretation of HB 4212. is that the law expanded the time to commence an action that otherwise would have expired during. a declaration of a state of emergency to a date ninety days after the declaration. but not beyond December 31, 2021.” Flanders, No. 22CV11032 at 3.
Three of the four state circuit court cases that have examined this issue have interpreted the repeal provision similarly and found that December 31, 2021 was the ultimate deadline to file claims that received extensions under Section 7. See Flanders, No. 22CV11032 (based on plain language, extensions from Section 7 of H.B. 4212 ended on December 31, 2021); ProgressiveUniversal Ins. Co. v. Tosano, No. 22CV09996, 2022 WL 3576110 (Or. Cir. July 22, 2022) (Section 7 of H.B. 4212 was repealed on December 31, 2021, so claim filed after that date and outside the limitations period was untimely); Mouton, No. 22CV06834 (ninety-day extension did not apply to December repeal date despite continuation of the state of emergency; claim filed after Dec. 31 was untimely); but see Corbin v. Clevenger DDS et al., No. 22CV05152 (Or. Cir. June 10, 2022) (ninety-day extension applied past the December repeal date; plaintiff had until March 31, 2022 to file claim). These cases addressed statutes of limitation and not statutes of repose, but the reasoning is the same for each. While these state cases are not binding, the Court agrees with their reasoning. Based on the plain language of H.B. 4212, Section 8 repealed Section 7 on December 31, 2021 and any claim filed after that date, and outside the applicable limitations period, is time-barred.
Plaintiff filed this Complaint on March 22, 2022, around ten years and six months after the mesh device was implanted. Because Plaintiff's Complaint was filed beyond the ten-year statute of repose, and any extension from Section 7 of H.B. 4212 expired on December 31, 2021, the Court grants Defendant's Motion to Dismiss. Plaintiff's claims are time-barred under the statute of repose, so the Court does not address whether the claims fall within Oregon's two-year statute of limitations or Defendant's other arguments in favor of dismissal.
CONCLUSION
Because Plaintiff did not file this action within the ten-year statute of repose, her claims are time-barred. The Court GRANTS Defendant's Motion to Dismiss [19] and dismisses Plaintiff's Amended Complaint [18] with prejudice.
IT IS SO ORDERED.