United States District Court, D. South Carolina, Columbia Division
KENNETH E. BRUGGER, Jr., and NANCY K. BRUGGER, Plaintiffs,
C.R. BARD, INC., and DAVOL, INC., Defendants.
OPINION AND ORDER DENYING MOTION TO DISMISS
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE
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.
“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 ¶
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.
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.
reasons set out below, the motion is denied.
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
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 alleges the Bard Mesh was implanted when
Brugger underwent hernia surgery on December 13, 2011. ECF
No. 39 ¶ 13. 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
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.
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).
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.
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 ...