BRITNEY G. AUSTIN, Plaintiff,
BAYER PHARMACEUTICALS CORPORATION, et al., Defendants.
MEMORANDUM OPINION AND ORDER
KEITH STARRETT, District Judge.
For the reasons stated below, the Court grants in part and denies in part Defendant's Motion to Dismiss .
This is a product liability case concerning Mirena, an intrauterine contraceptive device. Plaintiff started using Mirena on October 22, 2009. Several months later - on Sunday, March 7, 2010 - she sought medical treatment for abdominal pain. Plaintiff told the physician that she had experienced abdominal pain since Thursday, March 4, 2010. She became concerned about it after seeing a television commercial about Mirena and abdominal pain.
Plaintiff sought additional medical treatment in April 2010, November 2010, April 2011, October 2011, and October 2012. Over this period of time she experienced severe abdominal pain, irregular cycles, abnormal bleeding, urinary tract infection, nausea, constipation, and ovarian cysts. In December 2012, she had the Mirena device removed, upon the advice of her physician. In at least one subsequent appointment - in February 2013 - Plaintiff reported some of the same symptoms listed above, and she alleges that she continues to suffer from medical problems caused by Mirena.
On March 5, 2012, Plaintiff initiated the present litigation against Defendant, the company that designed, manufactured, and marketed Mirena. Defendant filed a Motion to Dismiss , which is ripe for review.
Plaintiff argues that Defendant's current Motion to Dismiss  is moot. The Court denied Defendant's first Motion to Dismiss  as moot. That motion concerned Plaintiff's Second Amended Complaint , but the Court allowed Plaintiff to file a Third Amended Complaint , which Defendant's second Motion to Dismiss  concerns. The motion, therefore, is not moot.
B. Statute of Limitation
Defendant relied upon certain medical records  which Plaintiff presented earlier. The records were not referenced in the pleadings. Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004) (documents are part of pleadings only if referred to in the complaint and central to plaintiff's claims). "If, on a motion under Rule 12(b)(6)..., 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). The Court notified the parties  that it intended to construe Defendant's Rule 12(b)(6) motion as a Rule 56 motion and consider the medical records, and it also gave Plaintiff a chance to supplement the record. Plaintiff supplemented the record with medical records that appear to be identical to the ones previously submitted. The record is complete, and the Court may now consider Defendant's motion.
Rule 56 provides that "[t]he court shall grant summary judgment 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 Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010). "Where the burden of production at trial ultimately rests on the nonmovant, the movant must merely demonstrate an absence of evidentiary support in the record for the nonmovant's case." Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010) (punctuation omitted). The nonmovant "must come forward with specific facts showing that there is a genuine issue for trial." Id. (punctuation omitted). "An issue is material if its resolution could affect the outcome of the action." Sierra Club, Inc., 627 F.3d at 138. "An issue is genuine' if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party." Cuadra, 626 F.3d at 812.
The Court is not permitted to make credibility determinations or weigh the evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009). When deciding whether a genuine fact issue exists, "the court must view the facts and the inference to be drawn therefrom in the light most favorable to the nonmoving party." Sierra Club, Inc., 627 F.3d at 138. However, "[c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial." Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).
Defendant argues that all of Plaintiff's causes of action are barred by the applicable statutes of limitation. Plaintiff's counsel chose a "shotgun" approach to pleading, asserting a wide variety of claims. The Court will examine each cause of action.
1. Negligence/Gross Negligence
The statute of limitation for negligence actions is three years. MISS CODE ANN. § 15-1-49(1); Alston v. Pope, 112 So.3d 422, 424 n. 3 (Miss. 2013). A negligence action accrues when the plaintiff discovers, or by reasonable diligence should have discovered, the injury. MISS. CODE ANN. § 15-1-49(2); Angle v. Koppers, Inc., 42 So.3d 1, 7 (Miss. 2010); Garlock Sealing Techs., LLC v. Pittman, ___ So.3d ___, 2010 Miss. LEXIS 539, at *18-*19 (Miss. Oct. 14, 2010).
Defendant argues that Plaintiff knew of her injury on March 4, 2010 - the date on which she first experienced abdominal pain. Plaintiff argues that she did not know of her injury until March 7, 2010 - the date on which a doctor provided a diagnosis. The question for the Court, therefore, is whether the term "injury, " as used in § 15-1-49(2), refers to the symptoms of an underlying medical condition or the medical condition itself. In other words, does a plaintiff's claim accrue when they first experience symptoms, or when they receive a diagnosis of the medical condition underlying the symptoms?
The Mississippi Supreme Court addressed this issue in Phillips 66 Co. v. Lofton, 94 So.3d 1051 (Miss. 2012), an asbestosis case. The plaintiff filed suit on May 19, 2004. Id. at 1059. He began exhibiting symptoms of pulmonary fibrosis - which is associated with asbestosis - as early as 1995, when he sought medical treatment for unrelated matters. Id. He did not seek medical treatment for pulmonary issues until 2003. Id. At that time, a doctor diagnosed him with fibrosis. The Court held that he "could not reasonably have known about his injury until he sought treatment in September 2003 for symptoms associated with his asbestosis and was diagnosed with pulmonary fibrosis." Id. 
Here, it is undisputed that Plaintiff experienced symptoms of her injury as early as March 4, 2010. But she did not seek treatment and receive a diagnosis of the injury until March 7, 2010. A cause of action accrues "when the plaintiff can reasonably be held to have knowledge of the injury or disease." Owens-Illinois, Inc. v. Edwards, 573 So.2d 704, 709 (Miss. 1990); see also Angle, 42 So.3d at 6. According to the evidence in the record, all Plaintiff knew on March 4, 2010, was that she had abdominal pain. As Lofton demonstrates, she can not reasonably be held to have had knowledge of her injuries at that time.
Defendant also argues that Plaintiff knew the cause of her injury/symptoms. That is, Defendant contends that Plaintiff attributed the abdominal pain to Mirena on March 4, 2010, prompting her to seek treatment. Plaintiff's medical records [26-1] from March 7, 2010, contains the following note: "AFTER SEENING [sic] AD ON TV ABT MIRENA AND ABD PAIN, C/O ABD PAIN SINCE THURSDAY. CALLED DR CONNELL'S OFFICE HAS APPT THIS THURSDAY FOR SAME. HAS NOT TRIED ANY OTC PAIN MEDS."
Construing this document in the light most favorable to Plaintiff, all it establishes is that she saw a television commercial about Mirena at some point between March 4, 2010, and March 7, 2010, and that it caused her to be concerned about abdominal pain she had been experiencing since March 4, 2010. If, for example, she did not actually attribute the symptom to Mirena until March 6, 2010, her complaint was timely filed. The Court concludes, therefore, that a genuine issue of material fact exists as to when Plaintiff attributed her injury/symptoms to Mirena.
2. MPLA Design, Manufacturing, and Warning Defect
Product liability actions are subject to a three-year statute of limitation. MISS. CODE ANN. § 15-1-49(1); Lincoln Elec. Co. v. McLemore, 54 So.3d 833, 836 (Miss. 2010); Alexander v. Wyeth, 897 F.Supp.2d 489, 490 (S.D.Miss. 2012). A product liability action accrues when the plaintiff discovers, or by reasonable diligence should have discovered, the injury. MISS. CODE ANN. § 15-1-49(2); McLemore, 54 So.3d at 836; Caves v. Yarbrough, 991 So.2d 142, 155 (Miss. 2008). For the same reasons stated above, the Court denies Defendant's motion as to this issue.
3. Negligent Misrepresentation
Negligent misrepresentation claims are subject to a three-year statute of limitation. MISS. CODE ANN. § 15-1-49(1); Rankin v. Am. Gen. Fin., Inc., 912 So.2d 725, 726 (Miss. 2005); Brumfield v. Pioneer Credit Co., 291 F.Supp.2d 462, 468 (S.D.Miss. 2003). A negligent misrepresentation claim accrues when the plaintiff discovers, or by reasonable diligence should have discovered, the injury. CitiFinancial Mortg. Co. v. Washington, 967 So.2d 16, 19 (Miss. 2007); Oaks v. Sellers, 953 So.2d 1077, 1081-83 (Miss. 2007). For the same reasons stated above, the Court denies Defendant's motion as to this issue.
4. Fraud/Fraudulent Misrepresentation
Fraud claims are subject to a three-year statute of limitation. MISS. CODE ANN. § 15-1-49(1); Sanderson Farms, Inc. v. Ballard, 917 So.2d 783, 789 (Miss. 2005). "A fraud claim accrues upon the completion of the sale induced by such false representation, or upon the consummation of the fraud...." Ballard, 917 So.2d at 789. It is undisputed that Plaintiff received the Mirena device on October 22, 2009. She filed her complaint on March 5, 2013 - over three years after ...