Dolores C. Jones v. Smith & Nephew INC.

03/14/2022

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

November 9, 2021 Session

DOLORES C. JONES v. SMITH & NEPHEW INC.

Appeal from the Circuit Court for Shelby County

No. CT-4773-20 Valerie L Smith, Judge

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No. W2021-00426-COA-R3-CV

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Appellant filed this products liability action more than 10 years after undergoing a total hip

replacement using Appellee’s hip implant system. The trial court granted Appellee’s

motion to dismiss on the ground that Appellant’s lawsuit fell outside the 10-year statute of

repose and any exceptions thereto. Discerning no error, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN STAFFORD,

P.J., W.S., and CARMA DENNIS MCGEE, J., joined.

Alex C. Davis, Louisville, Kentucky, Natalie R. Sharp, and Eric W. Hayes, Nashville,

Tennessee, for the appellant, Dolores C. Jones.

Glen G. Reid, Jr., Mark Vorder-Bruegge, Jr., Matthew M. Lubozynski, and Meghan M.

Cox, Memphis, Tennessee, for the appellee, Smith & Nephew, Inc.

OPINION

I. Background

On January 12, 2009, Appellant Dolores Jones underwent a total hip replacement

surgery on her left side. The “Hip System” used in Appellant’s surgery was a “metal-on-

metal” hip replacement where one metal device articulated directly against another metal

device. Appellee Smith & Nephew, Inc. manufactured, marketed, and sold both of these

metal parts. The Food and Drug Administration (“FDA”) never approved the use of these

component parts together. The metal-on-metal bearing surface created by the Hip System

allegedly caused a gradual release of toxic cobalt and chromium ions into Appellant’s hip

joint. Over many years, this toxic metal release allegedly caused Appellant to develop

metal ion disease. Appellant also experienced damage to the soft tissue in her hip joint.

As a result of this damage, on November 11, 2019, Appellant underwent surgery to replace

the original Hip System implant. During this surgery, it was discovered that Appellant had

a fluid collection in her hip joint that was consistent with metal ion disease.

On November 10, 2020, Appellant filed a complaint for damages in the Shelby

County Circuit Court (“trial court”), wherein she alleged that Appellee’s hip replacement

products caused metal ions to enter her bloodstream, destroying the tissue in her hip,

creating an adverse reaction, and requiring a new hip replacement surgery. Appellant also

alleged that the devices used in her original hip replacement surgery have high failure,

injury, and complication rates, and that Appellee actively and intentionally misled the

public, medical community, health care providers, and patients into believing that these

products were safe and effective. In the complaint, Appellant alleged negligence, strict

products liability, breach of warranties, negligent misrepresentation, unfair and deceptive

trade practices, misrepresentation by omission, constructive fraud, and negligent infliction

of emotional distress. On November 30, 2020, Appellant filed an amended complaint,

containing the same allegations but also including the following language:

This case is filed within the applicable statute of limitations, and [Appellant]

has a good faith cause to believe it fits within the meaning of an exception to

Tennessee’s applicable statute of repose, because the injuries suffered by

[Appellant] often take considerably longer than ten years to manifest

themselves, in a fashion similar to injuries from exposure to asbestos.

On December 9, 2020, Appellee filed a motion to dismiss, arguing that all of

Appellant’s claims were based on allegations that the implant she received more than 10

years prior to filing her complaint was defective. Thus, Appellee argued that the lawsuit

was governed by the Tennessee Products Liability Act (“TPLA”), which provided a 10-

year statute of repose, discussed infra, which barred Appellant’s claims. On January 11,

2021, Appellant filed her response in opposition to the motion to dismiss, and Appellee

filed a reply brief on January 15, 2021.

On February 8, 2021, the trial court heard Appellee’s motion to dismiss. By order

of March 26, 2021, the trial court granted the motion with prejudice. Specifically, the trial

court found that: (1) this was a products liability action governed by the TPLA; (2) the

action commenced when Appellant filed her complaint on November 10, 2020; (3) the

TPLA provides a conventional statute of limitations and a statute of repose; (4) the statute

of repose extinguishes a products liability claim that is not filed within 10 years “from the

date on which the product was first purchased for use or consumption;” (5) the exceptions

to the statute of repose are not applicable in this case; (6) the medical device products in

question were implanted into Appellant on or about January 12, 2009; (7) because

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Appellant’s original complaint was not filed until November 10, 2020, it was filed more

than 10 years after the devices were implanted; and (8) the action was commenced after

the expiration of the repose period provided in the TPLA. Appellant appeals.

II. Issues

As stated in her brief, Appellant raises two issues for review:

1. Whether the Circuit Court erred in failing to determine that the latent nature of metal

ion disease brings Appellant’s claims outside [] Tennessee’s Statute of Repose.

2. Whether the Circuit Court erred by not exempting Appellant’s claims from

Tennessee’s State of Repose based on Smith & Nephew’s fraudulent concealment

of the Hip System’s defective nature.

III. Standard of Review

This case was decided on the grant of Appellee’s motion to dismiss. The resolution

of a Tennessee Rule of Civil Procedure 12.02 motion to dismiss is determined by an

examination of the pleadings alone. Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d

691, 696 (Tenn. 2002). A defendant who files a motion to dismiss “‘admits the truth of all

of the relevant and material allegations contained in the complaint, but . . . asserts that the

allegations fail to establish a cause of action.’” Brown v. Tenn. Title Loans, Inc., 328

S.W.3d 850, 854 (Tenn. 2010) (quoting Freeman Indus., LLC v. Eastman Chem. Co.,

172 S.W.3d 512, 516 (Tenn. 2005)). In considering a motion to dismiss, courts “must

construe the complaint liberally, presuming all factual allegations to be true and giving the

plaintiff the benefit of all reasonable inferences.” Tigg v. Pirelli Tire Corp., 232 S.W.3d

28, 31-32 (Tenn. 2007) (citing Trau-Med of Am., Inc., 71 S.W.3d at 696). A trial court

should grant a motion to dismiss “only when it appears that the plaintiff can prove no set

of facts in support of the claim that would entitle the plaintiff to relief.” Crews v. Buckman

Labs Int’l, Inc., 78 S.W.3d 852, 857 (Tenn. 2002); see also Lanier v. Rains, 229 S.W.3d

656, 660 (Tenn. 2007). We review the trial court’s legal conclusions regarding the

adequacy of the complaint de novo with no presumption that the trial court’s decision was

correct. Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn.

2011).

IV. Analysis

Appellant does not dispute that this is a products liability action or that her claims

are subject to the TPLA. See generally Tenn. Code Ann. § 29-28-101, et seq. Although

Appellant does not appear to dispute the fact that she filed her initial complaint outside the

TPLA’s statute of repose, for completeness we briefly review the applicable law. Statutes

of repose “‘typically begin to run with the happening of some event unrelated to the

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traditional accrual of the plaintiff’s cause of action.’” Etheridge ex rel. Etheridge v.

YMCA of Jackson, 391 S.W.3d 541, 546 (Tenn. Ct. App. 2012) (quoting Penley v. Honda

Motor Co., Ltd., 31 S.W.3d 181, 184 (Tenn. 2000)). “[C]ourts of this state have construed

statutes of repose as an absolute time limit within which actions must be brought,”

regardless of whether a plaintiff’s cause of action has accrued. Penley, 31 S.W.3d at 184.

Indeed, the Tennessee Supreme Court has explained that, “‘[w]here [a plaintiff’s] injury

occurs outside the [repose] period, no substantive cause of action ever accrues, and a

claimant’s actions are likewise barred.’” Penley, 31 S.W.3d at 184 (quoting Gillam v.

Firestone Tire & Rubber Co., 489 N.W.2d 289, 291 (Neb. 1992)). Relevant here, the

TPLA’s statute of repose requires an action “be brought within ten (10) years from the date

on which the product was first purchased for use or consumption . . . .” Tenn. Code Ann.

§ 29-28-103(a). Taking the facts in Appellant’s complaint as true, see Tigg, 232 S.W.3d

at 31-32, Appellant underwent total hip replacement surgery on January 12, 2009.

Accordingly, it was on this date that Appellee’s “product was first purchased for use or

consumption” by Appellant. Thus, Appellant was required to bring her products liability

action against Appellee no later than January 12, 2019. As discussed supra, Appellant

filed her complaint on November 10, 2020, which was well outside the time limit imposed

by the statute of repose.

“‘Despite the absolute and unyielding nature of statutes of repose,’ our General

Assembly has provided certain exceptions to allow the commencement of a lawsuit beyond

the repose period.” Etheridge ex rel. Etheridge, 391 S.W.3d at 546 (quoting Penley, 31

S.W.3d at 184). “‘[W]hen the General Assembly has desired that exceptions apply to a

statute of repose . . . the exception is either found with the language of the statute itself, or

in another part of the code specifically referencing the particular statute of repose.’” Id.

(quoting Penley, 31 S.W.3d at 184-85). The exceptions to the TPLA’s ten-year statute of

repose are found in the language of the statute itself. Tennessee Code Annotated section

29-28-103(a) provides that minors who are injured must bring the action “within a period

of one (1) year after attaining the age of majority.” Tenn. Code Ann. § 29-28-103(a).

Further, Tennessee Code Annotated section 29-28-103(b) provides that such “limitation of

actions shall not apply to any action resulting from exposure to asbestos or to the human

implantation of silicone gel breast implants.” Tenn. Code Ann. § 29-28-103(b).

Appellant does not argue that the current exceptions to the TPLA’s statute of repose

apply here, and, indeed, they do not. Rather, she asks this Court to create two new

exceptions. Specifically, Appellant argues that “exceptions to the deadlines imposed by

statutes of repose are routinely made [in other states] in cases such as this one involving

latent diseases and cases where defendants fraudulently conceal the defective nature of

their products.” (Emphasis added). Although Appellant provides case law from North

Carolina, Florida, and Georgia in support of her argument, she provides no Tennessee

authority that would allow this Court to take the action she requests. We are not a

legislative body, and Appellant’s request is not within our purview. Our role is to apply

the law as the legislature has written it.

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To this end, Tennessee court’s must ascertain and fully effectuate the “legislative

intent [of the statute], taking care not to broaden [it] beyond its intended scope . . . .”

Womack v. Corr. Corp. of Am., 448 S.W.3d 362, 366 (Tenn. 2014) (citing Shore v. Maple

Lane Farms, LLC, 411 S.W.3d 405, 420 (Tenn. 2013) (emphasis added); Carter v.

Bell, 279 S.W.3d 560, 564 (Tenn. 2009)). As the Tennessee Supreme Court has explained,

“[o]ur analysis naturally begins with the words used in the statute,” Womack, 448 S.W.3d

at 366 (citing Shore, 411 S.W.3d at 420), and we must interpret those words under their

“natural and ordinary meaning in the context in which they appear and in light of the

statute’s general purpose.” Id. (quoting Mills v. Fulmarque, Inc., 360 S.W.3d 362, 368

(Tenn. 2012)). “[I]f the language of a statute is clear, we must apply its plain meaning

without a forced interpretation.” Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509,

514 (Tenn. 2005), as amended on reh’g in part (Feb. 21, 2006) (citing Mooney v. Sneed, 30

S.W.3d 304, 306 (Tenn. 2000)). The language in the TPLA’s statute of repose is clear:

“Any action against a manufacturer or seller of a product for injury to person . . . caused by

its defective or unreasonably dangerous condition must be brought . . . within ten (10) years

from the date on which the product was first purchased for use or consumption.” Tenn.

Code Ann. § 29-28-103(a) (emphasis added). Likewise, the statutory language regarding

exceptions to the statute of repose is equally clear: minors must bring the action within one

year after reaching majority; and the ten-year limitation shall not apply to any action

resulting from exposure to asbestos or to the human implantation of silicone gel breast

implants. Tenn. Code Ann. § 29-28-103(a), (b). These are the sole exceptions to the

TPLA’s statute of repose.

The issue here is not one of statutory interpretation.1 The statute is clear and

requires no forced interpretation. As such, Appellant’s argument asks us to do what we

cannot—expand Tennessee Code Annotated section 29-28-103(b) to include new

exceptions for “latent” or “creeping” diseases and/or a defendant’s fraudulent concealment.

The Tennessee Supreme Court addressed a similar argument several years ago in Penley

v. Honda Motor Company. In Penley, the plaintiff argued that the TPLA’s ten-year statute

of repose should have been tolled during her temporary mental incompetency. Penley, 31

S.W.3d at 183. Similar to the case at bar, in Penley, it was undisputed that the TPLA

1

In her appellate brief, Appellant cites a series of cases where Tennessee courts declined to apply

a “particular reading of a statute [that] would lead to unintended and unfortunate results.” (Emphasis

added). As discussed, infra, this is not an issue of statutory interpretation as the language concerning the

statute of repose and its exceptions is clear. Furthermore, it does not appear that the statute of repose has

yielded “unintended” results. To the contrary, when the General Assembly enacted the TPLA in 1978, it

recognized “that uncertainty as to future liability increased the premiums for product liability insurance,

which in turn increased the costs of production and ultimately consumer prices.” Penley, 31 S.W.3d at 187.

Indeed, the General Assembly “considered the limitation of future liability to a reasonable and specific

period to be one of the most important keys in solving the perceived products liability crisis.” Id. Thus, it

appears that the General Assembly intended for the TPLA’s statute of repose to bar most products liability

actions “within ten (10) years from the date on which the product was first purchased for use or consumption

. . . .” Tenn. Code Ann. § 29-28-103(a).

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governed the plaintiff’s claims and that she brought suit more than ten years after the

subject product was “purchased for use or consumption.” Id. The plaintiff’s only argument

was that the statute of repose was tolled “during any period in which the plaintiff [was]

mentally incapacitated.” Id. In its opinion, the Tennessee Supreme Court analyzed the

TPLA’s statute of repose, its two exceptions, and case law concerning statutory

interpretation, much as we have done above. Ultimately, the Tennessee Supreme Court

concluded that the TPLA

expressly exempts certain causes of action from application of the ten-year

statute of repose. For example, the ten-year statute of repose does not strictly

apply in the case of minors, who may still bring an action within one year of

attaining majority even if the initial ten-year period has long since expired.

Tenn. Code Ann. § 29-28-103(a). Moreover, since the original enactment of

the TPLA in 1978, the General Assembly has carefully carved out two other

exceptions to the statute of repose. In 1979, the legislature exempted

asbestos claims from the operation of the statute of repose, 1979 Tenn. Pub.

Acts ch. 162, § 1, and in 1993, the General Assembly extended the ten-year

period to twenty-five years for claims arising from injury caused by silicone

gel breast implants, 1993 Tenn. Pub. Acts ch. 457. Any reference to persons

of unsound mind, however, is conspicuously absent.

It is a well-established canon of statutory construction that “the

mention of one subject in a statute means the exclusion of other subjects that

are not mentioned.” See, e.g., Carver v. Citizen Util. Co., 954 S.W.2d 34, 35

(Tenn. 1997) (citations omitted). Section 29-28-103 originally contained one

express exception to the general ten-year limitations period, and the General

Assembly has twice amended the statute since 1978 to include other express

exceptions. The failure of the General Assembly to expressly include any

provision exempting persons of unsound mind from the statute of repose

strongly indicates its desire not to have such an exemption. Accordingly, we

will not rewrite this statute to insert other categories not intended by the

General Assembly. If the General Assembly intended for mental incapacity

to toll the ten-year statute of repose, it could easily have done so while

amending the statute to provide for other exceptions.

Penley, 31 S.W.3d at 185-86 (emphasis added). The same is true here. This Court cannot

expand/rewrite the statute to create a general latent disease exception or a fraudulent

concealment exception to the TPLA’s statute of repose.2 Under the current version of the

2

We note that the General Assembly previously considered whether a defendant’s fraudulent

concealment should toll the statute of repose. As we explained in Damron v. Media General, Incorporated,

when the House of Representatives debated the TPLA’s statute of repose in 1978, a member proposed an

amendment that would accomplish such tolling. Damron v. Media Gen., Inc., 3 S.W.3d 510, 513 (Tenn.

Ct. App. 1999). However, the amendment was tabled, and its defeat was “a powerful indication that the

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TPLA, and for the reasons discussed above, Appellant’s lawsuit falls outside the statute of

repose and any statutory exceptions thereto. As such, the trial court did not err in

dismissing the case on grant of Appellee’s motion to dismiss.

V. Conclusion

For the foregoing reasons, we affirm the trial court’s order. The case is remanded

for such further proceedings as are necessary and consistent with this opinion. Costs of the

appeal are assessed to the Appellant, Dolores C. Jones, for all of which execution may issue

if necessary.

s/ Kenny Armstrong

KENNY ARMSTRONG, JUDGE

House of Representatives intended that a ten[-]year period would be the outside limit and would not be

affected by concealment of a defect by the manufacturer or seller.” Id. Notably, Appellant fails to address

Damron or the General Assembly’s previous consideration in her brief.

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