United States District Court, D. Colorado
MOTION TO DISMISS WITHOUT PREJUDICE AND SANCTIONING PLAINTIFFS' COUNSEL FOR
FAILING TO MEANINGFULLY COMPLY WITH WJM REVISED PRACTICE STANDARD III.D.1
WILLIAM J. MARTÍNEZ, Judge.
Invoking this Court's diversity jurisdiction, see 28 U.S.C. § 1332(a), Plaintiffs Judith and Donald Butt (together, "the Butts") sue Defendant Wright Medical Technology, Inc. ("Wright Medical") on various causes of action stemming from injuries Judith Butt received due to Wright Medical's allegedly defective artificial hip apparatus. (ECF No. 1.) Before the Court is Wright Medical's Motion to Dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 14.) (the "Motion"). For the reasons explained below, the Motion is granted without prejudice to refiling. However, as also explained below, the Court finds that a sanction is appropriate against the Butts' counsel in light of their failure to meaningfully comply with WJM Revised Practice Standard III.D.1.
I. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a claim in a complaint for "failure to state a claim upon which relief can be granted." The 12(b)(6) standard requires the Court to "assume the truth of the plaintiff's well-pleaded factual allegations and view them in the light most favorable to the plaintiff." Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on such a motion, the dispositive inquiry is "whether the complaint contains enough facts to state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Granting a motion to dismiss "is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice." Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (internal quotation marks omitted). "Thus, a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.'" Id. (quoting Twombly, 550 U.S. at 556).
In May 2008, Butt had a right hip replacement. (¶ 7.) Wright Medical manufactured at least some of the components that went into the hip replacement apparatus. (¶ 8.)
On September 14, 2011, Butt "underwent a right hip revision" surgery in which some components of the hip replacement apparatus were replaced. (¶¶ 10-11.) On September 29, 2011, Butt's right hip dislocated while she "was standing in her kitchen stirring soup." (¶ 13.) On October 5, 2011, Butt underwent another revision surgery to replace certain parts of her artificial hip with, among other things, additional components manufactured by Wright Medical. (¶ 18.) During that operation, Butt's physicians noted "significant synovitis from previous metal-on-metal bearing with staining of the synovial lining of the hip, aseptic loosening of the acetabular component and well-fixed femoral component." (¶ 19.)
In February 2013, Butt endured another revision surgery which apparently replaced every part of her artificial hip with components manufactured by a company that is not a party here. (¶ 20.) Butt now sues Wright Medical, alleging causes of action for "product strict liability, " negligent design and manufacture, negligent failure to warn, and punitive damages. (¶¶ 22-49, 54-57.) Donald Butt alleges loss of consortium. (¶¶ 50-53.)
A. Statute of Limitations
Wright Medical's primary challenge is that Butt did not timely file her complaint. (ECF No. 14 at 4-7.) In Colorado, product liability lawsuits, including failure-to-warn lawsuits, must be filed "two years after the claim for relief arises." Colo. Rev. Stat. § 13-80-106(1); see also Yoder v. Honeywell Inc., 900 F.Supp. 240, 244 (D. Colo. 1995) ("Because this is a suit based on diversity jurisdiction, we apply the law of the forum state, in this case Colorado."). In addition, "Colorado has adopted the discov ery rule to determine when a product liability action accrues, " meaning that
a plaintiff must bring her product liability... claims within [two] years of when she is aware or should be aware, in the exercise of reasonable diligence, of all of the elements of the cause of action. Once a plaintiff has suspicion of wrongdoing, she is under a duty to attempt to find the facts. Uncertainty as to the full extent of the damage does not stop the accrual of a cause of action.
Norris v. Baxter Healthcare Corp., 397 F.3d 878, 887-88 (10th Cir. 2005) (citations and footnote omitted).
Wright Medical argues that Butt should have been aware of a potential cause of action no later than her October 5, 2011, surgery, during which her physicians discovered "significant synovitis" and other indications of something having gone wrong. (ECF No. 14 at 6-7; see also ECF No. 1 ¶¶ 18-19.) Notably, Butt does not respond by arguing that her allegations, as currently pleaded, are enough to overcome the discovery rule. Instead, Butt submits an affidavit claiming that she had no reason to suspect Wright Medical's alleged wrongdoing until her final surgery in February 2013: "Up until that point, based on my personal knowledge and conversations I had with my treating physicians, I believed that those ...