Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dailey v. Encore Medical Corporation

United States District Court, M.D. Pennsylvania

December 10, 2014



MATTHEW W. BRANN, District Judge.

Defendants Encore Medical Corporation, Encore Medical, L.P., DJO Incorporated, and DJO Surgical (hereinafter, "Defendants") filed a Motion to Dismiss Plaintiffs Fred and Martha Dailey's Complaint for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defs.' Mot. Dismiss, Sept. 3, 2014, ECF No. 3 (hereinafter "Defs.' Mot."). Plaintiffs' Complaint, filed August 18, 2014 in the Court of Common Pleas of Centre County, Pennsylvania, alleges one count for negligence, based on various theories of liability, one count for manufacturing defect based upon a theory of strict liability, and one count for Mrs. Dailey's loss of consortium. Pl.'s Compl., Aug. 18, 2014, ECF No. 1 (hereinafter "Pl.'s Compl."). Defendants seek to dismiss Plaintiff's Complaint against them in its entirety. This Court retains diversity jurisdiction pursuant to 28 U.S.C. § 1332. Consequently, Pennsylvania substantive law applies. See, e.g., Erie R. Co. v. Tompkins, 304 U.S. 64, 91-92 (1938). For the reasons discussed, Defendants' Motion to Dismiss is granted in its entirety because Plaintiffs' Complaint is barred by the applicable statute of limitations.


On August 23, 2013, Plaintiffs initiated the above-captioned civil action by filing a Writ of Summons in the Court of Common Pleas of Centre County, Pennsylvania. On August 18, 2014, Plaintiffs filed their Complaint in the Court of Common Pleas of Centre County, Pennsylvania, alleging one count of negligence based upon various theories of liability, one count of strict liability due to manufacturing defect, and one count of loss of consortium. On August 20, 2014, Defendants removed the case to this Court pursuant to 28 U.S.C. §§ 1332(a), 1441(a), and 1446. On September 3, 2014, Defendants moved to dismiss Plaintiffs' Complaint in its entirety.

The following allegations are taken from Plaintiffs' Complaint and are accepted as true for the purposes of the instant motion.

This case arises from the implantation and subsequent failure of an artificial knee replacement device produced by the Defendants and implanted into the Plaintiff Fred Dailey's left knee on or about August 15, 2005. Pl.'s Compl. ¶ 8-9. The surgery was performed by Kenneth Cherry, M.D., at the Mount Nittany Medical Center. Id. ¶ 9. Prior to the surgery, Plaintiff was provided no indication or warning by Defendants that the artificial knee's post tibial insert and/or polyethylene was destined to fail or had any particular life expectancy. Id. ¶ 17. This was Plaintiff's second knee replacement, the first being performed by Dr. Cherry at some point in 1999. Id. ¶ 6-7. Though the knee replacement initially functioned satisfactorily, while out at a restaurant at some point in the summer of 2011, Plaintiff felt like his left knee was going to give out on him. Id . ¶ 10. X-rays that were taken on July 28, 2011 did not disclose that there was anything wrong with the implant. Id. ¶ 11-12. Nevertheless, Dr. Cherry recommended a revision, which occurred on August 23, 2011. Id. ¶ 13.

Plaintiff's admittance records from Mt. Nittany Medical Center state that:

[Plaintiff] underwent poly exchange of [the left] knee in 2005. [Plaintiff] presents to the office with similar symptoms. He is having pain and instability he also felt a loud pop while at a restaurant. He has had decreased range of motion since that time. X-rays in the office did show a questionable lucency. Being that his tibial insert has Failed twice he is now scheduled for total revision.

Id. ¶ 14. It was during this scheduled revision that it was discovered that the tibial post of the implant had broken. Id. ¶ 15. Specifically, after the revision Dr. Cherry noted, "The knee showed obvious failure of the tibial polyethylene." Id. ¶ 16. As a result of the failure of the tibial post and the subsequent surgery, Plaintiff has suffered pain, discomfort, and instability in his left knee, and past and ongoing medical treatment, which will continue indefinitely. Id. ¶ 23(a)-(f).


A. Motion to Dismiss Standard

When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court must view all allegations stated in the complaint as true and construe all inferences in the light most favorable to plaintiff. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). However, "the tenet that a court must accept as true all of the [factual] allegations contained in the complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). In ruling on such a motion, the court primarily considers the allegations of the pleading, but is not required to consider legal conclusions alleged in the complaint. Kost, 1 F.3d at 183. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. At the motion to dismiss stage, the court considers whether plaintiff is entitled to offer evidence to support the allegations in the complaint. Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000).

A complaint should only be dismissed if, accepting as true all of the allegations in the amended complaint, plaintiff has not pled enough facts to state a claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561 (2007). "Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 663-664.

"In considering a Rule 12(b)(6) motion, we must be mindful that federal courts require notice pleading, as opposed to the heightened standard of fact pleading." Hellmann v. Kercher, No. 07-1373, 2008 WL 1969311 at * 3 (W.D. Pa. May 5, 2008) (Lancaster, J.). Federal Rule of Civil Procedure 8 "requires only a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to give the defendant fair notice of what the...claim is and the grounds on which it rests, '" Bell Atlantic Corp. v. Twombly, 550 U.S. at 554 (quoting Conley v. Gibso n, 355 U.S. 41, 47 (1957)). However, even under this lower notice pleading standard, a plaintiff must do more than recite the elements of a cause of action, and then make a blanket assertion of an entitlement to relief. See Hellmann, 2008 WL 1969311 at *3. Instead, a plaintiff must make a factual showing of his entitlement to relief by alleging sufficient facts that, when taken as true, suggest the required elements of a particular legal theory. See Twombly, 550 U.S. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.