IN RE: DAVOL/C.R. BARD HERNIA MESH MULTI-CASE MANAGEMENT
DAVOL INC. and C. R. BARD INC., Defendants. REGINA RECINE, Plaintiff,
Providence Superior Court
Plaintiff: Melissa H. Nafash, Esq.
Defendant: Mark Nugent, Esq. Thomas M. Robinson, Esq.
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.
Facts and Travel
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
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.
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.
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.
Standard of Review
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)).
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 ...