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Sherfey v. Johnson & Johnson

United States District Court, E.D. Pennsylvania

June 12, 2014

STACY SHERFEY, as an administrator of the estate of Tracen Sherfey, a minor, deceased, STACY SHERFEY, and NEIL SHERFEY, Plaintiffs,
JOHNSON & JOHNSON, et al., Defendants.


ROBERT F. KELLY, Sr., District Judge.

Presently before the Court is Defendants, Johnson & Johnson ("J&J"), McNeil-PPC, Inc. ("McNeil"), Johnson & Johnson Sales & Logistics Company, LLC, and Wal-Mart Stores, Inc.'s (collectively, "Defendants"), Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6), Plaintiffs, Stacy Sherfey, as the administrator of the Estate of Tracen Sherfey, a minor, deceased, Stacy Sherfey, and Neil Sherfey's (collectively, "Plaintiffs"), Response, and Defendants' Reply thereto. For the reasons stated below, the Motion is denied.


Plaintiffs[2] filed the Complaint on June 27, 2012, against Defendants, Carolina Supply Chain Services, LLC, Carolina Logistics Services, LLC (collectively, the "Inmar Defendants"), and individual executives and officers of McNeil in the Court of Common Pleas of Philadelphia County. Defendants removed this action to this Court based on diversity of citizenship and the inapplicability of the forum defendant rule set forth in 28 U.S.C. § 1441(b)(2). Plaintiffs filed a Motion to Remand, which we denied on January 29, 2014. See Sherfey, 2014 WL 715518, at *1. We also dismissed from this action the individual executive Defendants because they were fraudulently joined. Id . at 5-11. In a subsequent decision rendered on April 25, 2014, we dismissed the Inmar Defendants from this action for lack of standing. See Sherfey v. Johnson & Johnson, No. 12-4162, 2014 WL 1663966, at *1-5 (E.D. Pa. Apr. 25, 2014).

Plaintiffs assert that their two-week-old son, Tracen Sherfey ("Tracen"), died from ingesting defective and recalled Infants' Tylenol. Plaintiffs allege that on February 16, 2009, Stacy Sherfey gave Tracen a recommended dose of Infants' Tylenol based on the suggestion of Tracen's doctor. Id . ¶ 103. The following morning, Stacy Sherfey gave Tracen another dose of Infants' Tylenol in accordance with the instructions on the package, and later this same day, gave Tracen another dose. Id . ¶¶ 104-105. Tracen began vomiting blood, and Stacy Sherfey took him to the local emergency room. Id . Tracen was later airlifted to Children's Primary Hospital in Salt Lake City, Utah. Id . ¶ 107. On February 19, 2009, Tracen died from acute liver failure. Id . ¶ 108. Plaintiffs assert the following causes of action against the Defendants: (1) Count I- Strict Liability; (2) Count II- another Count of Strict Liability; (3) Count III- Recklessness; (4) Count IV- Negligence; (5) Count XIII- Breach of Express Warranty; (6) Count XIV- Breach of Implied Warranty; (7) Count XV- Negligent Infliction of Emotional Distress; (8) Count XVI- Violation of Nevada Consumer Protection Law; (9) Count XVII- Civil Conspiracy; and (10) Count XIX-Punitive Damages.

Defendants filed the instant Motion to Dismiss on February 14, 2014. (Doc. No. 54.) Plaintiffs filed a Response, and Defendants filed a Reply. (Doc. Nos. 59, 63.)


A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. Kost v. Kozakiewicz , 1 F.3d 176, 183 (3d Cir. 1993). Pursuant to Rule 12(b)(6), the defendant bears the burden of demonstrating that the plaintiff has failed to set forth a claim from which relief may be granted. Fed.R.Civ.P. 12(b)(6); see also Lucas v. City of Philadelphia, No. 11-4376 , 2012 WL 1555430, at *2 (E.D. Pa. May 2, 2012) (citing Hedges v. U.S. , 404 F.3d 744, 750 (3d Cir. 2005)). In evaluating a motion to dismiss, the court must view any reasonable inferences from the factual allegations in a light most favorable to the plaintiff. Buck v. Hamilton Twp. Sch. Dist. , 452 F.3d 256, 260 (3d Cir. 2002).

The Supreme Court set forth in Twombly, and further defined in Iqbal, a two-part test to determine whether to grant or deny a motion to dismiss. See Ashcroft v. Iqbal , 556 U.S. 662, 679 (2009); Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007). The United States Court of Appeals for the Third Circuit ("Third Circuit") has noted that these cases signify the progression from liberal pleading requirements to more "exacting scrutiny" of the complaint. Wilson v. City of Philadelphia , 415 F.Appx. 434, 436 (3d Cir. 2011).

Initially, the court must ascertain whether the complaint is supported by well-pleaded factual allegations. Iqbal , 556 U.S. at 679. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Twombly , 550 U.S. at 555. Conclusions of law can serve as the foundation of a complaint, but to survive dismissal they must be supported by factual allegations. Iqbal , 556 U.S. at 679. These factual allegations must be explicated sufficiently to provide a defendant the type of notice that is contemplated by Rule 8. See Fed.R.Civ.P. 8(a)(2) (requiring a short and plain statement of the claim showing that the pleader is entitled to relief); see also Phillips v. County of Allegheny , 515 F.3d 224, 233 (3d Cir. 2008). Where there are well-pleaded facts, courts must assume their truthfulness. Iqbal , 556 U.S. at 679.

Upon a finding of a well-pleaded complaint, the court must then determine whether these allegations "plausibly" give rise to an entitlement to relief. Id . at 679. This is a "context specific task that requires the reviewing court to draw on its judicial experience and common sense." Id . Plausibility compels the pleadings to contain enough factual content to allow a court to make "a reasonable inference that the defendant is liable for the misconduct alleged." Id . (citing Twombly , 550 U.S. 544 at 570). This is not a probability requirement; rather plausibility necessitates "more than a sheer possibility that a defendant has acted unlawfully." Iqbal , 556 U.S. at 678. "Where a complaint pleads facts that are merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility.'" Id . (quoting Twombly , 550 U.S. at 557). In other words, a complaint must not only allege entitlement to relief, but must demonstrate such entitlement with sufficient facts to nudge the claim "across the line from conceivable to plausible." Id . at 683; see also Holmes v. Gates , 403 Fed.App'x 670, 673 (3d Cir. 2010).


A. Applicable Statutes of Limitations

As noted in our previous decision, three days prior to the oral argument held before us on December 6, 2013, which focused solely on the issue of fraudulent joinder, Defendants' counsel sent this Court a letter-brief arguing for the first time that Pennsylvania's statute of limitations bars Plaintiffs' causes of actions against Defendants. See 42 Pa. C.S.A. § 5524(2). This section imposes a two-year limitations period for personal injury and wrongful death claims. Id . Defendants asserted that under Pennsylvania's "borrowing statute, " this Court "must apply the same statute of limitations that the Pennsylvania state court would apply: the shorter of the period which applies in the state in which the claim accrued, in this case Nevada, or the period that applies in Pennsylvania." (Defs.' Dec. 3, 2013 Letter-Brief) (citing 42 Pa.C.S.A. § 5521(b)).

Defendants asserted that the Complaint alleges that Tracen died on February 19, 2009, as a result of ingesting defective Infant's Tylenol, and that the Complaint was filed on June 27, 2012, more than three years and four months after Tracen's death.[3] (Id.) Defendants argued, therefore, that on the face of the Complaint, the claims against them are barred by the statute of limitations. (Id.) Defendants further argued that Pennsylvania law concerning the "discovery rule" and/or the doctrine of fraudulent concealment would not toll the statute of limitations in this case. See Pastierik v. Duquesne Light Co. , 526 A.2d 323, 326-27 (Pa. 1987); Mest v. Cabot Corp. , 449 F.3d 502, 517 (3d Cir. 1985).

"The discovery rule tolls the accrual of the statute of limitations when a plaintiff is unable, despite the exercise of due diligence, to know of the injury or its cause.'" Mest , 449 F.3d 510 (quoting Pocono Int'l Raceway, Inc. v. Pococno Produce, Inc. , 468 A.2d 468, 471 (Pa. 1983)). Under the rule, even if a plaintiff suffers an injury, the statute of limitations does not begin to run until "the plaintiff knows, or reasonably should know (1) that he has been injured, and (2) that his injury has been caused by another party's conduct." Id . "Pennsylvania's fraudulent concealment doctrine tolls the statute of limitations where through fraud or concealment the defendant causes the plaintiff to relax vigilance or deviate from the right of inquiry.'" Id . (quoting Ciccarelli v. Carey Canadian Mines, Ltd. , 757 F.2d 548, 556 (3d Cir. 1985)).

Plaintiffs replied in a December 16, 2013 letter-brief that Defendants' "statute of limitations argument assumes that Pennsylvania law applies to Plaintiffs' wrongful death and survival claims, but it does not." (Pls.' Dec. 16, 2013 Letter-Brief.) Plaintiffs asserted that the discovery rule under Nevada law applies to the wrongful death actions.[4] (Id.) (citing Pope , 760 P.2d at 766). Given the difference between the laws governing the application of the discovery rule in Pennsylvania and Nevada in wrongful death cases, Plaintiffs assert that this Court must engage in a choice of law analysis to decide which state's law applies. (Id. at 2.) Plaintiffs argued that a choice of law analysis would clearly conclude that Nevada law applies. (Id.) As such, Plaintiffs assert that because Nevada's discovery rule and law concerning fraudulent concealment apply to Plaintiffs' wrongful death and survival claims, their claims against the individual Defendants are colorable and not barred by the statute of limitations. (Pls.' Dec. 16, 2013 Letter-Brief at 3-8.) (citing Pope , 760 P.2d at 766).

Defendants responded in their December 20, 2013 letter-brief that the choice of limitations period is not determined by a general choice of law analysis. (Defs.' Dec. 20, 2013 Letter-Brief at 1.) Rather, "[i]t is dictated by the very specific rule in the borrowing statute', 42 Pa. C.S.A. § 5521(b), " and that under this statute this Court must apply the limitations period prescribed by Pennsylvania law if that period is shorter than the period under the law of the state where the claim accrued. (Id.)

Upon consideration of these "letter-briefs" at that time, we agreed with Defendants that Pennsylvania's statute of limitations applies to Plaintiffs' wrongful death claim. Sherfey, 2014 WL 715518, at *11-13. We also ruled, however, that at that stage of the litigation, we did not have sufficient information from the parties to make a determination whether, under the discovery rule, Plaintiffs, exercising due diligence, knew or should have known that the individual Defendants caused them injuries within Pennsylvania's two-year applicable statute of limitations. Id . Additionally, we ruled that we also did not have sufficient information to make a determination whether "through fraud or concealment" Defendants caused Plaintiffs "to relax vigilance or deviate from the right of inquiry" under the fraudulent concealment doctrine. Id.

Defendants again raise this statute of limitations argument in the instant Motion to Dismiss. They argue that under Pennsylvania's "borrowing" statute, Pennsylvania's statute of limitation applies to this action and bars Plaintiffs' wrongful death claims. (Defs.' Mot. Dismiss at 4.) Defendants also assert that all of Plaintiffs' "personal injury and products liability claims, including strict liability, recklessness, negligence, negligent infliction of emotional distress, breach of implied liability, civil conspiracy, and punitive damages, should be dismissed with respect to all moving Defendants because these claims are barred by the applicable statutes ...

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