# KERBEL DIAZ v. C.R. BARD INC.

> District Court, D. New Jersey · May 15, 2023

URL: https://www.frixlaw.com/law-library/cases/10276558

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** May 15, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10276558

## How later opinions describe it (automated extraction)

- noting that timeliness of independent per quod claim could depend on spouse’s discovery of relevant facts, if separate and independent

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

SOCORRO KERBEL DIAZ, et al.,
Civ. Nos. 22-4725 (KM/LDW)

Plaintiff,

v.
OPINION
C.R. BARD, INC.,

Defendant.

KEVIN MCNULTY, U.S.D.J.:
This matter comes before the Court on the motion of the defendant, C.R.
Bard, Inc., to dismiss the complaint as untimely (DE 10), which the court
converted to a motion for summary judgment, pursuant to Fed. R. Civ. P. 12(d)
(DE 18). For the reasons stated herein, the motion is granted.
On August 30, 2010, Socorro Kerbel Diaz underwent a surgical
procedure whereby her surgeon implanted an “Align Urethral Support Sling
with mesh system” (“Align Sling”), a medical device manufactured by C.R. Bard.
(Id. at ¶ 17. Ms. Kerbel alleges that she soon “began to experience severe
complications related to the implant, including but not limited to extreme pain,
discomfort, urinary problems [and] dyspareunia.” Id. at ¶ 18. On July 1, 2014,
she had a procedure to remove the Align Sling. Id. at ¶ 19.
On July 29, 2022, Ms. Kerbel filed a Complaint in this Court, alleging
four causes of action for negligence (Count I), design defect (Count II), failure to
warn (Count III) and (on behalf of her spouse) loss of consortium (Count IV).
Compl. at ¶¶ 15-22.
The parties agree that New Jersey state law governs, and that the
applicable statute of limitations is two years. (See briefs in support of and in
opposition to motion to dismiss. (DE 10, 14)) Further, there is no dispute that
the device was implanted some twelve years, and removed some eight years,
before this complaint was filed in 2022. Ms. Kerbel asserts that her complaint
is nevertheless timely. Her argument is that the limitations period was tolled by
New Jersey’s “discovery rule” until she knew or should have known of the
nature and source of her injury.
C.R. Bard seemiongly kept its powder dry for the reply brief. Together
with that brief, it submitted an affidavit and 147 pages of exhibits, consisting
largely of court pleadings. Of course, a court may take judicial notice of the
existence of publicly filed pleadings whose authenticity is unquestioned, but I
was concerned that Ms. Kerbel had not had an opportunity to address them or
to contest their authenticity if appropriate. For that reason, I converted
defendant’s motion to one for summary judgment, pursuant to Fed. R. Civ. P.
12(d), and afforded Ms. Kerbel the opportunity to respond in kind. She did
respond with a supplemental brief (DE 19) and attached certain medical
records dating from September 2021 (DE 19-1).
The motion, then, is fully briefed and ripe for decision.
I. Summary Judgment Under Rules 12(d) and 56
Where a motion to dismiss introduces material extrinsic to the pleadings,
Fed. R. Civ. P. 12(d) permits the court to convert it to a motion for summary
judgment:
(d) Result of Presenting Matters Outside the Pleadings. If, on a
motion under Rule 12(b)(6) or 12(c), matters outside the pleadings
are presented to and not excluded by the court, the motion must
be treated as one for summary judgment under Rule 56. All parties
must be given a reasonable opportunity to present all the material
that is pertinent to the motion.
Fed. R. Civ. P. 12(d). In re Asbestos Products Liability Litigation (No. VI) (ex rel.
Hassell), 822 F.3d 125, 134 (3d Cir. 2016).
The standards governing a summary judgment motion are familiar.
Federal Rule of Civil Procedure 56(a) provides that summary judgment should
be granted “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48,
(1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). A fact
is “material” for purposes of a summary judgment motion if a dispute over that
fact “might affect the outcome of the suit under the governing law.” Anderson,
477 U.S. at 248.
To demonstrate the existence of a genuine issue, the nonmoving party
“must do more than simply show that there is some metaphysical doubt as to
material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). Likewise, “unsupported allegations ... and pleadings are
insufficient to repel summary judgment.” Schoch v. First Fid. Bancorporation,
912 F.2d 654, 657 (3d Cir. 1990). Rather, a party must present evidence
sufficient to create a triable issue. Anderson, 477 U.S. at 248–49. By evidence,
the Rule means “materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A).
III. DISCUSSION
A. Statute of Limitations and Discovery Rule
When a plaintiff knows or has reason to know that he has a
cause of action against an identifiable defendant and voluntarily
sleeps on his rights so long as to permit the customary period of
limitations to expire, the pertinent considerations of individual
justice as well as the broader considerations of repose, coincide to
bar his action. Where, however, the plaintiff does not know or have
reason to know that he has a cause of action against an
identifiable defendant until after the normal period of limitations
has expired, the considerations of individual justice and the
considerations of repose are in conflict and other factors may fairly
be brought into play.
Roa v. Roa, 200 N.J. 555, 570–71, 985 A.2d 1225, 1234 (2010) (quoting
Caravaggio v. D'Agostini, 166 N.J. 237, 245, 765 A.2d 182 (2001).
Under New Jersey law, product liability and negligence claims are subject
to a two-year statue of limitations, which begins to run when the cause of
action accrues. N.J. Stat. Ann. § 2A:14-2(a). The effect of that relatively short
limitations period is tempered by New Jersey’s “discovery rule,” which tolls the
running of the statute “until the injured party discovers, or by an exercise of
reasonable diligence and intelligence should have discovered” the basis for the
claim. N.J. Stat. Ann. § 2A:14-2. Accord Szczuvelek v. Harborside Healthcare
Woods Edge, 182 N.J. 275, 281 (2005) (quoting Lopez v. Swyer, 62 N.J. 267,
272 (1973)).1 To “discover” a cause of action, a party need not be in full
possession of all the facts, or fully versed as to their legal significance; rather,
the discovery rule delays the running of the statute only “until the client
learns, or reasonably should learn, the existence of a state of facts which may
equate in law with a cause of action. Accrual will not further be delayed until
the client learns from a lawyer the legal effect of those facts.” Burd v. New
Jersey Telephone Company, 76 N.J. 284, 291 (1978).
To put it another way, the accrual of the cause of action is effectively
postponed “so long as a party reasonably is unaware either that [she] has been
injured, or that the injury is due to the fault or neglect of an identifiable
individual or entity.” Savage v. Old Bridge-Sayreville Medical Group, P.A., 134
N.J. 241, 248 (1993). Where the injury and fault are not immediately evident,
“it must be shown that a reasonable person, in plaintiff’s circumstances, would
have been aware of such fault in order to bar her from invoking the discovery
rule.” Kendall v. Hoffman-LaRoche, Inc., 209 N.J. 173, 192 (2012). More
concretely, in a medical-device case, the plaintiff must be aware not only that
she is suffering some injury, but that there is a reasonable basis to believe that
the defendant manufacturer is at fault for it.
“Fault” in the context of the discovery rule is simply that it is
possible—not provable or even probable—that a third person's
conduct that caused the injury was itself unreasonable or lacking

1 Because Ms. Kerbel resides in Colorado, a conflict of laws issue could
potentially be presented. Ms. Kerbel agrees with C.R. Bard, however, that the law of
her chosen forum, New Jersey, applies. Both parties proffer that there is no conflict
between the laws of these two states regarding the statute of limitations. See Def. Brf.
(DE 10) p.4; Pl. Opp. (DE 14) pp. 4–5. The Court therefore defaults to forum law, the
law of New Jersey. Id. See generally Restatement (Second) of Conflict of Laws, §§ 6 &
145; Maniscalco v. Brother Int'l (USA) Corp., 709 F.3d 202, 206 (3d Cir. 2013).
in due care. In other words, knowledge of fault does not mean
knowledge of a basis for legal liability or a provable cause of action;
knowledge of fault denotes only facts suggesting the possibility of
wrongdoing. Thus, knowledge of fault for purposes of the discovery
rule has a circumscribed meaning: it requires only the awareness
of facts that would alert a reasonable person exercising ordinary
diligence that a third party's conduct may have caused or
contributed to the cause of the injury and that conduct itself might
possibly have been unreasonable or lacking in due care.
Savage, 134 N.J. at 248, 633 A.2d at 518.2
In connection with its motion to dismiss, C.R. Bard described prior
litigations between the parties in an effort to demonstrate that Ms. Kerbel
surely knew of her cause of action, having actually asserted it before in prior
litigations. In response to the motion to dismiss, the plaintiff relied heavily on
the principle that the applicability of the statute of limitations must be clear
from the face of the complaint. In reply, C.R. Bard submitted the actual
pleadings in those prior litigations, as well as other material, as exhibits. It was
at that point that the Court converted the motion to one for summary
judgment, and gave Ms. Kerbel the opportunity for a further response.
In converting a motion under Rule 12(d), the Court must of course be
sensitive to the risk of placing the plaintiff, who has not had the benefit of
discovery, at a disadvantage. In my view, this case did not present such a risk.
If no documents were at hand, she might nevertheless have submitted an
affidavit on personal knowledge, see Fed. R. Civ. P. 56(c)(4), or submitted an
affidavit explaining why essential facts were unavailable but could be obtained
in discovery, see Fed. R. Civ. P. 56(d). This she did not do. More generally, the

2 For simplicity, throughout this analysis I have referred to the plaintiff as Ms.
Kerbel. The same two-year statute of limitations applies to her husband’s per quod
claim, but theoretically the discovery rule could apply differently to the spouse’s
discovery of his injury, if independent. See generally Goodman v. Mead Johnson & Co.,
534 F.2d 566, 574 (3d Cir. 1976) (noting that timeliness of independent per quod claim
could depend on spouse’s discovery of relevant facts, if separate and independent);
Lukasewicz v. Valtris Specialty Chem. Co., No. 221CV04128SRCCLW, 2022 WL
1451531, at *1 (D.N.J. May 9, 2022). No factual basis is suggested, however, for any
separate analysis of the discovery rule with respect to Mr. Kerbel’s per quod claim.
issue, as presented, did not require discovery of facts beyond the plaintiff’s
control; it had to do with what she knew or should have known about a
potential cause of action more than two years before this action was filed.
C.R. Bard offers the following pertinent evidence, which the Court
considers in support of summary judgment.
First, C.R. Bard cites a 2008 FDA Public Health Notification alerting
medical professionals and the public of complications resulting from pelvic
mesh products. Ms. Kerbel cannot with good grace dispute the authenticity or
relevance of this Notification, as she cites and describes that very document in
her complaint: “On October 20, 2008, the Food and Drug Administration
(‘FDA’) issued a Public Health Notification that described over 1,000 reports of
complications (otherwise known as ‘adverse events’) that had been reported
over a three-year period relating to pelvic mesh products.”). (Cplt. ¶ 24)
Ms. Kerbel objects that she, as a medical lay person, cannot be held
accountable for the knowledge of this notification, which in any event was
issued before the device was implanted in her body. I agree that such a
notification, standing alone, would not be sufficient. Nevertheless, it
contributes to a body of knowledge that she, her attorneys, and her doctors
could have learned about when her symptoms began to appear and they began
to search for the cause.3
Second, plaintiff herself alleges that she began to experience chronic pain
in 2010. She argues that she did not know to a certainty that the Align device
was to blame at that time. Nevertheless, this fact contributes to the collection
of facts that surely placed the plaintiff on inquiry notice as to the cause.
Third, C.R. Bard cites the 2014 surgical removal of the Align device from
the plaintiff’s body. Commonly, such corrective surgery would place a plaintiff

3 So the claim is not, as plaintiff would have it, that she is being charged with
knowledge of all FDA filings. To see the point of citing this Notification, one need only
imagine how a plaintiff’s argument would look if there had been no such warnings
disseminated to the public. This evidence passes the test of relevance, in that it
contributes to the plausibility of the defendant’s position.
on notice that she may have a claim. See, e.g., Bond v. Johnson & Johnson, No.
CV 21-05327 (FLW), 2021 WL 6050178, at *14 (D.N.J. Dec. 21, 2021), aff'd,
No. 22-1127, 2022 WL 4594185 (3d Cir. Sept. 30, 2022). But not necessarily,
says plaintiff. Plaintiff cites a case interpreting the discovery rules of several
states, stating that “[r]evision surgery, alone, only tells a plaintiff that she is
suffering from complications as a result of her implant procedure, but is silent
as to the cause of that complication,” leaving open the possibilities of, e.g.,
malpractice, a product defect, or an unavoidable side effect. (SJ Opp. at 4,
citing In re: Smith & Nephew Birmingham Hip Resurfacing Hip Implant Products
Liability Litigation, 2018 U.S. Dist. LEXIS 198316, *33-34 (D. Md. Nov. 19,
2018)). Facts are lacking as to what Ms. Kerbel was told about the reasons for
surgical removal, but she was in a position to supply them in opposition of a
motion for summary judgment, if only in abbreviated affidavit form.
Pause the analysis for a moment. Thus far, C.R. Bard has made a fairly
persuasive case that Ms. Kerber’s symptoms and the corrective surgery in 2014
would reasonably have placed her on notice that she had a potential claim
against C.R. Bard. Nevertheless, on a summary judgment standard, this
limited record could also be consistent with the conclusion that the existence of
a cause of action still required some level of medical evidence not yet before the
Court. Cases have delayed accrual, for example, where, based solely on
nonexistent or equivocal medical evidence, the plaintiff did not then know his
injury may have resulted from the fault of a particular party. See, e.g.,
Vispisiano v. Ashland Chem. Co., 107 N.J. 416, 427, 527 A.2d 66, 72 (1987).
What really pushes C.R. Bard’s motion over the line, however, is the
evidence of prior litigations between these parties. We do not have to weigh
contemporaneous medical evidence. We do not have to speculate as to whether
Ms. Kerber was lulled into inaction. We do not have to guess whether she knew
she could sue C.R. Bard for her injuries. She did sue C.R. Bard for those very
injuries in 2016 and 2019, well outside the limitations period. Thus:
Fourth, C.R. Bard cites a 2016 litigation in Missouri state court, Stanton,
Connie, et al. v. C. R. Bard, Inc., et al., Docket No. 1622-CC10871. A copy of the
Petition in that matter (the “Stanton Pet.”), dated Oct. 18, 2016, is in the
summary judgment record. (DE 15-2 at 2). The same law firm that represents
Ms. Kerber in this action brought that prior litigation on behalf of Ms. Kerber
and a number of other named plaintiffs. The subject matter is identical to that
of this action:
5. Plaintiff SOCORRO KERBEL DIAZ is a nature person
residing in the State of Colorado. Plaintiff SOCORRO KERBEL
DIAZ was implanted with a C.R. Bard Align device. The pelvic mesh
device was manufactured, marketed, advertised and promoted by
Defendants C.R. Bard [and others]. After the pelvic mesh device
was implanted Plaintiff SOCORRO KERBEL DIAZ began to
experience severe complications related to the implant, including
but not limited to extreme pain, discomfort, urinary problems,
dyspareunia and upon information and belief underwent multiple
corrective surgeries to remove or revise part of the pelvic mesh
device.
(Stanton Pet. ¶ 5)
The Stanton Petition relates that the materials used in C.R. Bard’s Align
and other devices produce negative immune responses and inflammation,
contributing to adverse effects such as infection and chronic pain. (See Stanton
Pet. ¶¶ 39, 40.) It alleges that the defendants, C.R. Bard and two foreign
manufacturers, had actual or constructive knowledge of these problems but
continued to market the products as safe. It asserts causes of action including
Strict Liability/Failure to Warn, Manufacturing Defect, Design Defect, and
Negligence.
Both the factual allegations and the specific legal claims in that 2016
Stanton action substantially overlap the facts and claims asserted in this 2022
action. Through the same counsel, Ms. Kerbel and her co-plaintiffs asserted in
2016 that their injuries could be traced to the fault of C.R. Bard.4

4 The Stanton litigation was dismissed for lack of prosecution on April 11, 2018.
(DE 15-2 at 48)
Fifth, C.R. Bard cites a second, 2019 litigation in Missouri state court,
Kostedt, Deborah, et al. v. C. R. Bard, Inc., et al., Docket No. 1922-CC00184. A
copy of the Petition in that matter (the “Kostedt Pet.”), dated January 25, 2019,
is in the summary judgment record. (DE 15-2 at 52)) The Kostedt petition was
essentially a revival of the dismissed Stanton litigation. The same law firm that
represents Ms. Kerber in this action brought the Kostedt litigation on behalf of
Ms. Kerber and a number of other named plaintiffs. The subject matter, again,
is identical to that of this case. The Petition alleges, in almost precisely the
same words as before, that Ms. Kerbel was “implanted with an Align device
during surgery performed on or around August 30, 2010” and that she then
“began to experience severe complications related to the implant, including but
not limited to extreme pain, discomfort, urinary problems, dyspareunia and
upon information and believe [sic] may have underwent multiple corrective
surgeries to remove [sic] or part of the pelvic mesh device.” (Kostedt Pet. ¶ 29).
And it asserts causes of action similar to those asserted here, in both instances
against C.R. Bard.5
Particularly against the backdrop of these prior litigations, plaintiff’s
arguments do not suffice to create a triable issue as to the application of the
discovery rule. Consider, for example, her arguments that her symptoms,
beginning in 2010, or her 2014 surgery to remove the device did not put her on
warning of a claim against C.R. Bard. By 2016, she was making just such a
claim. Her complaint alleged that C.R. Bard’s legal liability could be inferred
from her injuries, in the context of other facts, including the corrective surgery.
And again, in 2019, she filed a similar claim, through the same counsel. To put
it another way, if those litigations were filed in 2016 and 2019, there is no
further reason that this litigation could not have been filed in 2016 or 2019.
Plaintiff has very little substantive to say with respect to the 2016 and
2019 litigations. Counsel argues that “there is nothing in the record” and that

5 The Kostedt case was removed to federal court (DE 15-2 at 104, 110), and then
dismissed for lack of personal jurisdiction over C.R. Bard (id. at 135, 140)
the court is merely being “ask[ed] . . . to infer” her knowledge. (SJ Opp. 5) But
no mind-reading is required here. Nor are the facts so far outside of the
plaintiff’s knowledge that she could not have asserted them in an affidavit
without the need for further discovery. At any rate, this would appear to be a
non-issue. Long before the limitations period began to run, plaintiff had the
benefit of medical and legal counsel, and knew she possessed a claim, because
she actually asserted that claim in state court. If Ms. Kerbel and her counsel
were not aware of the pertinent facts and the identity of the potential
defendant, they could not have asserted those very facts against C.R. Bard in
the 2016 and 2019 petitions.6
Finally, Ms. Kerbel cites medical records dating from September 2021
(DE 19-1), which would be within the two-year limitations period. These,
counsel argues, demonstrate that she has bladder issues, allegedly stemming
from the implant that was removed in 2014. As a matter of law, however,
continuing effects of an injury do not restart the limitations period; the
discovery rule very clearly provides that the period starts running not when all
effects of the injury have run their course, but when that injury (and the
potentially responsible party) first is or should have been discovered. And, for
statute of limitations purposes, “continuing injuries” from a past tort must be
distinguished from a “continuing tort,” i.e., one involving fresh breaches of a
tort-law duty within the limitations period. See Haddonbrook Assocs. v. Gen.
Elec. Co., No. CIV 08-0014(JBS), 2010 WL 715388, at *3 (D.N.J. Feb. 25, 2010),
aff'd, 427 F. App'x 99 (3d Cir. 2011); Kichline v. Consol. Rail Corp., 800 F.2d
356, 360 (3d Cir. 1986) (while original injury stemming from employee’s

6 See generally Lapka v. Porter Hayden Co., 162 N.J. 545, 553, 745 A.2d 525, 529
(2000) (affirming where Appellate Division “panel concluded that plaintiff knew his
condition was asbestos-related ‘at least as of the date he signed and filed his workers'
compensation petition in January 1986.’ The court also determined that, because the
workers' compensation petition ‘unquestionably established plaintiff's knowledge of
the essential facts,’ no evidentiary hearing was required” under state procedural
standards.). Pursuant to the Erie doctrine, the Lopez procedure of having the judge
resolve discovery rule issues via an evidentiary hearing does not apply in federal court.
Goodman v. Mead Johnson & Co., 534 F.2d 566, 571–73 (3d Cir. 1976)
exposure to fumes was time-barred, even after application of discovery rule,
employee could still sue for injuries resulting from additional exposure within
limitations period). It is not alleged that C.R. Bard engaged in relevant conduct
of any kind, let alone tortious conduct, within the limitations period.

CONCLUSION
For the foregoing reasons, defendant’s motion to dismiss the complaint,
converted to a motion for summary judgment pursuant to Fed. R. Civ. P. 12(d),
is GRANTED. An appropriate order accompanies this Opinion.
Dated: May 15, 2023
/s/ Kevin McNulty
_____________________________
HON. KEVIN MCNULTY
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10276558. Public record. Not legal advice.