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Brugger v. C.R. Bard, Inc.

United States District Court, D. South Carolina, Columbia Division

July 20, 2017

KENNETH E. BRUGGER, Jr., and NANCY K. BRUGGER, Plaintiffs,
v.
C.R. BARD, INC., and DAVOL, INC., Defendants.

          OPINION AND ORDER DENYING MOTION TO DISMISS

          CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE

         Through this action, Kenneth E. Brugger, Jr. (“Brugger” or “Mr. Brugger”) and his wife Nancy K. Brugger (“Mrs. Brugger”), seek recovery from C.R. Bard, Inc. (“Bard”), and Davol, Inc. (“Davol”) (collectively “Defendants”), for injuries Mr. Brugger allegedly suffered as a result of use of Composix L/P Mesh with Echo Positioning System 6x8 (“Bard Mesh”) in hernia repair surgery. The Amended Complaint alleges Defendants “were the researchers and/or designers and/or manufacturers and/or assemblers and/or testers and/or labelers and/or packagers and/or promoters and/or sellers and/or distributors and/or otherwise engaged in placing [Bard Mesh] into the stream of commerce[.]” ECF No. 39 ¶ 8.

         Mr. Brugger asserts claims for strict product liability, failure to warn, negligence, breach of express warranty, breach of implied warranty, fraud, constructive fraud, negligent misrepresentations, unjust enrichment, and violation of the South Carolina Unfair Trade Practices Act. Mrs. Brugger asserts a claim for loss of consortium. Both Plaintiffs assert a standalone claim for punitive damages.

         The matter is before the court on Defendants' motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants argue all claims are barred by the applicable statute of limitations because the action was filed more than three years after Plaintiffs were on notice of their claims. Defendants rely on evidence Plaintiffs were on inquiry notice no later than August 2013, yet delayed filing this action until January 24, 2017.

         For reasons set out below, the motion is denied.

         STANDARD

         Because the motion seeks dismissal under Rule 12(b)(6) of the Federal Rules of Procedure, the court accepts the allegations of the Amended Complaint as true and construes those allegations in the light most favorable to Plaintiffs. See, e.g., Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). The court need not, however, accept unwarranted inferences or legal conclusions drawn from the facts. Id.

         An affirmative defense may be resolved on motion to dismiss, but only if the defense “clearly appears on the face of the complaint.” Richmond, Fredricksburg & Potomac R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993) (finding defense did not clearly appear on face of complaint). A motion to dismiss based on a statute of limitations defense requires the complaint “clearly allege all facts necessary to the affirmative defense.” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (finding facts necessary to statute of limitations defense were not clearly alleged).

         AMENDED COMPLAINT

         The Amended Complaint alleges the Bard Mesh was implanted when Brugger underwent hernia surgery on December 13, 2011. ECF No. 39 ¶ 13.[1] Brugger underwent lap-band surgery roughly nine months later, on September 18, 2012. Id. ¶ 14. A few weeks after the lap-band surgery, Brugger suffered an “infection thought to be associated with the lap-band surgery[, ]” which led to an October 5, 2012 surgery to remove the lap band port and another surgery on February 19, 2013, to install a new port. Id. ¶¶ 15, 16 (noting billing records for the later surgery refer to “gastric restriction procedure”).

         In August 2013, Brugger sought medical care for abdominal pain. A CT scan was performed on August 2, 2013, for “possible recurrent hernia.” Id. ¶ 17. The report for this scan “suggested a small midline defect just inferior to the surgical mesh consistent with a small ventral hernia without other signs of acute disease within the abdomen or pelvis.” Id.

         Brugger was hospitalized from August 22-25, 2013, “to treat infection due to ‘abdominal wall cellulitis/abscess from distant placement of a lap band.'” Id. ¶ 18. Records from this hospitalization “report that an August 22, 2013 CT scan showed a small abscess which was close to resolution.'” Id. (noting CT report actually referred to both a large and a small abscess).

         Brugger returned to the hospital two days later, on August 27, 2013, for a “gastric restriction procedure.” Id. at 19 (quoting billing records). Brugger believes the lap band was removed in its entirety during this procedure. Id. Discharge records from this hospitalization list the diagnosis as “infection due to gastric band procedure.” Id. at 20. “Throughout this time, [Brugger] was informed by [his] physicians that the pain he suffered was due to the various lap-band procedures . . . and complications resulting from the lap-band procedures.” Id. ¶ 21.

         Several months later, on November 24, 2013, Brugger received treatment for “additional symptoms” he had been experiencing “for several days including fever and redness at ‘the previous surgical site.'” Id. ¶ 22. He was “discharged that same da[y] with antibiotics” but returned to the hospital on November 26, 2013, at which time another CT scan was performed. Id. “This CT scan was ordered due to [Brugger's] ‘history of recurrent abdominal wall infections associatedwith previous laparoscopic bariatric surgery[]'” and revealed another abscess which was ...


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