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Collett v. Olympus Optical Co.

United States District Court, M.D. Georgia, Athens Division

December 11, 2018

STEPHEN R. COLLETT and FELICITY COLLETT, Plaintiff,
v.
OLYMPUS OPTICAL CO. and ADVANCED STERILIZATION PRODUCTS, Defendants.

          ORDER

          CLAY D. LAND, CHIEF U.S. DISTRICT COURT JUDGE

         Stephen Collett alleges that he contracted human immunodeficiency virus (HIV) from an improperly disinfected colonoscope that was manufactured by Olympus Optical Co. and disinfected with CIDEX, a disinfectant manufactured by Advanced Sterilization Products (“ASP”). Stephen's wife Felicity later contracted HIV. Plaintiffs brought claims against Defendants for negligence, design defect, manufacturing defect, failure to warn, fraudulent misrepresentation, fraudulent concealment, and negligent misrepresentation. ASP filed a motion to dismiss, arguing that Plaintiffs' claims are barred by the applicable statute of limitations and that Plaintiffs' Amended Complaint does not adequately allege fraudulent misrepresentation or fraudulent concealment. As discussed below, the motion (ECF No. 18) is denied. Also pending before the Court is Olympus's recently filed motion to dismiss for lack of personal jurisdiction. That motion is not yet ripe, and the Court will address it in a separate order.

         MOTION TO DISMISS STANDARD

         “To survive a motion to dismiss” under Federal Rule of Civil Procedure 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The complaint must include sufficient factual allegations “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. In other words, the factual allegations must “raise a reasonable expectation that discovery will reveal evidence of” the plaintiff's claims. Id. at 556. But “Rule 12(b)(6) does not permit dismissal of a well-pleaded complaint simply because ‘it strikes a savvy judge that actual proof of those facts is improbable.'” Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S. at 556).

         ASP asserts that in considering its motion to dismiss, the Court should take judicial notice of and consider several articles and regulatory materials regarding the sterilization of medical devices to prevent HIV, including materials submitted to the U.S. Food and Drug Administration during the 510(k) regulatory process and articles on the potential for infection due to improper sterilization of dental and medical equipment. In most cases, the Court cannot consider matters outside the pleadings in ruling on a Rule 12(b)(6) motion to dismiss unless the court converts the motion to one for summary judgment under Rule 56. Fed.R.Civ.P. 12(d). “[A] document attached to a motion to dismiss may be considered by the court without converting the motion into one for summary judgment only if the attached document is: (1) central to the plaintiff's claim; and (2) undisputed.” Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002). The articles and regulatory materials ASP submitted are not central to Plaintiffs' claims, and the Court declines to consider them.

         ASP argues that the Court “may take judicial notice of certain facts without converting a motion to dismiss into a motion for summary judgment.” Horne v. Potter, 392 Fed.Appx. 800, 802 (11th Cir. 2010) (per curiam). That is true in some cases and for some types of documents. In Horne, for example, the district court properly took judicial notice of court documents from the plaintiff's first employment discrimination action to determine whether her second action was barred by res judicata. Id.; see Billingsea v. Graphic Packaging Int'l, Inc., No. 5:13-CV-16 (CAR), 2013 WL 2156473, at *2 (M.D. Ga. May 17, 2013) (taking judicial notice of documents filed in prior judicial proceedings); see also Canal Indem. Co. v. Richardson, No. 5:14-CV-431 (WLS), 2015 WL 13449666, at *1 (M.D. Ga. Apr. 1, 2015) (taking judicial notice of state court docket). And in Oxford Asset Management, Ltd. v. Jaharis, 297 F.3d 1182 (11th Cir. 2002), the Eleventh Circuit stated that “[i]n a motion to dismiss a securities action, a court may consider the contents of public disclosure documents which are required to be filed with the SEC and are actually so filed.” Id. at 1188; accord Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1279 (11th Cir. 1999); see also U.S. ex rel. Osheroff v. Humana Inc., 776 F.3d 805, 811 (11th Cir. 2015) (finding that the district court did not err in considering judicially noticed newspaper articles in determining whether the plaintiff's complaint failed to state a claim based on the False Claims Act's public-disclosure bar). This case is not remotely factually similar to any of the cases ASP cited in support of its motion for judicial notice. Here, ASP is asking the Court to consider articles and regulatory materials and conclude as a matter of law, based on the existence of those materials, that Plaintiffs did not exercise reasonable diligence in investigating their claims. The Court finds that it would be inappropriate to depart from Rule 12(d)'s conversion rule in this case and therefore denies ASP's motion for judicial notice (ECF No. 19).

         FACTUAL ALLEGATIONS

         Plaintiffs allege the following facts in support of their claims. The Court must accept these allegations as true for purposes of the pending motion.

         Stephen Collett underwent a routine colonoscopy with Dr. Jeffery Williams in October 2011. The patient who had a colonoscopy before Stephen had a polyp removed; after that procedure, the colonoscope was disinfected with CIDEX. Then, the colonoscope was used for Stephen's procedure, and Stephen had a polyp removed.

         Several weeks after the colonoscopy, Stephen sought medical treatment for fever, night sweats, muscle pain, sore joints, and a skin rash. There is no allegation that Stephen tested positive for HIV at that time, and there is no allegation that Stephen connected (or had reason to connect) his symptoms to the routine colonoscopy. In 2013, Stephen sought medical treatment for breathing issues. On July 22, 2013, Stephen tested positive for HIV. Felicity was then tested for HIV, and she also tested positive. “Plaintiffs were completely shocked by the HIV diagnosis and were unable to determine any possible source of the infection.” Am. Compl. ¶ 30, ECF No. 11. Both Plaintiffs “extensively reviewed [their] medical history and the information available to [them] in order to determine a source of the infection, ” but they “were unable to determine the source of their infection.” Id. ¶¶ 31-33. Stephen continued to receive medical treatment from Dr. Williams, and Dr. Williams never told him that the colonoscope could have been the source of the infection.

         In 2017, Stephen's dentist told him about the research of Dr. David Lewis, who had investigated the transmission of pathogens via flexible colonoscopes. Stephen met with Dr. Lewis on March 21, 2017. Based on the information Dr. Lewis provided to Stephen, Plaintiffs determined that the cause of the HIV infection was the transmission of HIV from a prior patient via the unclean Olympus colonoscope that had been disinfected with ASP's CIDEX product. This was “the first time that Plaintiffs had any indication of the source of their infection.” Id. ¶ 38.

         Plaintiffs assert that Olympus's colonoscope was defectively designed and manufactured and that Olympus knew that its colonoscope could cause cross-contamination and the spread of infectious disease. Plaintiffs further claim that Olympus failed to instruct colonoscope users of proper sterilization methods. Plaintiffs also allege that CIDEX was defectively designed and manufactured and that it increased the risk of spreading infectious diseases. Plaintiffs contend that although ASP knew that CIDEX did not effectively disinfect colonoscopes when used in accordance with ASP's instructions, ASP misrepresented the efficacy of CIDEX, repeatedly telling healthcare professionals, including Stephen's doctors, that CIDEX was safe and effective as a disinfectant for colonoscopes even though it was not. Those healthcare professionals, including Stephen's doctors, relied on ASP's misrepresentations in deciding to purchase and use CIDEX as a disinfectant.

         DISCUSSION

         I. Statute ...


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