The opinion of the court was delivered by: Judge Cathy Bissoon
Pending before the Court is Defendants Zimmer Holdings, Inc., Zimmer Inc., and Zimmer US, Inc.'s Motion to Partially Dismiss Plaintiffs' Complaint (Doc. 31). For the reasons stated herein, the Court will grant Defendants' motion to dismiss.
On May 16, 2006, Plaintiff Mary Horsmon had a total hip replacement whereby her right hip joint was replaced with implant components designed, manufactured, and sold by Defendants. 1st Am. Compl. ¶¶ 14-15 (Doc. 29). Ms. Horsmon later began to experience pain in her right hip. Id. at ¶ 16. Sometime in 2009, an X-ray revealed that the screw holding Ms. Horsmon's hip prosthesis in place was broken, and that the hip implant system had shifted from its original position. Id. at ¶ 17. In September 2009, Ms. Horsmon underwent a revision of her total hip replacement, in which her doctor removed the broken screw and replaced several components of the hip implant. Id. at ¶ 18. Post-operative X-rays indicated that a portion of the broken screw remained in Ms. Horsmon's pelvis, and a subsequent pathology report revealed a 3.0 cm defect in the original liner that was used during the May 2006 hip replacement. Id. at ¶ 19.
Plaintiffs allege that Defendants' conduct caused Ms. Horsmon to suffer various injuries, including being forced to undergo a second major surgical procedure, permanent injury to her hip, and severe pain and discomfort. Id. at ¶ 20.
On February 22, 2011, Plaintiffs commenced this action in the Court of Common Pleas of Allegheny County, by filing a Praecipe for Writ of Summons (Doc. 1-3). Plaintiffs asserted five causes of action: negligence (Count I); strict liability (Count II); breach of implied warranties (Count III); breach of express warranties (Count IV); and loss of consortium (Count V). See Compl. (Doc. 1-2). Defendants removed this action to this Court on the basis of diversity jurisdiction under 28 U.S.C. § 1332, and filed a motion to dismiss (Doc. 12) Counts II, III and IV of Plaintiffs' complaint. This Court found that Counts II and III were barred by Pennsylvania law and dismissed those counts with prejudice. This Court dismissed Count IV without prejudice for failure to state a claim.
Plaintiffs filed an amended complaint (Doc. 29), asserting three causes of action: negligence (Count I); breach of express warranties (Count II); and loss of consortium (Count III).*fn1 Defendants filed the currently pending motion to dismiss (Doc. 31), asserting that the breach of express warranties claim (Count II) should be dismissed as barred by the statute of limitations. Defendants further argue that even if the breach of express warranties claim is not barred by the statute of limitations, Plaintiffs have failed to allege sufficient facts to state a claim for breach of express warranties. Finally, Defendants assert that Count III should be limited to the extent it depends on the breach of express warranties theory asserted in Count II.
Defendants assert that Plaintiff Mary Horsmon's claim for breach of express warranties is barred by the applicable statute of limitations. Plaintiffs assert that Defendants waived the statute of limitations as an affirmative defense. Plaintiffs further assert that their claim is timely.
Plaintiffs assert that Defendants waived the statute of limitations defense by failing to raise it in their first motion to dismiss (Doc. 12). "Affirmative defenses must be raised as early as practicable, not only to avoid prejudice, but also to promote judicial economy. If a party has a successful affirmative defense, raising that defense as early as possible, and permitting a court to rule on it, may terminate the proceedings at that point without wasting precious legal and judicial resources." Robinson v. Johnson, 313 F.3d 128, 137 (3d Cir. 2002).
Defendants raised the statute of limitations as a defense in their Answer to Plaintiffs' original complaint. Answer 13 (Doc. 14). Further, omission of a statute of limitations defense from a motion to dismiss does not necessarily waive the defense. See Robinson, 313 F.3d at 138-39. Defendants, therefore, have not waived their statute of limitations defense.
2. Accrual of Plaintiffs' Cause of Action "In the ordinary case, a breach of warranty action accrues on, and suit must be filed within four years of, the date the seller tenders delivery of the goods, even if the breach is not apparent until after delivery has been tendered." Nationwide Ins. Co. v. Gen. Motors Corp./Chevrolet Motor Div., 625 A.2d 1172, 1174 (Pa. 1993) (applying 13 Pa. C.S. § 2725). Where a "warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such ...