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Robert Buckley and Nancy Buckley

October 3, 2012

ROBERT BUCKLEY AND NANCY BUCKLEY,
PLAINTIFFS,
V., DJO SURGICAL (F/K/A ENCORE ) MEDICAL L.P., AND DOES 1 THROUGH 20, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER GRANTING WITHOUT PREJUDICE DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS [doc. #24] )

This action arises out of Plaintiff Robert Buckley's total knee replacement surgery (arthroplasty procedure) performed in 2000. Plaintiffs allege that the Encore mechanism that was implanted into his leg during that procedure was defective and resulted in pain and eventual disability.

On July 2, 2012, Defendant Encore Medical GP, LLP ("Encore") moved for judgment on the pleadings stating that the Plaintiffs Robert Buckley and Nancy Buckley's claims were barred the statute of limitations, insufficiently pleaded, and not valid as a matter of law. The motion has been fully briefed.

For the following reasons, the Court will grant Defendants' motion for judgment on the pleadings. (Doc. #24.)

BACKGROUND

On December 15, 2000, Plaintiff Robert Buckley underwent a total knee replacement arthroplasty on his left knee. (Compl. ¶ 6.) The prosthetic knee was manufactured by Defendant Encore. (Id.) Beginning in June of 2001, Mr. Buckley began to complain of a problem with his knee and had an x-ray and examination to discover the cause. (Compl. ¶ 7.) At that time, the treating physician did not indicate any suspicion that the replacement part was the cause of Mr. Buckley's discomfort. (Id.) Mr. Buckley continued to pursue treatment when the pain failed to dissipate. (Compl. ¶ 7-15.)

On April 15, 2002, Plaintiff went in for repeat x-rays and this time his physician thought the cause was a lack of healing from the original arthroplasty procedure. (Compl. ¶ 9.) Once again, there was no indication that the Encore knee part was defective. In fact, this was not suspected in any of Mr. Buckley's following visits, though he was diligent about seeking medical help over the years. (Compl. ¶ 7-15.) The medical records indicate a variety of theories about his condition, but most are related to arthritis and general degeneration. (Id.)

On January 26, 2006, Mr. Buckley returned to the doctor for examination of the knee. (Compl. ¶ 14.) His doctor declared him disabled and unable to continue in his line of work. (Id.) At this time, however, his doctor indicated in his notes that Mr. Buckley's condition had not been "cured by the surgical intervention." (Id.) Even at that point, the Encore knee part was not suspected as having caused Mr. Buckley's condition. Rather, the diagnosis indicated that the knee condition the arthroplasty procedure was supposed to have cured was still persisting.

On February 5, 2007, the Plaintiff returned to his orthopedist where it was determined that he would probably require further surgery at some point in the future. (Compl. ¶ 15.) There was no discussion of the Encore knee at this time. April 5, 2010 was the first time the Encore part was suspected as the cause of Plaintiff's pain. (Compl. ¶ 16.) During x-rays taken at that visit, the treating physician, Dr. Tsourmas, noticed that the knee replacement part was showing irregular wear. (Id.)

On October 28, 2010, Mr. Buckley met with Dr. David Dodgin. (Compl. ¶ 17.) It was not until this date that he was diagnosed with a "mechanical complication of internal orthopedic device." (Id.) The doctor recommended a revision surgery. (Id.) On November 30, 2010, the Plaintiff underwent revision surgery and it was discovered that the Encore knee part had broken down. (Compl. ¶ 18.) On December 10, 2010, due to the condition of the knee, he underwent a second knee replacement surgery. (Id.)

LEGAL STANDARD

"After the pleadings are closed -- but early enough not to delay trial -- a party may move for judgment on the pleadings." FED. R. CIV. P. 12(c). A motion for judgment on the pleadings is evaluated under the same standard applicable to motions to dismiss brought pursuant to Rule 12(b)(6). See Enron Oil Trading & Trans. Co. v. Walbrook Ins. Co., 132 F.3d 526, 529 (9th Cir. 1997). Accordingly, the standard articulated in Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)applies to a motion for judgment on the pleadings. Lowden v. T-Mobile USA Inc., 378 Fed. App'x. 693, 694 (9th Cir. 2010) ("To survive a Federal Rule of Civil Procedure 12(c) motion, a plaintiff must allege 'enough facts to state a claim to relief that is plausible on its face'" (quoting Twombly, 550 U.S. at 570)).

When deciding a motion for judgment on the pleadings, the Court should assume the allegations in the complaint are true and construe them in the light most favorable to the plaintiff. Pillsbury, Madison & Sutro v. Lerner, 31 F.3d 924, 928 (9th Cir. 1994). A judgment on the pleadings is appropriate when, accepting the allegations made in the complaint as true, the moving party is entitled to ...


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