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Berg v. Johnson & Johnson

September 21, 2010

DEANE BERG, PLAINTIFF,
v.
JOHNSON & JOHNSON; JOHNSON & JOHNSON CONSUMER COMPANIES, INC.; LUZENAC AMERICA, INC.; JOHN DOES/JANE DOES 1-30; UNKNOWN BUSINESSES AND/OR CORPORATIONS A-Z, DEFENDANTS.



The opinion of the court was delivered by: Karen E. Schreier Chief Judge

ORDER DENYING DEFENDANTS' MOTIONS TO DISMISS UNDER RULE 12(b)(6)

Defendants, Johnson & Johnson and Johnson & Johnson Consumer Companies, Inc., (Johnson & Johnson), move to dismiss the complaint under Rule 12(b)(6). Defendant, Luzenac America, Inc., joins Johnson & Johnson's motion to dismiss. Plaintiff, Deane Berg, resists defendants' motions. Defendants' motions to dismiss are denied.

BACKGROUND

Berg was diagnosed with ovarian cancer on December 26, 2006. Berg filed her complaint against defendants on December 4, 2009. In summary, the complaint alleges that a product manufactured and sold by defendants caused Berg's ovarian cancer. The complaint alleges that defendants are liable under several theories, including strict liability, negligence, breach of warranty, civil conspiracy, acting in concert, and gross negligence. Defendants move to dismiss the claims in the complaint under Rule 12(b)(6) asserting a statute of limitations defense. Alternatively, defendants move to dismiss the civil conspiracy and acting in concert claims under Rule 12(b)(6) arguing that the complaint does not plead sufficient facts.

ANALYSIS

I. Statute of Limitations Defense

Defendants argue that the complaint must be dismissed because Berg failed to bring her claims within the three-year time period that applies to product liability claims. Berg argues that the cause of action against defendants was commenced in a timely manner.

The Eighth Circuit Court of Appeals stated in Varner v. Peterson Farms, 371 F.3d 1011 (8th Cir. 2004), that "when it 'appears from the face of the complaint itself that the limitation period has run,' a limitations defense may properly be asserted through a Rule 12(b)(6) motion to dismiss." Id. at 1016 (quoting Wycoff v. Menke, 773 F.2d 983, 984-85 (8th Cir. 1985)). The Eighth Circuit Court of Appeals then noted that the same was true with regard to Arkansas law. Id. (citing First Pyramid Life Ins. Co. of Am. v. Stoltz, 843 S.W.2d 842, 844 (Ark. 1992)).

In Guthmiller v. Deloitte & Touche, LLP, 699 N.W.2d 493 (S.D. 2005), however, the South Dakota Supreme Court held that a statute of limitations "defense may only be raised by 'answer or other responsive pleading.' " Id. at 497 (citing SDCL 15-2-1). According to the South Dakota Supreme Court, "[a] pre-answer motion under Rule 12(b), such as a motion to dismiss for failure to state a claim, is not a responsive pleading." Id. Therefore, "[s]ince no responsive pleadings were filed, the circuit court erred in granting the motion to dismiss on the statute of limitations defense." Id.

As a general rule in a case filed under diversity jurisdiction, substantive matters are dictated according to state law, and procedural matters are controlled by federal law. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996) ("Under the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law.") The conflicting holdings in Varner and Guthmiller as to whether a statute of limitations defense can provide a basis for dismissing a claim under Rule 12(b) seemingly requires the court to address whether South Dakota or federal law applies with regard to whether a case may be dismissed on the basis of a statute of limitations defense prior to answering the complaint. But the court need not resolve this issue because defendants' motion to dismiss is denied under the federal standard established in Varner.

Because defendants move to dismiss the complaint under Rule 12(b)(6), the court looks only to the complaint and considers only those matters outside the complaint that are not disputed. See Jenisio v. Ozark Airlines, Inc. Ret. Plan for Agent and Clerical Emps., 187 F.3d 970, 972 n.3 (8th Cir. 1999) ("A district court may consider documents on a motion to dismiss where . . . the parties do not dispute the actual contents of the documents."). Therefore, the court has not considered the numerous attached exhibits filed in this case. See BJC Health Sys. v. Columbia Cas. Co., 348 F.3d 685, 687-88 (8th Cir. 2003).

The complaint alleges that on or about December 26, 2006, Berg was diagnosed with ovarian cancer. Docket 1 at 5. The complaint was filed on December 4, 2009. Docket 1. On December 27, 2009, Luzenac America signed the Acknowledgment of Receipt of Summons and Waiver of Service of Summons. On December 28, 2009, Johnson & Johnson signed the Acknowledgment of Receipt of Summons and Waiver of Service of Summons.

SDCL 15-2-12.2 sets forth the applicable time period for bringing a products liability claim. It states in relevant part that a products liability claim against "a manufacturer . . . for . . . personal injury, death, or property damage caused by or resulting from the manufacture . . . of any product . . . may be commenced only within three years of the date when the personal injury, death, or property damage occurred, became known or should have become known to the injured party." SDCL 15-2-12.2.

At the outset, the parties dispute when the statute of limitations began to run. The court will not address these arguments because "a limitations defense may properly be asserted through a Rule 12(b)(6) motion to dismiss" only when it "appears from the face of the complaint itself that the limitation period has run." Varner, 371 F.3d at 1016 (emphasis added). The complaint alleges that Berg was diagnosed with ovarian cancer on December 26, 2006. Therefore, for purposes of defendants' motion to dismiss ...


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