22-3205-cv (L) Rouviere v. Depuy Orthopaedics, Inc

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 5th day of April, two thousand twenty-four.

PRESENT: REENA RAGGI, EUNICE C. LEE, BETH ROBINSON, Circuit Judges. _____________________________________

JODI ROUVIERE, individually,

Plaintiff-Appellant,

ANDRE ROUVIERE, Jodi Rouviere’s husband, individually,

Plaintiff,

v. 22-3205 (L) 23-50 (Con) HOWMEDICA OSTEONICS CORPORATION, DBA STRYKER ORTHOPAEDICS, DEPUY ORTHOPAEDICS, INC.,

Defendants-Appellees.

_____________________________________

FOR PLAINTIFF-APPELLANT: JODI ROUVIERE, pro se, Miami, FL.

FOR DEFENDANT-APPELLEE HOWMEDICA: Paul E. Asfendis, Kim M. Catullo, Gibbons P.C., New York, NY.

FOR DEFENDANT-APPELLEE DEPUY: Joseph G. Eaton, J.T. Larson, Barnes & Thornburg LLP, Indianapolis, IN.

Appeal from a judgment of the United States District Court for the Southern

District of New York (Lewis J. Liman, J.; Stewart D. Aaron, Mag. J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the January 4, 2023 judgment of the district

court is AFFIRMED.

* * *

2 Appellant Jodi Rouviere, who was represented by counsel below but is

proceeding pro se on appeal, sued two medical device companies, Howmedica

(a.k.a. Stryker) and DePuy, for products liability and breach of warranty in 2018.

Rouviere suffered complications from her hip replacement in 2012 after parts

made by Stryker and DePuy allegedly impinged upon one another and eventually

caused a wide variety of issues, including metallosis. 1 The district court granted

both defendants’ motions for summary judgment—DePuy’s based primarily on

lack of expert evidence and proximate causation, and Stryker’s based on the

statute of limitations. See generally Rouviere v. DePuy Orthopaedics, Inc.,

(S.D.N.Y. 2021); Rouviere v. Howmedica Osteonics Corp.,

1 “Metallosis is defined as the accumulation and deposition of metallic particles secondary to abnormal wear from prosthetic implants that may be visualized as abnormal macroscopic staining of periprosthetic soft tissues. This phenomenon occurs secondary to the release of metal ions and particles from metal-on-metal hip implants in patients with end-stage osteoarthritis. Ions and particles shed from implants can lead to local inflammation of surrounding tissue and less commonly, very rare systemic manifestations may occur in various organ systems.” Chinedu C. Edu, et al., The Mechanism of Metallosis After Total Hip Arthroplasty, 7 REGENERATIVE ENG’G & TRANSLATIONAL MED. 247, 247 (2021), https://link.springer.com/article/10.1007/s40883- 021-00222-1 [https://perma.cc/E324-RV2L].

3 (S.D.N.Y. 2022). Rouviere appealed. 2 We assume the parties’ familiarity with the

remaining underlying facts, procedural history, and issues on appeal.

I. Standard of Review

We review decisions granting summary judgment, including those based on

a statute of limitations defense, de novo. Benzemann v. Houslanger & Assocs., PLLC,

(2d Cir. 2019). Summary judgment is proper only when, construing

the evidence in the light most favorable to the non-movant, there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter

of law.

Pro se submissions are liberally construed to raise the strongest

arguments they suggest. McLeod v. Jewish Guild for the Blind,

(2d

Cir. 2017). “We may affirm on any ground with support in the record, including

grounds upon which the district court did not rely.” Jusino v. Fed’n of Cath. Tchrs.,

Inc.,

(2d Cir. 2022) (internal quotation marks and citation omitted),

cert. denied,

(2023).

2 Rouviere’s husband was a plaintiff in the district court but has not appealed the district court’s dismissal of his derivative claim for loss of consortium. 4 II. Statute of Limitations

We affirm the district court’s summary judgment decisions for both Stryker

and DePuy on limitations grounds. The record reveals no genuine dispute of

material fact that the relevant symptoms began before May 2015. Rouviere’s 2018

complaint is therefore time barred.

a. DePuy Raised the Defense Below

We may affirm summary judgment for DePuy based on the statute of

limitations because DePuy raised the affirmative defense in its answer to the

amended complaint. Accordingly, the defense was preserved. See Kulzer v.

Pittsburgh-Corning Corp.,

, 124–25 (2d Cir. 1991); see also Nicholas v.

Miller,

(2d Cir. 1999) (considering qualified immunity affirmative

defense on appeal where defendants-appellees did not raise the defense in their

summary judgment motion but did so in their answer). Rouviere also had an

opportunity to respond to the argument below in her opposition to Stryker’s

motion for summary judgment. See Curry v. City of Syracuse,

(2d

Cir. 2003) (addressing notice and opportunity to respond). Furthermore, the

arguments regarding limitations are identical for both defendants. 5 b. Applicable Law on Statutes of Limitations

The parties agree a four-year statute of limitations applies to Rouviere’s

breach of warranty claims, pursuant to

. A breach of warranty

claim accrues “when tender of delivery is made” regardless of “the aggrieved

party’s lack of knowledge of the breach.”

§ 2-725(2). “There is no provision for

an extension of the limitations period linked to the discovery of the breach.” Meyer

v. Seidel,

(2d Cir. 2023).

The parties agree that New York law applies to Rouviere’s diversity suit,

but they dispute which of two statutes governs the accrual of Rouviere’s product

liability claims under N.Y. C.P.L.R.—§ 214(5), or the more plaintiff-friendly § 214-

c(2). For the purposes of this appeal, we will assume, without deciding, that the

case is governed by § 214-c(2), under which “a cause of action accrues in the toxic

tort context when a plaintiff discovers an injury.” In re World Trade Ctr. Lower

Manhattan Disaster Site Litig.,

(2d Cir. 2014) (citing

-c(2)). Importantly, the New York Court of Appeals has held that this accrual

happens “when the injured party discovers the primary condition on which the

claim is based,” and not when “the connection between [the] symptoms and the 6 injured’s exposure to a toxic substance is recognized.”

(alteration in original)

(quoting In re New York Cnty. DES Litig.,

(1997)). Accordingly,

accrual does not depend “on the medical sophistication of the individual plaintiff

[or] the diagnostic acuity of his or her chosen physician.”

(alteration in original)

(internal quotation marks omitted).

c. Product Liability Application

Rouviere’s product liability claims are time barred because there is no

genuine dispute of material fact that she discovered “the manifestations or

symptoms” of her injury from the hip replacement more than three years before

she filed suit in 2018.

(quoting DES Litig.,

). In her Rule 56.1

statement, she did not dispute that she experienced the relevant symptoms from

2012 to 2014. She connected those symptoms to her hip replacement in her

amended complaint. Even if, as she argues on appeal, Rouviere did not

subjectively identify the impingement of the hip replacement products as the

cause of these symptoms before her revision surgery in 2016, that would not

prevent her claim from accruing. See

And as the district court concluded,

Rouviere’s claim that her pre-2016 symptoms were due to her pre-existing 7 conditions contradicts her position from an earlier stage in the litigation. See

Rouviere, 645 F. Supp. 3d at 171–75; Bellefonte Re Ins. Co. v. Argonaut Ins. Co.,

(2d Cir. 1985) (“A party’s assertion of fact in a pleading is a judicial

admission by which it is normally bound throughout the course of the

proceeding.”).

Accordingly, we affirm summary judgment on Rouviere’s product liability

claims.

d. Breach of Warranty

Rouviere’s breach of warranty claims are also time barred because they

accrued, at the latest, on the date of her surgery in August 2012, which is the last

day the relevant products could have been delivered and was more than four years

before she sued in May 2018. See Schrader v. Sunnyside Corp.,

(2d Dep’t 2002) (accrual occurs for express and implied warranty claims when “the

product is placed in the stream of commerce or at the time of sale by the

manufacturer”).

e. Equitable Estoppel and Tolling

We also affirm the decision to deny the application of equitable estoppel or 8 tolling to Rouviere’s claims. “Under New York law, the doctrines of equitable

tolling or equitable estoppel ‘may be invoked to defeat a statute of limitations

defense when the plaintiff was induced by fraud, misrepresentations or deception

to refrain from filing a timely action.’” Meyer,

(emphasis omitted)

(quoting Abbas v. Dixon,

(2d Cir. 2007)). To establish either

equitable estoppel or tolling, Rouviere must demonstrate that specific actions by

defendants kept her from timely bringing suit. See

Here, Rouviere’s argument on behalf of equitable tolling and/or estoppel

relies on defendants’ alleged concealment of the defectiveness of their products

and their misrepresentations to the U.S. Food and Drug Administration (“FDA”)

about the safety of their products. But even assuming those allegations are true,

those are the same allegations that form the substance of Rouviere’s failure-to-

warn claims. See Meyer,

(explaining that the misrepresentations that

trigger tolling cannot be the same misrepresentations underpinning the claim).

Furthermore, Rouviere fails to explain what “subsequent and specific

action” DePuy and Stryker took, beyond their initial alleged omissions and

representations about the safety of their products, to prevent her from timely 9 suing. See Putter v. North Shore Univ. Hosp.,

(2006). None of the

allegedly fraudulent actions concern Rouviere. She has not shown that either

defendant misrepresented the appropriate statute of limitations or sought to

prevent her suit after she began to experience symptoms from her hip

replacement. Furthermore, she has not shown that she did not file her suit within

the statute of limitations because she reasonably relied on the defendants’ alleged

misrepresentations to the FDA. See Zumpano v. Quinn,

(2006).

Accordingly, we affirm the district court’s denial of equitable tolling and

estoppel and affirm the district court’s decisions because Rouviere’s claims are

time barred.

* * *

We have considered Rouviere’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

Rouviere’s pending motion to file a sur-reply is denied as moot.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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