Patchcoski v. W.L. Gore & Assocs.

EDWARD PATCHCOSKI, et al., Plaintiffs v. W.L. GORE & ASSOCIATES, INC., et al., Defendants

CIVIL ACTION NO. 3:19-1556

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

July 28, 2020

(JUDGE MANNION)

MEMORANDUM

Before the court is defendants' motion to dismiss the plaintiffs' complaint pursuant Fed.R.Civ.P. 12(b)(6). (Doc. 6). For the reasons stated below, defendants' motion to dismiss will be DENIED as to being time barred by the applicable statute of limitations, and as to the failure to state claims of strict liability, negligence, and loss of consortium.

I. PROCEDURAL HISTORY

The Plaintiffs, Edward Patchcoski ("Plaintiff") and his wife Susan Patchcoski, instituted this product liability case by the filing of a Praecipe for Writ of Summons in the Court of Common Pleas of Lackawanna County on January 25, 2019 (Doc. 7-1). Thereafter, Plaintiffs allege the parties entered into a Tolling Agreement on February 21, 2019, with both parties agreeing that the Plaintiffs had tolled the statute of limitations on any claims against the Defendants W.L. Gore & Associates, Inc., Gore Medical, and W.L. Gore & Associates, Inc. Medical Products Division, ("Gore"), as of that date.¹ (Doc. 1-1 at 7). However, the Defendants contend that while Plaintiffs and Gore entered into a Tolling Agreement, the agreement extended only through June 3, 2019, in order to allow time for a pre-litigation assessment of Plaintiffs' claims. Pursuant to the terms of the agreement, the Plaintiffs withdrew their Praecipe for Writ of Summons without prejudice on February 27, 2019. (Doc. 7-2). Thereafter, the parties engaged in settlement negotiations.

When the parties were unable to resolve this matter, Plaintiffs filed a Complaint in the County Court on August 14, 2019. (Doc. 1-1). Plaintiffs raise three claims in their Complaint, namely, Count I, strict liability alleging that the GORE-TEX® Soft Tissue Patch ("Gore Mesh") was defective and that it caused the Plaintiff's infection after it was implanted in him and lead to his multiple surgeries, Count II, negligence by failing to provide the Plaintiff with a safe product, and Count III, loss of consortium claim by the Plaintiff's wife.

On September 9, 2019, Defendants filed a Notice of Removal of this case to federal court based on diversity jurisdiction. (Doc. 1).

After being granted an extension of time, Gore filed a Motion to Dismiss the Plaintiffs' Complaint on October 14, 2019, arguing that the Complaint was filed well-beyond the applicable statute of limitations, and that there are no cognizable claims for strict liability and negligence stated. (Doc. 6). Gore's motion was then briefed by the parties and Exhibits were submitted. (Docs. 7, 12 & 17). Thus, the matter is now ripe for decision.

II. FACTUAL BACKGROUND²

On July 23, 1999, the Plaintiff underwent a ventral incisional hernia repair surgery performed by Dr. David Mariner during which the Gore Mesh was implanted. In March 2001, the Plaintiff underwent herniorrhaphy and abdominoplasty for the repair of a complex symptomatic ventral hernia. The GORE Mesh was left intact during this surgery.

On April 6, 2001, the Plaintiff underwent an aspiration of intra-abdominal and pelvic collections of fluid. The GORE Mesh was left intact during this procedure.

On May 14, 2001, the Plaintiff was diagnosed with an abscess on the top of the midline incision and he later tested positive for MRSA.

On September 7, 2001, the Plaintiff was diagnosed with abdominal pain and infected Gore Mesh.

On November 1, 2001, the Plaintiff had surgery for the removal of the GORE Mesh and subsequent testing showed the Mesh was infected.

After the removal of the GORE Mesh, the Plaintiff felt better but continued to have muscle weakness, fatigue, and delay healing in his stomach muscles and abdomen.

In the summer of 2019, the Plaintiff suffered a scratch on the scar tissue on his stomach from his surgeries. The Plaintiff's scratch quickly became infected. Due to the infection, the Plaintiff required treatment at a wound care center and he had numerous procedures to treat his wound.

During the treatment for his wound in the summer of 2019, the Plaintiff alleges that he first discovered that the infected GORE Mesh remained in his stomach, causing him sharp pains and requiring treatments, including invasive procedures, medication and pain reduction creams, as well as changes in his lifestyle.

The Plaintiff alleges that he was unaware that his multiple medical problems were related to the GORE Mesh until March 21, 2017, when he was advised by his treating physician and discovered that defects in the GORE Mesh could have led to his medical problems.

This court has subject matter jurisdiction over this case based on diversity of the parties and the amount in controversy exceeds $75,000. See 28 U.S.C. §1332. Venue is proper because a substantial part of the events giving rise to Plaintiffs 'claims occurred in this district. See 28 U.S.C. §1391(b)(2), §1404(a).

III. LEGAL STANDARD

The defendants' motion to dismiss is brought pursuant to the provisions of Fed.R.Civ.P. 12(b)(6). This rule provides for the dismissal of a complaint, in whole or in part, if the Plaintiff fails to state a claim upon which relief can be granted. The moving party bears the burden of showing that no claim has been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005), and dismissal is appropriate only if, accepting all of the facts alleged in the complaint as true, the Plaintiff has failed to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (abrogating "no set of facts" language found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The facts alleged must be sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. This requirement "calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of" necessary elements of the Plaintiffs' cause of action. Id. Furthermore, in order to satisfy federal pleading requirements, the Plaintiffs must "provide the grounds of his entitlement to relief," which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (brackets and quotations marks omitted) (quoting Twombly, 550 U.S. 544 at 555).

In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. See Sands v. McCormick, 502 F.3d 263 (3d Cir. 2007). The court may also consider "undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the Plaintiffs' claims are based on the [attached] documents." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002). However, the court may not rely on other parts of the record in determining a motion to dismiss. See Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250,1261 (3d Cir. 1994).

Generally, the court should grant leave to amend a complaint before dismissing it as merely deficient. See, e.g., Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). "Dismissal without leave to amend is justified only on the grounds of bad faith, undue delay, prejudice, or futility." Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004).

IV. DISCUSSION

A. STATUTE OF LIMITATIONS

Initially, Gore raises the defense of the statute of limitations to all claims asserted by the Plaintiffs. A brief summary of the applicable times and events is warranted. While the initial implantation of the surgical Gore Mesh occurred on July 23, 1999, long before Plaintiff initiated his action, the Plaintiff contends that he did not discover the fact that he had been injured and that the injury was caused by Gore until March 21, 2017. For the purposes of the motion to dismiss, this allegation will be accepted as true.

Gore states that "Plaintiff[] allege[s] that [he] was diagnosed with infected Gore Mesh on September 7, 2001 and underwent the explant of same on November 1, 2001", and that "the statute of limitations expired on November 1, 2003 at the latest; nearly 16 years before Plaintiffs filed its complaint against Gore." (Doc. 7).

Gore also argues that the discovery rule does not save the Plaintiffs' claims. Gore contends that "Plaintiff's Complaint fails to explain what facts became apparent in March of 2017, nor why they were incapable through due diligence of discovering the purported connection for well over a decade." (Id.).

Plaintiffs first argue that Gore's affirmative defense of the statute of limitations is premature and should not be considered in a Rule 12(b)(6) motion. Although a defense based on the statute of limitations generally cannot be raised with a Rule 12(b)(6) motion, it can be raised in such a motion if the face of the Complaint reveals that the applicable statute of limitations would bar the claims. See Webb v. Susquehanna Tp. School Dist., 93 F. Supp. 3d 343 (M.D. Pa. 2015) (citing Robinson v. Johnson, 313 F. 3d 128 (3d Cir. 2002)). See also Hanna v. U.S. Veterans' Administration Hospital, 514 F.2d 1092, 1094 (3d Cir. 1975) (the Third Circuit has stated that a statute of limitations defense may only be raised in a motion to dismiss if "the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations.").

Under Pennsylvania law, which applies in this case, the...