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Cormier v. Singh

United States District Court, M.D. Louisiana

June 17, 2019

TONY CORMIER (#278001)



         Please take notice that the attached Magistrate Judge’s Report has been filed with the Clerk of the U. S. District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.



         Before the Court is a Motion for Judgment on the Pleadings ("Motion")[1] filed by Defendant Ethicon, Inc. ("Ethicon"). For the following reasons, the undersigned recommends the Motion be denied.

         I. Background

         Plaintiff filed suit on February 25, 2016 in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, State of Louisiana, alleging injuries arising from his September 3, 2014 hernia repair surgery -specifically, as related to the instant motion, alleging product liability claims under the Louisiana Products Liability Act ("LPLA") against Ethicon as the manufacturer of the hernia mesh used in the surgery.[2] The action was thereafter transferred to the Eighteenth Judicial District Court and ultimately removed to this Court on the basis of federal question and supplemental jurisdiction[3]

         Ethicon asserts that the matter should be dismissed because it is prescribed on its face. Specifically, Ethicon contends that the injury occurred on the date Plaintiff had the mesh manufactured by Ethicon surgically placed into Plaintiffs body, September 3, 2014, and that because Plaintiff filed his Complaint more than one year after that date, his claims are prescribed. In opposition to the Motion to Dismiss, Plaintiff contends that the date of surgery is not per se the date of injury, and thus, his claims against Ethicon are not prescribed on the face of the Complaint.

         II. Law & Analysis

         Fed. R. Civ. P. 12(c) provides that "[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings." Entry of judgment on the pleadings is proper if the material facts are not in dispute and the court can render judgment on the merits by looking to the substance of the pleadings and any judicially noticed facts.[4] The standard for dismissal under Rule 12(c) is the same as that for dismissal for failure to state a claim under Rule 12(b)(6).[5]

         A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against the legal standard set forth in Rule 8, which requires, "a short and plain statement of the claim showing that the pleader is entitled to relief"[6] In order to survive a Rule 12(b)(6) motion, a pleading's language, on its face, must demonstrate that there exists plausibility for entitlement to relief[7] "Determining whether a complaint states a plausible claim for relief [is] ... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense."[8] In determining whether it is plausible that a pleader is entitled to relief, a court does not assume the truth of conclusory statements, but rather looks for facts which support the elements of the pleader's claim.[9] Factual assertions are presumed to be true, but "labels and conclusions" or "a formulaic recitation of the elements of a cause of action" alone are not enough to withstand a 12(b)(6) motion.[10] A defense based upon prescription may be raised through amotion for judgment on the pleadings.[11]

         "There is no federal statute of limitations for actions brought pursuant to 42 U.S. C. § 1983. It is well established that federal courts borrow the forum state's general personal injury limitations period."[12] Under Louisiana law, the prescriptive period for delictual actions, such as the instant matter, is one year.[13] The one-year prescriptive period commences to run from the day injury or damage is sustained.[14] Damage is sustained within the meaning of Louisiana Civil Code article 3492 "only when it has manifested itself with sufficient certainty to support accrual of a cause of action"[15]

         The Complaint at issue alleges that Plaintiff was implanted with Ethicon's product on September 3, 2014. As pointed out by Plaintiff, "[b]ecause the surgery happened on September 3, 2014, there is no reason for defendants to assume this date as the day of injury."[16] At some unknown point, Plaintiff began experiencing severe abdominal pain, which has continued to date. The Complaint does not provide any indication of when Plaintiff first experienced abdominal pain related to the surgery or when Plaintiff reasonably should have known that the pain was caused by a defect in the mesh manufactured by Ethicon. Thus, the Court cannot determine from the face of the Complaint when Plaintiffs injuries manifested and his cause of action accrued. The prescriptive period commences on the same day the cause of action accrues, so the Court cannot find Plaintiff s claims facially prescribed, especially when those facts are viewed in the light most favorable to Plaintiff[17]

         Even if the Complaint alleged a date that abdominal pain began, the doctrine of contra non valentem would likely suspend the running of prescription. The doctrine of contra non valentem prevents the running of the prescriptive period when "the cause of action is not known or reasonably knowable by the plaintiff"[18] This doctrine is rooted in principles of equity and justice, which "demand suspension when the plaintiff is effectively prevented [from] enforcing his rights for reasons external to his own will."[19] However, this doctrine does not suspend prescription when the plaintiff is able to bring a claim but simply fails to do so.[20]

         Because contra non valentem is a judicially created exception to the statutory rule of prescription, it is strictly construed, and its benefits are only extended up to the time that the plaintiff has actual or constructive knowledge of the tortious act. The Louisiana Supreme Court has recognized only four instances when contra non valentem suspends prescription, one of which is relevant to this matter.[21]

         One instance in which contra non valentem suspends prescription is known as the "discovery rule." Under the discovery rule, prescription is suspended when the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant.[22] Prescription will not commence at the earliest sign that "something [is] wrong .. . unless plaintiff knew or should have known by exercising reasonable diligence that there was a reasonable possibility that his problem may have been caused by defendant's conduct.[23] Thus, as long as a plaintiff acts reasonably to discover the cause of the problem, the prescriptive period will not begin to run until he has a reasonable basis to pursue a claim against a specific defendant.[24]The Supreme Court of Louisiana has clarified that courts should look to "the reasonableness of a plaintiffs action or inaction in light of his education, intelligence, and the nature of the defendant's conduct."[25]

         The facts in the instant matter are similar to those in Johnson v. LifeCell Corp.[[2]] In Johnson, a mesh device was used to repair an incisional hernia. Approximately three months later, in March 2010, the plaintiff developed pain in her abdomen that was determined by doctors to be the result of abscesses and an infection, which doctors drained. Two months later, in May 2010, the plaintiff had surgery to remove the infection and mesh.[27] Though Plaintiff did not file suit until July 2012, the Eastern District found it was appropriate to apply the doctrine of contra non valentem to the case. The court opined that the plaintiff reasonably thought the post-operative infection was the source of her problems with the mesh, rather than the mesh itself having a ...

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