Anticipating Settlement, Plaintiff Who Waited to Serve Complaint Loses Claim Against DePuy

depuy-asr-hip-replacementA woman who waited to serve a complaint in hopes of a settlement lost her claim against DePuy Orthopaedics alleging a defective hip implant because she let the two-year statute of limitations pass. The 11th US Court of Appeals upheld the trial court’s award of summary judgment.

In 2000, plaintiff Maeola Goldthrip was implanted with a Prodigy hip system made by the DePuy Orthopaedics Inc. subsidiary of Johnson & Johnson.  In 2013, the femoral component of the hip failed, requiring revision surgery.

DePuy is facing 8,661 product liability actions before US District Judge James Edgar Kinkeade in MDL 2244IN RE: De Puy Orthopaedics, Inc., Pinnacle Hip Implant Products Liability Litigation. It is facing an additional 1,458 actions before US District Judge Jeffrey J. Helmick in MDL 2197, IN RE: DePuy Orthopaedics, Inc., ASR Hip Implant Products Liability Litigation.

Two days before deadline

On December 23, 2015, two days before the Alabama two-year statute of limitations expired, Maeola Goldthirp and Vickie Goldthrip filed a complaint against DePuy, D.C. Docket No. 2:15-cv-00651-KD-B in the Southern District of Alabama. The last page of the complaint indicated the plaintiffs were “withholding service of process” in an effort to avoid expenses and facilitate settlement discussions.

On December 28, 2015, the plaintiffs sent letters with copies of the complaint and a proposed tolling agreement to DePuy’s registered agent and a DePuy litigation paralegal. A summons was not issued until February 17, 2016, after the district court judge instructed Plaintiffs’ counsel that there is “no legal authority that permits them to file a complaint in federal court and then essentially sit on it until they decide that they are ready to move forth with the prosecution.”

After being served with the summons, DePuy answered and immediately moved for summary judgment. The district court found plaintiffs did not commence the action prior to Alabama’s two-year statute of limitations deadline and granted summary judgment in favor of DePuy. The district court held that “Plaintiffs failed to commence their action when they filed the Complaint on December 23, 2015, because they did not immediately serve or have the intent to immediately serve the Defendant.”

In a case directly on point, the Alabama Supreme Court stated that, when “the plaintiff intentionally interferes with this service by ordering that service be withheld, then the filing will not constitute the commencement of the action, since there is no intent to prosecute the claim at that time.” Freer v. Potter, 413 So. 2d 1079, 1081 (Ala. 1982).


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