                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
_____________________________
                               )
MARLA HUNT,                    )
                               )
     Plaintiff,                )
                               )
     v.                        )    Civil Action No. 03-900 (RWR)
                               )
DEPUY ORTHOPAEDICS, INC.,     )
                               )
     Defendant.                )
_____________________________ )

                   MEMORANDUM OPINION AND ORDER

     Plaintiff Marla Hunt has sued DePuy Orthopaedics, Inc.

(“DePuy”), manufacturer of her prosthetic hip, for breach of

implied warranties, breach of express warranty, and replevin.

DePuy moves for summary judgment, arguing that no express

warranty was made, and that the implied warranty and replevin

claims are barred by the statute of limitations.   Because DePuy’s

argument regarding the express warranty is unopposed, and the

statute of limitations has run on the breach of implied warranty

claims, but not on the replevin claim, DePuy’s motion for summary

judgment will be granted in part and denied in part.

                            BACKGROUND

     In January 1994, Hunt, a Maryland resident (Am. Compl. ¶ 2),

had replacement hip surgery in the District of Columbia.    (Def.’s

Mem. of P. & A. in Supp. of Renewed Mot. for Summ. J. (“Def.’s

Mem.”) at 4.)   Her surgeon, Dr. James Graeter, used a prosthetic

hip manufactured by DePuy, an Indiana corporation.   (Def.’s Mem.
                                   -2-

at 5; Notice of Removal ¶ 2.)   Before and after her surgery,

Dr. Graeter told Hunt that the prosthesis would last “25 years to

life.”   (Am. Compl. ¶¶ 11, 17.)    Hunt believes Dr. Graeter based

this statement on representations made to him by DePuy.      (Def.’s

Mem. at 7.)   In April 1999, Dr. Paul Manner repaired Hunt’s

prosthetic hip that Dr. Graeter had implanted.      (Id. at 6.)

Following her 1999 surgery, Dr. Manner told Hunt that a DePuy

sales representative took possession of a hip prosthesis part

that had been removed from her.     (Id.)

     Hunt filed against DePuy in the Superior Court for the

District of Columbia an action which was removed to this court

based upon diversity jurisdiction.       She was given leave to depose

Dr. Graeter, but after meeting with him, represented that

Dr. Graeter’s deposition would be unnecessary.      (Nov. 3, 2006

Status Report at 2.)   Hunt’s amended complaint alleges claims for

breach of implied warranty of fitness for a particular purpose,

breach of implied warranty of merchantability, breach of express

warranty, and replevin.   DePuy moves for summary judgment,

arguing that the implied warranty and replevin claims --

Counts 1, 2, and 4 -- are barred by the statute of limitations,

and that the express warranty claim -- Count 3 -- must fail
                                 -3-

because there is no evidence that DePuy made an express warranty

to Hunt.   (Def.’s Mem. at 8, 12.)     Hunt filed an opposition.1

                             DISCUSSION

     On a motion for summary judgment, “[t]he inquiry performed

is the threshold inquiry of determining whether there is the need

for a trial -- whether, in other words, there are any genuine

factual issues that properly can be resolved only by a finder of

fact because they may reasonably be resolved in favor of either

party.”    Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

(1986).    Summary judgment may be granted only where “the

pleadings, the discovery and disclosure materials on file, and

any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a

matter of law.”   Fed. R. Civ. P. 56(c).     A material fact is one

that is capable of affecting the outcome of the litigation.

Liberty Lobby, Inc., 477 U.S. at 248.      A genuine issue is one

where the “evidence is such that a reasonable jury could return a

verdict for the nonmoving party[,]” as opposed to evidence that

“is so one-sided that one party must prevail as a matter of law.”



     1
       Hunt’s opposition did not address DePuy’s motion for
summary judgment as to the express warranty claim, and asked only
that DePuy’s motion for summary judgment be denied as to her
claims concerning the implied warranties of fitness for a
particular purpose and of merchantability and for replevin.
(Pl.’s Opp’n at 19.) The motion regarding the express warranty
claim is deemed conceded. See Peter B. v. CIA, Civil Action No.
06-1652 (RWR), 2009 WL 1529211, at *5 (D.D.C. June 1, 2009).
                                 -4-

Id. at 248, 252.   A court considering a motion for summary

judgment must draw all “justifiable inferences” from the evidence

in favor of the nonmovant.   Id. at 255.     The nonmoving party,

however, must do more than simply “show that there is some

metaphysical doubt as to the material facts.”     Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

Rather, the nonmovant must “come forward with specific facts

showing that there is a genuine issue for trial.”      Id. at 587

(emphasis in original) (internal quotation marks omitted).     In

the end, “the plain language of Rule 56(c) mandates the entry of

summary judgment . . . against a party who fails to make a

showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear

the burden of proof at trial.”   Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986).

I.   CHOICE OF LAW

     “A federal court sitting in diversity must apply state law

to the substantive issues before it[,]” and limitations periods

are considered substantive issues requiring resort to state law

for the purposes of this inquiry.      A.I. Trade Fin., Inc. v. Petra

Int’l Banking Corp., 62 F.3d 1454, 1458 (D.C. Cir. 1995).      In

order to determine whether the District of Columbia or Maryland’s

limitations periods apply, a “federal court looks to the

choice-of-law rules of the state in which it sits.”     Id.   The

District of Columbia choice-of-law rule requires the District’s
                                -5-

own limitations periods to be applied.    Material Supply Int’l,

Inc. v. Sunmatch Indus. Co., Ltd., 146 F.3d 983, 992 (D.C. Cir.

1998) (citing A.I. Trade Fin., Inc., 62 F.3d at 1458); see also

Tolbert v. Nat’l Harmony Mem’l Park, 520 F. Supp. 2d 209, 211

(D.D.C. 2007) (stating that because a federal court applies the

choice-of-law rules of the state in which it sits in a diversity

case, the court looked to the District of Columbia’s choice-of-

law rule, which required application of the District’s own

limitations periods).   Since DePuy raises statute of limitations

arguments for Counts 1, 2, and 4, the District of Columbia’s

limitations periods will be applied.

II.   IMPLIED WARRANTIES - COUNTS 1 & 2

      DePuy asserts that Hunt’s implied warranty claims are time-

barred because the statute of limitations began running on

January 10, 1994, when Hunt underwent hip surgery, and ended on

January 10, 1998.   (Def.’s Mem. at 13-14.)   Hunt did not file

suit until 2003.

      Under D.C. Code § 28:2-725, “[a]n action for breach of any

contract for sale must be commenced within four years after the

cause of action has accrued.”   D.C. Code § 28:2-725(1).   See also

Lee v. Wolfson, 265 F. Supp. 2d 14, 19 (D.D.C. 2003) (applying

§ 28:2-725 to a breach of implied warranty claim involving an

automobile).   In determining when the statute of limitations

starts to run, § 28:2-725 states that
                                -6-

     [a] cause of action accrues when the breach occurs,
     regardless of the aggrieved party’s lack of knowledge
     of the breach. A breach of warranty occurs when tender
     of delivery is made, except that where a warranty
     explicitly extends to future performance of the goods
     and discovery of the breach must await the time of such
     performance the cause of action accrues when the breach
     is or should have been discovered.

D.C. Code § 28:2-725(2).   Claims for breach of implied warranties

do not fall within the exception for warranties that extend to

future performance.   See Britt v. Schindler Elevator Corp., 637

F. Supp. 734, 738 (D.D.C. 1986) (rejecting the argument that “all

implied warranties are necessarily continuing and that [the]

claim falls within the ‘future performance’ exception to Section

28:2-725(2)”); 63B Kimberly Castelaz et al., American

Jurisprudence - Products Liability § 1584 (2d ed. 2008) (“The

impossibility of discovering a defect at the time of sale or

delivery will not ordinarily create a warranty that extends to

future performance . . .; it has been recognized, in this regard,

that an implied warranty, by its very nature, cannot explicitly

extend to future performance for purposes of taking advantage of

the discovery rule.”).   Hunt does not allege that the implied

warranties of fitness and merchantability were explicitly

extended to future performance.2


     2
       The District of Columbia’s statutory definitions for
implied warranties of fitness and merchantability do not make an
explicit mention of future performance. Under D.C. Code § 28:2-
315, “[w]here the seller at the time of contracting has reason to
know any particular purpose for which the goods are required and
that the buyer is relying on the seller’s skill or judgment to
                                -7-

     Hunt argues that “the particular issues involved in this

case have not been presented to the District of Columbia Court of

Appeals for review in quite a few years - if ever[,]” and that

the discovery rule should apply.   (Pl.’s Opp’n at 4-5.)   Under

the discovery rule, the statute of limitations is tolled until

the plaintiff knows or through due diligence should have known of

the injury.   Ehrenhaft v. Malcolm Price, Inc., 483 A.2d 1192,

1201 (D.C. 1984).   If the discovery rule were to apply, the cause

of action would not have accrued until Hunt learned about the

product’s defect in April 1999 when she spoke with Dr. Manner and

the statute of limitations would not bar her claim.   (Pl.’s Opp’n

at 4.)   However, in Hull v. Eaton Corp., 825 F.2d 448, 456 (D.C.



select or furnish suitable goods, there is unless excluded or
modified under the next section an implied warranty that the
goods shall be fit for such purpose.” Under D.C. Code § 28:2-
314, “a warranty that the goods shall be merchantable is implied
in a contract for their sale if the seller is a merchant with
respect to goods of that kind.” Merchantable goods must be

    at least such as (a) pass without objection in the
    trade under the contract description; and (b) in the
    case of fungible goods, are of fair average quality
    within the description; and (c) are fit for the
    ordinary purposes for which such goods are used; and
    (d) run, within the variations permitted by the
    agreement, of even kind, quality and quantity within
    each unit and among all units involved; and (e) are
    adequately contained, packaged, and labeled as the
    agreement may require; and (f) conform to the promises
    or affirmations of fact made on the container or label
    if any.

D.C. Code § 28:2-314(2).
                               -8-

Cir. 1987), the D.C. Circuit concluded that under § 28:2-725, the

discovery rule did not extend to breach of warranty claims.

While Ehrenhaft had extended the discovery rule to include a

breach of warranty claim involving the design and construction of

a house, Hull differed because it involved, as this case does,

“warranties arising under the Uniform Commercial Code”3 and

§ 28:2-725 explicitly defined when a cause of action accrued.

Hull, 825 F.2d at 456, 457 n.12 (noting also that there was no

contrary controlling authority and giving deference to the

district court’s knowledge of local law).   See also Kuwait

Airways Corp. v. Am. Sec. Bank, N.A., 890 F.2d 456, 460-61 (D.C.

Cir. 1990) (noting that the D.C. Circuit declined in Hull to

apply the discovery rule in a breach of warranty product

liability case); Long, 877 F. Supp. at 14 (“Until the District of

Columbia Court of Appeals rules otherwise, the discovery rule

does not apply to determine when the statute of limitations

begins to run for breach of warranty products liability claims.

Rather, under [§ 28:2-725], the statute of limitations accrues

when tender of delivery of the warrantied product is made.”).

Even though Hunt was unaware of the product’s defect until 1999,

under § 28:2-725, the statute of limitations started when the



     3
       “The Uniform Commercial Code sections applying to breaches
of warranty have been adopted and codified in . . . the District
of Columbia[.]” Long v. Sears Roebuck & Co., 877 F. Supp. 8, 11
(D.D.C. 1995).
                                 -9-

prosthesis was delivered to her in 1994 and expired in 1998.

Hunt’s breach of implied warranty claims for merchantability and

fitness for a particular purpose are time-barred.

III. REPLEVIN - COUNT 4

     Replevin is an action “brought to recover personal property

to which the plaintiff is entitled, that is alleged to have been

wrongfully taken by or to be in the possession of and wrongfully

detained by the defendant[.]”   D.C. Code § 16-3701.   “[I]t is not

necessary to demand possession of the property before bringing

the action.”   Id.   According to D.C. Code § 12-301, the statute

of limitations is three years for claims involving “the recovery

of personal property or damages for its unlawful detention.”

D.C. Code § 12-301(2) (2007); see also Arnold v. District of

Columbia, 211 F. Supp. 2d 144, 147 (D.D.C. 2002) (noting the

three year statute of limitations for a replevin claim).

     Generally, under D.C. Code § 12-301, a cause of action can

be brought within the given time period from when “the time the

right to maintain the action accrues.”   Capitol Place I Assocs.

L.P. v. George Hyman Constr. Co., 673 A.2d 194, 198 (D.C. 1996).

DePuy argues that Hunt’s replevin claim is barred by the District

of Columbia’s statute of limitations because the claim started to

accrue when it took possession of the medical device following

Hunt’s surgery in 1999.   (Def.’s Mem. at 15.)   Hunt contends that

accrual did not start until she requested the return of the
                               -10-

prosthesis in her 2003 complaint because she did not object to

DePuy taking possession of the device “on the assumption that it

was going to be examined and tested by the defendant to ascertain

what had gone wrong with it and why it had failed in less than

five (5) years.”   (Pl.’s Opp’n at 18.)   The District of Columbia

Court of Appeals has not addressed the issue of when a replevin

claim accrues in a situation where a plaintiff agreed to give

property to a defendant and only later demanded its return.      In

Saddler v. D’Ambrosio, 759 F. Supp. 4, 9 n.6 (D.D.C. 1990), the

court noted that a common law replevin claim expired three years

after the date on which the defendant took possession of the

property.   However, the Saddler plaintiff had immediate knowledge

of the defendant’s possession of his property without his consent

as the property was taken as evidence during his arrest.    By

comparison, Hunt did not contest giving the prosthesis to DePuy

and the alleged injury, DePuy’s wrongful withholding, did not

accrue until she demanded return of the prosthesis in 2003.      Hunt

does not allege that DePuy’s possession of the prosthesis was

wrongful starting from her surgery in 1999, but that “[i]t is the

detention of the prosthesis after its return was requested in

January, 2003 about which the plaintiff now complains.”    (Pl.’s

Opp’n at 18.)   Prior to Hunt’s request, there was no wrongful

withholding, which is required to bring a replevin claim.   See

generally Mac’Avoy v. Smithsonian Inst., 757 F. Supp. 60, 67
                                -11-

(D.D.C. 1991) (noting that the essence of replevin is “the

wrongful withholding of the property in question”).    Summary

judgment, then, is not warranted on this claim.4

                        CONCLUSION AND ORDER

     Because the breach of implied warranty claims were filed

after the statute of limitations expired and DePuy’s motion

regarding the express warranty claim has been conceded, DePuy’s

motion for summary judgment will be granted as to Counts 1, 2,

and 3.   Because Hunt agreed to give DePuy the prosthesis and the

wrongful detention claim did not accrue until Hunt asked that the

prosthesis be returned, DePuy’s motion for summary judgment will

be denied as to Count 4.   Accordingly, it is hereby

     ORDERED that defendant’s motion for summary judgment [52]

be, and hereby is, GRANTED in part and DENIED in part.   Summary

judgment as to the breach of implied warranty claims -- Counts 1

and 2 -- and the express warranty claim -- Count 3 -- is granted

to the defendant.   Summary judgment as to the replevin claim --

Count 4 -- is denied.   It is further

     ORDERED that the parties confer and file a joint status

report and proposed order by August 31, 2009, recommending how

the case should proceed.


     4
       DePuy also argues that it was never in possession of the
prosthesis, but this remains a disputed factual issue. (Pl.’s
Opp’n, Ex. 1 at 3 (noting Dr. Manner’s belief that the DePuy
representative requested and would have received the prosthesis
after Hunt’s surgery).)
                          -12-

SIGNED this 18th day of July, 2009.



                                       /s/
                         RICHARD W. ROBERTS
                         United States District Judge
