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In re Davol/C.R. Bard Hernia Mesh Multi-Case Management

Superior Court of Rhode Island, Providence

January 7, 2019

DAVOL INC. and C. R. BARD INC., Defendants. REGINA RECINE, Plaintiff,

          COURT: Providence Superior Court

          For Plaintiff: Melissa H. Nafash, Esq.

          For Defendant: Mark Nugent, Esq. Thomas M. Robinson, Esq.


          GIBNEY, P.J.

         Davol Inc. (Davol) and C. R. Bard Inc. (Bard) (collectively Defendants) move to dismiss the Amended Complaint of Regina Recine (Plaintiff or Recine) arguing Plaintiff's claims are barred by the applicable statute of limitations. Plaintiff objects to the motion. This Court exercises jurisdiction pursuant to G.L. 1956 § 8-2-14.

         I Facts and Travel

         On May 12, 2008, Plaintiff underwent surgery to repair a ventral hernia and was implanted with a Ventralex' Hernia Patch (Ventralex Patch), a medical device designed, manufactured, and distributed by Defendants. On October 4, 2011, Plaintiff underwent an additional surgery to remove a portion of the Ventralex Patch. In July 2015, Plaintiff learned she needed a third surgery to remove another portion of the Ventralex Patch.

         On July 13, 2017, Plaintiff filed a Complaint alleging she was severely and permanently injured as a result of the defective nature of the Ventralex Patch. Plaintiff referenced the May 2008 and October 2011 surgeries in the Complaint, but did not include the July 2015 allegations. Defendants moved to dismiss the Complaint on August 7, 2017 on the grounds that the action is barred by G.L. 1956 § 9-1-14(b), which sets forth a three-year statute of limitations for personal injury actions, including those arising under theories of products liability. Defendants argued that at a minimum, Plaintiff became aware of her injuries and their potential relationship to the Ventralex Patch when a portion of the device was removed from Plaintiff's body in October 2011, and therefore argued Plaintiff's claims are time-barred.

         Plaintiff filed an Amended Complaint on August 11, 2017, this time including the July 2015 allegations. Furthermore, Plaintiff alleged that she did not learn of the Defendants' "wrongdoing in connection with the design, manufacture, and marketing of the Ventralex product until the end of 2016." (Pl.'s Am. Compl. ¶ 42.) Plaintiff attached an affidavit to the Amended Complaint, stating that "[p]rior to July 2015, [she] was never informed . . . about the defective nature of [the Ventralex Patch]" (Pl.'s Aff. ¶ 8) and that "[p]rior to the end of 2016, [she] was never informed . . . about Bard and Davol's wrongdoing in connection with the defective mesh . . ." (Pl.'s Aff. ¶ 9). Plaintiff argued that the Amended Complaint rendered Defendants' motion to dismiss moot, and further asserted that the claims in the Amended Complaint survive under both Rhode Island's "discovery rule" and § 9-1-20, Time of accrual of concealed cause of action.

         On August 22, 2017, Defendants moved to dismiss Plaintiff's Amended Complaint, again asserting the claims therein are time-barred. Defendants contended Plaintiff's allegations in the Amended Complaint-including her assertion that she learned she needed additional surgery in July 2015, along with the allegation that she was not aware of Defendants' wrongdoing until the end of 2016-are insufficient to trigger the application of the discovery rule. Defendants further asserted that Plaintiff failed to properly establish the elements of fraudulent concealment, which require both an actual misrepresentation and the concealment of a potential cause of action. Plaintiff objected to Defendants' second motion to dismiss on similar grounds as those set forth in her initial objection.

         II Standard of Review

         It is well-settled that the sole function of a motion to dismiss is to test the sufficiency of the complaint. Ryan v. State, Dep't of Transp., 420 A.2d 841, 842 (R.I. 1980); Dutson v. Nationwide Mut. Ins. Co., 119 R.I. 801, 803-04, 383 A.2d 597, 599 (1978). "[A]lthough the statute of limitations is designated as an affirmative defense in Super. R. Civ. P. 8(c) . . . modern practice permits it to be raised by a motion to dismiss under Super. R. Civ. P. 12(b)(6) where . . . the defect appears on the face of the complaint." Young v. Park, 116 R.I. 568, 573, 359 A.2d 697, 700 (1976) (citing Tasby v. Peek, 396 F.Supp. 952 (W.D. Ark. 1975)). '"When ruling on a Rule 12(b)(6) motion, the trial justice must look no further than the complaint, assume that all allegations in the complaint are true, and resolve any doubts in a plaintiff's favor."' Estate of Sherman v. Almeida, 747 A.2d 470, 473 (R.I. 2000) (quoting R.I. Affiliate, Am. Civ. Liberties Union, Inc. v. Bernasconi, 557 A.2d 1232 (R.I. 1989)). "A motion to dismiss under Rule 12(b)(6) will only be granted 'when it is clear beyond a reasonable doubt that the plaintiff would not be entitled to relief from the defendant under any set of facts that could be proven in support of the plaintiff's claim.'" Bruno v. Criterion Holdings, Inc., 736 A.2d 99 (R.I. 1999) (quoting Folan v. State/DCYF, 723 A.2d 287, 289 (R.I. 1999)).

         III Analysis

         Plaintiff attached a personal affidavit to the Amended Complaint reiterating the allegations therein. In general, "[a] trial justice [is] not obligated to consider the affidavits offered by the parties in ruling on . . . [a] Rule 12(b)(6) motion." Bethlehem Rebar Indus., Inc. v. Fid. & Deposit Co. of Maryland, 582 A.2d 442, 444 (R.I. 1990); see also Martin v. Howard, 784 A.2d 291, 298 (R.I. 2001) ("when the motion justice receives evidentiary matters outside the complaint and does not expressly exclude them in passing on the motion, then Rule 12(b)(6) specifically requires the motion to be considered as one for summary judgment"). However, when a document is attached to the complaint itself, a trial justice may properly consider and reference said document in deciding a motion to dismiss. Super. R. Civ. P. 10(c); Bowen Ct. Assocs. v. Ernst & Young, LLP, 818 A.2d 721, 725 (R.I. 2003) ("[i]t is certainly true that documents attached to a complaint will be deemed incorporated therein by reference"). Here, as Plaintiff attached the affidavit to the Amended Complaint, the Court deems it incorporated into the Amended ...

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