     Case: 11-50007     Document: 00511580374         Page: 1     Date Filed: 08/23/2011




              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                               Fifth Circuit

                                                                            FILED
                                                                          August 23, 2011
                                     No. 11-50007                          Lyle W. Cayce
                                   Summary Calendar                             Clerk

LYNN BRANDAU,

                                                  Plaintiff - Appellant,

v.

HOWMEDICA OSTEONICS CORPORATION, Improperly named as Stryker
Orthopaedics; STRYKER CORPORATION; STRYKER SALES
CORPORATION,

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:10-CV-806


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Lynn Brandau (Brandau) brought a products liability
suit against Defendants-Appellees Howmedica Osteonics Corporation et al.
(collectively HOC), alleging design, manufacturing, and marketing defects
relating to a Scorpio TS prosthesis implanted in her right knee. HOC moved to

        *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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dismiss, and the district court granted the motion. For the following reasons, we
REVERSE and REMAND.
                                       I.
      On October 2, 2007, Brandau underwent a right revision total knee
orthoplasty during which her surgeon, Dr. David Templin (Templin), implanted
a Scorpio TS knee replacement manufactured by HOC. In January 2008,
Brandau began to experience pain in her right knee. The pain continued over
time and got progressively worse, and on September 12, 2008, Templin took an
x-ray of the prosthesis. According to the x-ray, it appeared that the stem on the
tibial component of the Scorpio TS had come loose. Brandau sought and received
a second opinion from Dr. Elliot Clements, who confirmed Templin’s diagnosis.
Subsequently, on February 24, 2009, Brandau underwent a second revision
surgery. Upon removal of the Scorpio TS implant, it became apparent that the
threaded stem on the tibial component had worked its way loose, causing
instability of the prosthesis.
      On September 10, 2010, Brandau filed suit in state court, alleging design,
manufacturing, and marketing defects relating to the failure of the Scorpio TS
device. Proceedings were removed to federal court and shortly thereafter, HOC
filed a motion to dismiss according to Federal Rule of Civil Procedure 12(b)(6).
HOC asserted that Brandau’s claim accrued in January 2008 and therefore her
September 10, 2010 filing was time barred. TEX. CIV. PRAC. & REM. CODE §
16.0003(a). In response, Brandau argued that the Texas discovery rule delayed
accrual of her claim until September 12, 2008, when she received an x-ray and
tentative diagnosis from Templin. After briefing from both parties, the district
court granted the motion. Brandau appealed.




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                                         II.
                                         A.

     “We review de novo the grant of a 12(b)(6) motion to dismiss.” Harrington
v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009). “This Court
construes the complaint liberally in favor of the plaintiff, and takes all facts
pleaded in the complaint as true.” Id. (citing Campbell v. Wells Fargo Bank, 781
F.2d 440, 442 (5th Cir.1986)). Rule 12(b)(6) dismissal “is appropriate when the
plaintiff has failed to allege ‘enough facts to state a claim to relief that is
plausible on its face’ and fails to ‘raise a right to relief above the speculative
level.’” Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137, 140 (5th
Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)).
                                         B.
                                1. Applicable Law
      Texas substantive law applies to this diversity case. Foradori v. Harris,
523 F.3d 477, 486 (5th Cir. 2008) (citing Gasperini v. Ctr. For Humanities, Inc.,
518 U.S. 415, 426–27 (1996)). In Texas, a two-year statute of limitations governs
personal injury actions. TEX. CIV. PRAC. & REM. CODE § 16.003(a) (“[A] person
must bring suit for . . . personal injury . . . not later than two years after the day
the cause of action accrues.”). Under this statute, “[a] cause of action accrues
when the legal wrong is completed and the plaintiff is entitled to commence suit,
even if the party is unaware of the wrong.” Porterfield v. Ethicon, Inc., 183 F.3d
464, 467 (5th Cir. 1999).

      However, “[t]he discovery rule exception defers accrual of a cause of action
until the plaintiff knew or, exercising reasonable diligence, should have known
of the facts giving rise to the cause of action.” Computer Assocs. Int’l, Inc. v.
Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996). Texas courts have only employed




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the “discovery rule exception in certain limited circumstances.” Id. at 456.
Specifically, for the discovery rule to apply, “the nature of the injury must be
inherently undiscoverable and the injury itself must be objectively verifiable.”
Barker v. Eckman, 213 S.W.3d 306, 312 (Tex. 2006) (citing HECI Exploration Co.
v. Neel, 982 S.W.2d 881, 886 (Tex. 1998)).

      On appeal, Brandau argues that her injury is of an inherently
undiscoverable nature. Therefore, the limitation period is extended by the Texas
discovery rule. Under the discovery rule, Brandau contends that her injury was
inherently undiscoverable until September 12, 2008, when Templin took an x-
ray of the prosthesis and discovered that the stem was loose. Consequently, she
argues, her cause of action accrued on that date, thus making her September 10,
2010 filing fall within the two-year limitations period. In the alternative, she
argues that the record does not contain enough facts to determine, as a matter
of law, that the discovery rule does not apply to her injury.

      HOC contends that the district court was correct in granting its 12(b)(6)
motion and sets forth three main arguments. First, HOC contends that Brandau
failed to adequately plead the discovery rule in her petition as required by Texas
state law and it was therefore inapplicable. Second, HOC argues that, as a
matter of law, the Texas discovery rule does not apply to Brandau’s claim. Thus,
Brandau’s injury accrued in January 2008 when she first began to experience
pain in her knee, making her claim— filed on September 10, 2010— barred by
the two-year limitations statute. TEX. CIV. PRAC. & REM. CODE § 16.0003(a).
Finally, HOC argues that, even if the discovery rule could apply, it was clear
from her petition that Brandau’s accrual date was in January 2008, making the
filing nine months too late.




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                           2. Pleading Requirements

      HOC argues that Brandau did not raise the discovery rule in her pleading,
as required by Texas state court. Thus, HOC contends Brandau should be
barred from claiming that the discovery rule applies. We disagree. HOC’s
argument fails because, while Texas courts may require plaintiffs to include
specific reference to the discovery rule in pleadings,“[t]he discovery rule need not
be specifically pleaded in federal court.” TIG Ins. Co. v. Aon Re, Inc., 521 F.3d
351, 357 (5th Cir. 2008). Under Federal Rule of Civil Procedure 8, “it is enough
that the plaintiff plead sufficient facts to put the defense on notice of the theories
on which the complaint is based.” Id. (internal quotation marks omitted). The
facts pleaded by Brandau—that she did not start to experience pain until three
months after her surgery and did not receive a tentative diagnosis until
September 2008—gave HOC sufficient notice that Brandau might assert that
the discovery rule applies.

                            3. Statute of Limitations

      We have carefully reviewed the record and conclude that Brandau has pled
facts sufficient to survive a motion for dismissal under Federal Rule of Civil
Procedure 12(b)(6). Therefore, the district court’s judgment to dismiss was
improper at this stage. Before we discuss why we disagree with the district
court’s judgment, as a preliminary matter we address two holdings by the
district court we conclude are misplaced.

                                         (a)

      First, we have found no case law supporting the district court’s conclusion
that, if an injury is discovered inside the usual limitations period, the accrual
date cannot, as a matter of law, be delayed by the discovery rule. At least one
Texas court of appeals case has explicitly held to the contrary. In Dike v. Peltier



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Chevrolet, Inc., the court of appeals concluded that, if discovery of an injury
within the limitations period placed an irrefutable burden on the injured party
to file suit within the usual period, a plaintiff who discovered her injury on the
last day of the applicable period would “be forced to file a lawsuit within one day
or be thereafter barred.” —S.W.3d—, 2011 WL 1205246, at *11 n.12 (Tex.
App.—Texarkana 2011, no pet.). We agree with this reasoning. Thus, we
conclude that the fact that Brandau discovered her injury within the limitations
period does not bar her from applying the discovery rule to delay accrual of her
cause of action.

      Next, the district court found that, even assuming the discovery rule
applied to Brandau’s claim, it was nevertheless time barred. The district court
held that Brandau’s cause of action accrued in January of 2008, as her pain
provided her with “knowledge of such facts as would cause a reasonably prudent
person to make an inquiry that would lead to discovery of the cause of action.”
Vaught v. Showa Denko K.K., 107 F.3d 1137, 1140 (5th Cir. 1997). In support
of this conclusion, the court cites Bell v. Showa Denko K.K., 899 S.W.2d 749, 754
(Tex. App.—Amarillo 1995, writ denied), and Vaught, 107 F.3d at 1142. HOC
urges us to adopt this reasoning. However, we are not persuaded by this
reasoning. Both the Bell and Vaught court’s held that the plaintiffs’ cause of
action accrued only after they received some information regarding a tentative
diagnosis, not when they began to experience pain or discomfort. See Bell, 899
S.W.2d at 754 (finding that the statute of limitations began to run after plaintiff
received a letter with a preliminary diagnosis from her physician); Vaught, 107
F.3d at 1141 (5th Cir. 1997) (finding that plaintiff’s cause of action accrued after
she “read the newspaper article [concerning her ailments]; connected her
symptoms with [a particular disease]; and contacted the lawyer’s office”).




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      Although not binding precedent, our decision in Pavich v. Zimmer, Inc.,
No. 97-20901, 1998 WL 612290 (5th Cir. Aug. 27, 1998), is directly on point. In
Pavich, we applied the Texas discovery rule to a products liability case involving
surgically implanted rods. Id. at *2. We held that “[a]lthough [Pavich] began
to experience increased pain in early 1994,” it was not until after a consultation
on May 12, 1994 “that he acquired the knowledge he needed to discover he had
a cause of action.” Id. It was on that date that Pavich’s doctor reviewed the
intravenous pyelogram, a series of x-rays taken of the kidneys, and discovered
probable breaks in the rods implanted in Pavich’s back. Id. Therefore, it was
not when Pavich began to experience pain that his injury accrued, but after he
received a tentative diagnosis from his doctor. Id.

      The facts in Pavich are analogous to the facts in the present case. Like
Pavich, Brandau began to experience pain months before she received an x-ray
from her doctor and discovered the tentative cause of her injury. Therefore, as
we did in Pavich, we conclude that Brandau’s cause of action did not
automatically accrue when she began to experience pain. We now turn to the
district court’s judgment.

                                       (b)

      The district court held that, as a matter of law, Brandau’s injury was not
inherently undiscoverable because Brandau discovered her injury within the
limitations period. Thus, the discovery rule did not apply. However, this is not
the proper inquiry for determining whether an injury is inherently
undiscoverable under Texas law.

      As previously mentioned, in order for the Texas discovery rule to apply,
the injury must be (1) “inherently undiscoverable” and (2) “objectively
verifiable.” Barker, 213 S.W.3d at 312. The parties do not dispute the fact that




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the pain was caused by the failure of the Scorpio TS, making Brandau’s injury
objectively verifiable. Therefore, our analysis focuses on whether the injury is
“inherently discoverable.” “‘An injury is inherently undiscoverable if it is, by its
nature, unlikely to be discovered within the prescribed limitations period despite
due diligence.’” Via Net v. TIG Ins. Co., 211 S.W.3d 310, 313–314 (Tex. 2006)
(quoting Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 734–35 (Tex. 2001)).
Whether an injury is inherently undiscoverable “is decided on a categorical
rather than case-specific basis.” Id. at 314. This “approach means we do not
determine when a particular injury was actually discovered in any particular
case, but rather whether that case is of the type to which the discovery rule
applies.” Apex Towing Co. v. Tolin, 41 S.W.3d 118, 122 (Tex. 2001) (citing S.V.
v. R.V., 933 S.W.2d 1, 6 (Tex. 1996)). Thus, the district court’s focus on whether
Brandau discovered her injury within the limitations period is misplaced. The
proper inquiry is whether Brandau’s injury is in a category of injuries that have
been identified as inherently undiscoverable under Texas law.

       Although there is no Texas case that directly places Brandau’s injury in
a category to which the discovery rule is applicable, the Fifth Circuit applying
Texas law has repeatedly held that the discovery rule defers the accrual of
injuries resulting from implanted devices. See, e.g., Porterfield, 183 F.3d at 467
(applying the discovery rule to a products liability claim when plaintiff suffered
problems resulting from surgically implanted mesh); Woodruff v. A.H. Robbins
Co., 742 F.2d 228, 229 (5th Cir. 1984) (applying the discovery rule to a products
liability claim where plaintiff suffered complications from a defective IUD);
Mann v. A.H. Robbins Co., 741 F.2d 79, 79–81 (5th Cir. 1984) (same). As
Brandau asserts products liability claims based on injury from a surgically
implanted device, the discovery rule is applicable in this case.




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      Moreover, we disagree with HOC’s argument that, because an x-ray was
able to reveal the provisional cause of Brandau’s injury, the injury was not
inherently undiscoverable. Our analysis in Pavich indicates that the method of
determining the cause of an injury does not dictate whether an injury is
discoverable. See Pavich, 1998 WL 612290, at *2. Furthermore, as previously
explained, the proper inquiry for determining whether an injury is inherently
undiscoverable is not whether the specific injury was discovered in this case, but
whether an injury fits into a specific category that has been deemed inherently
undiscoverable. See Apex, 41 S.W.3d at 122.

      In sum, Rule 12(b)(6) dismissal is only appropriate “when the plaintiff has
failed to allege ‘enough facts to state a claim to relief that is plausible on its face’
and fails to ‘raise a right to relief above the speculative level.’” Nationwide
Bi-Weekly Admin., Inc., 512 F.3d at 140 (5th Cir. 2007) (quoting Twombly, 550
U.S. at 555, 570). Here, Brandau alleges that upon removal of the prosthesis it
became apparent that the threaded stem on the tibial component had worked its
way loose, causing instability. Additionally, she alleges she first became aware
of a possible defect in the prosthesis on September 12, 2008, when Templin
reviewed an x-ray of the device. Construing the complaint liberally in favor of
Brandau, we conclude that she has pled facts sufficient to survive a 12(b)(6)
motion. Moreover, our review of Texas and Fifth Circuit cases applying the
discovery rule to injuries such as Brandau’s indicates that dismissal typically
occurs at the summary judgment phase, after facts added to the record can lead
to more fully formed conclusions. See, e.g., Porterfield, 183 F.3d at 466; Vaught,
107 F.3d at 1147; Bell, 899 S.W.2d at 760; Woodruff, 742 F.2d at 230; Mann, 741
F.2d at 82. Nothing in our holding should be construed as precluding further
factual development of the record leading that may bear on the continued




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viability of Branda’s claim.

                               III. Conclusion

      For the aforementioned reasons, we REVERSE the district court’s
judgment and REMAND this case for further proceedings consistent with this
opinion.




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