In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1493
THOMAS M. KLEIN and ANNIE J. RICE,
Plaintiffs-Appellants,
v.
DEPUY, INCORPORATED, DEPUY ORTHOPAEDICS,
INCORPORATED, and JOHNSON & JOHNSON,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 05 C 283—Theresa L. Springmann, Judge.
____________
ARGUED SEPTEMBER 18, 2007—DECIDED OCTOBER 25, 2007
____________
Before EVANS, WILLIAMS, and SYKES, Circuit Judges.
EVANS, Circuit Judge. In this products liability/personal
injury suit, the defendants, DePuy Orthopaedics, Inc.,
DePuy, Inc., and Johnson & Johnson,1 contend that North
Carolina law applies and that the case must be dismissed
1
DePuy Orthopaedics, Inc. is a wholly owned subsidiary of
DePuy, Inc. DePuy, Inc. is a wholly owned subsidiary of Johnson
& Johnson International. Johnson & Johnson International is
a wholly owned subsidiary of Johnson & Johnson. For conve-
nience, we will refer to the defendants collectively as “DePuy.”
2 No. 07-1493
under its six-year statute of repose. The plaintiffs, Mitch
Klein and Annie Rice (her derivative claim is only for
loss of consortium so we’ll refer only to “Klein” as we
move through our opinion), maintain that Indiana law
applies and that the suit is timely under its more gen-
erous ten-year statute of repose. Alternatively, Klein
contends that, if he is stuck with North Carolina law, an
exception should be applied to permit his suit to be viewed
as timely. According to DePuy, no such “exception” exists.
District Judge Theresa Springmann thought that DePuy
had the better of the argument, so she granted its motion
for summary judgment. Klein v. DePuy, Inc., 476 F. Supp.
2d 1007, 1023 (N.D. Ind. 2007). The case is now before us
on Klein’s appeal. As only questions of law are presented,
our review is de novo. Tanner v. Jupiter Realty Corp., 433
F.3d 913, 915 (7th Cir. 2006). Summary judgment is
proper if “there is no genuine issue as to any material fact
and [] the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c).
In September 1998, Klein underwent a left total hip
replacement surgery in his home state of North Carolina.
The prosthesis used in the surgery was manufactured by
DePuy Orthopaedics, an Indiana corporation with its
principal place of business in Indiana. Some time later,
Klein experienced severe pain in his left hip, which he
reported to his orthopedic surgeon, Dr. Jack W. Bowling,
Jr. Dr. Bowling told Klein that his hip replacement was
failing due to (among other things) osteolysis, a progres-
sive disease commonly seen in conjunction with artificial
joint replacement and caused by an inflammatory reac-
tion to particulate debris from an artificial joint.
On June 9, 2006, Dr. Bowling performed revision surgery
on Klein’s hip, removing various components of the
prosthesis and confirming his diagnosis of osteolysis. Dr.
Bowling believed that the hylamer cup liner used in
No. 07-1493 3
Klein’s hip replacement wore at a faster rate than pre-
dicted, causing excessive amounts of polyethylene debris
to cascade down into Klein’s proximal femur area. The
excessive debris, Dr. Bowling said, resulted in osteolysis,
which, in turn, caused Klein’s pain and the failure of his
prosthesis. Significantly for our purposes, Klein received
(and continues to receive) all of his medical care in North
Carolina.
On August 15, 2005, Klein filed suit in the Northern
District of Indiana, maintaining that the hip prosthesis
was defective and that it caused his injuries. Klein alleged
ten counts of misconduct, including products liability,
failure to warn, negligence, negligent and fraudulent
misrepresentation, breach of warranties, and negligent
infliction of emotional distress. As we noted, Ms. Rice,
Klein’s wife at the time of the suit, brought a claim for
loss of consortium.
On January 19, 2006, DePuy moved for summary
judgment on the basis of North Carolina’s six-year statute
of repose. On January 31, 2007,2 Judge Springmann
granted DePuy’s motion in a comprehensive opinion and
order. This appeal followed.
The first issue is whether Judge Springmann correctly
concluded that Indiana would apply North Carolina law
(six-year statute of repose), as opposed to Indiana law (ten-
year statute of repose), to Klein’s claims. In tort cases,
where a conflict exists,3 Indiana presumes that the tradi-
tional rule—lex loci delicti—governs. Simon v. United
2
After DePuy moved for summary judgment, the parties filed
(and the district court granted) a joint motion for extension of
deadlines to allow for Klein’s revision surgery.
3
Here, it is undisputed that a conflict exists—that is, that the
“differences between the laws of the states are ‘important
enough to affect the outcome of the litigation.’ ” Simon, 805
N.E.2d at 805. Thus, we will not belabor this preliminary matter.
4 No. 07-1493
States, 805 N.E.2d 798, 805 (Ind. 2004). Under the rule,
the district court applies the substantive law of “the
state where the last event necessary to make an actor
liable for the alleged wrong takes place.” Hubbard Mfg. Co.
v. Greeson, 515 N.E.2d 1071, 1073 (Ind. 1987). If, and
only if, that location “bears little connection” to the legal
action, the presumption in favor of the location of the tort
may be overcome and additional factors may be con-
sidered. Id. at 1073-74.
Judge Springmann found that North Carolina was the
location of the tort and that it bore enough of a connection
to the legal action for the traditional rule to apply. On
appeal, Klein asserts three arguments against this
ruling: (1) the location of the tort was actually Indiana
because DePuy designed, manufactured, marketed, and
distributed the allegedly defective product there; (2)
assuming arguendo that North Carolina was the location
of the tort, it bears so little significance to the legal action
that the presumption is rebutted; and (3) policy consider-
ations favor applying Indiana law. Each of these argu-
ments fails.4
Klein’s first argument—that Indiana was the location of
the tort—is directly contradicted by case law. As we have
previously stated, Indiana’s lex loci delicti principle
points to the location of the injury, not the defendant’s
corporate headquarters, as the source of law. In re
Bridgestone/Firestone, Inc., 288 F.3d 1012, 1016 (7th Cir.
2002). Furthermore, in a recent case, Alli v. Eli Lilly and
Co., the Indiana Court of Appeals found that the last event
necessary to complete the alleged torts of strict products
4
At oral argument, Klein’s counsel correctly conceded that her
clients had an uphill battle, candidly admitting that, if the
shoe were on the other foot, she would be arguing that North
Carolina law governed.
No. 07-1493 5
liability, misrepresentation, and negligence brought
against the manufacturer of an antidepressant medica-
tion was the injury that occurred when the plaintiff ’s
husband committed suicide, not when the antidepres-
sants were manufactured. 854 N.E.2d 372, 378 (Ind. Ct.
App. 2006); see also Simon, 805 N.E.2d at 806 (finding
that the last event necessary to make the defendant
liable for wrongful death was the injury that occurred
when the plane crashed and the decedents died, not when
the prior negligent acts were committed).
In this case, the last event necessary to make DePuy
liable was the injury and physical harm that occurred
when the prosthesis failed and Klein developed osteolysis.
This occurred in North Carolina, making the Tar Heel
State the location of the tort.
Klein’s second argument—that North Carolina bears
little significance to the legal action—requires even less
discussion. Indiana law tells us that “[i]n a large number
of cases, the place of the tort will be significant and the
place with the most contacts.” Hubbard, 515 N.E.2d at
1073. Only in “rare cases” will the presumption in favor
of the traditional rule be overcome. Simon, 805 N.E.2d
at 806. In Alli, the Indiana Court of Appeals found that
the location of the tort was significant where the plain-
tiff ’s late husband lived, worked, and received his medical
treatment—including the antidepressant medication
implicated in the lawsuit—in that state. 854 N.E.2d
at 379.
Here, Klein resided, consulted with doctors, and decided
to undergo hip replacement surgery in North Carolina. He
received his prosthesis, diagnosis of osteolysis, revision
surgery, and all of his medical care there. We would be
hard-pressed to conclude anything but that the location of
the injury is significant to this action.
6 No. 07-1493
Klein’s final argument—that policy considerations
favor applying Indiana law—also comes up short. While
Indiana does have a public policy exception, it is reserved
for cases where its sister state’s law is “immoral, unnatu-
ral, unjust, or prejudicial to the general interests of the
citizens of Indiana.” Alli, 854 N.E.2d at 380; see also
Schaffert by Schaffert v. Jackson Nat’l Life Ins. Co., 687
N.E.2d 230, 234 (Ind. Ct. App. 1997) (declining to use the
doctrine where the sister state’s law was not “immoral or
against natural justice”).
The difference between the North Carolina and Indiana
statutes at issue in this case concerns the time frame
during which consumers may sue a manufacturer for
product defects. This issue does not implicate the general
interests of Indiana citizens, so we conclude that North
Carolina’s law would not offend the public policy of
Indiana. As a result, Klein is stuck with North Carolina’s
six-year statute of repose. And that makes his suit un-
timely.
We now turn to the second issue: whether the North
Carolina Supreme Court would apply an exception to its
statute of repose to permit this suit to be viewed as
timely.5 The parties agree that N.C. Gen. Stat. § 1-50(a)(6)6
governs this case. Section 1-50(a)(6) says that “[n]o action
for the recovery of damages for personal injury . . . based
upon or arising out of any alleged defect or any failure
in relation to a product shall be brought more than six
5
Currently, North Carolina law does not allow us to certify an
unsettled question of state law to its Supreme Court for resolu-
tion.
6
N.C. Gen. Stat. § 1-50(a)(6) was previously § 1-50(6). Like the
district court, we will use these two citations interchangeably.
All statutes cited in the following discussion refer to N.C. Gen.
Stat.
No. 07-1493 7
years after the date of initial purchase for use or con-
sumption.” But is an exception lurking here that gives
Klein more time to sue?
At first blush, this seems like an easy issue to decide.
As opposed to a statute of limitations, which begins
running upon the accrual of some claim and permits
equitable exceptions, § 1-50(a)(6) is a statute of repose,
which “serves as an unyielding and absolute barrier” to a
cause of action, regardless of whether that cause has
accrued. Black v. Littlejohn, 325 S.E.2d 469, 475 (N.C.
1985). Furthermore, the plain language of § 1-50(a)(6)
creates no exceptions at all. Indeed, the North Carolina
Supreme Court has already stated that “[i]t is clear from
this language that Section 1-50(6) excludes all actions
brought after six years.” Tetterton v. Long Mfg. Co., 332
S.E.2d 67, 72 (N.C. 1985). However, one North Carolina
case, decided more than 20 years ago, prevents this
from being the end of our discussion.
Wilder v. Amatex Corp. held that a different statute, § 1-
15(b), had no application to claims arising from disease.
336 S.E.2d 66, 73 (N.C. 1985). Section 1-15(b), which
actually had been repealed by the time Wilder was decided,
stated:
Except where otherwise provided by statute, a cause of
action, other than one for wrongful death or one for
malpractice arising out of the performance or failure
to perform professional services, having as an essen-
tial element bodily injury to the person or a defect
in or damage to property which originated under
circumstances making the injury, defect or damage not
readily apparent to the claimant at the time of its
origin, is deemed to have accrued at the time the
injury was discovered by the claimant, or ought
reasonably to have been discovered by him, whichever
event first occurs; provided that in such cases the
8 No. 07-1493
period shall not exceed ten years from the last act
of the defendant giving rise to the claim for relief.
Although the primary purpose of § 1-15(b) was to change
the accrual date from which the period of limitations
began to run, the legislature also added the final clause,
which created a ten-year statute of repose. Wilder, 336
S.E.2d at 69. Importantly, Wilder construed both provi-
sions—that is, all of § 1-15(b)—to apply only to “latent
injury claims,” or “cases in which the bodily injury . . . was
not readily apparent to the claimant at the time of its
origin.” Id. at 70 (emphasis omitted).
The reason § 1-15(b) did not apply to claims arising
from disease was because the Wilder court found that
diseases were not latent injuries. Id. at 72-73. After
examining workers’ compensation statutes and its deci-
sions interpreting them, the court concluded that, when
it drafted § 1-15(b), the legislature already recognized
that a disease’s diagnosis was the “first injury” from
which various time periods began to run. Id. at 72. Be-
cause diseases have a first identifiable injury, the court
said, they are not “latent,” and § 1-15(b)—including its
statute of repose—does not govern them. Id. at 73.
Changes in the bill from its original form (which specifi-
cally referred to disease) to its final enactment (which
omitted all references to disease) also supported the
court’s conclusion that § 1-15(b) excepted claims arising
from disease. Id.
Klein argues that the North Carolina Supreme Court
would apply this “disease exception” to § 1-50(a)(6). This
is a stretch, considering that Wilder involved an entirely
different statute and that no North Carolina state court
has ever applied a disease exception to § 1-50(a)(6). But,
a case out of the Fourth Circuit, again decided more
than 20 years ago, predicted that just such an exception
would apply.
No. 07-1493 9
In Hyer v. Pittsburg Corning Corp., an asbestosis case,
the Fourth Circuit adopted the proposition that Wilder
“makes it plain . . . that the [North Carolina] Supreme
Court does not consider disease to be included within a
statute of repose directed at personal injury claims
unless the Legislature expressly expands the language
to include it.” 790 F.2d 30, 34 (4th Cir. 1986) (quoting
Garder v. Asbestos Corp., 634 F. Supp. 609, 612 (W.D.N.C.
1986)). Consequently, the court applied Wilder’s “disease
exception” to § 1-50(6). Id. In subsequent cases, the
Fourth Circuit followed Hyer without much reconsideration
or elaboration. See Bullard v. Dalkon Shields Claimants
Trust, 74 F.3d 531, 533 (4th Cir. 1996); Guy v. E.I. DuPont
de Nemours & Co., 792 F.2d 457, 460 (4th Cir. 1986);
Silver v. Johns-Manville Corp., 789 F.2d 1078, 1080 (4th
Cir. 1986). Significantly, none of these cases has been cited
in any reported North Carolina state court decision.
Judge Springmann declined to follow Fourth Circuit
precedent because she believed that it misinterpreted
Wilder. We agree. While those cases accurately stated
Wilder’s holding, they did not recognize the latent injury
distinction that was so vital to Wilder’s outcome. Remem-
ber, Wilder held that diseases were excluded from § 1-15(b)
because § 1-15(b) was limited to “latent injuries.” However,
Hyer interpreted Wilder to hold that, in the context of a
statute of repose, diseases were not “injuries” at all. As a
result, Hyer applied a disease exception to a statute that
was not limited to latent injuries. We, of course, “carefully
consider the opinions of our sister circuits,” Atchison,
Topeka and Santa Fe Ry. Co. v. Pena, 44 F.3d 437, 443
(7th Cir. 1994). But with all due respect here, we cannot
follow the Fourth Circuit on this issue.
Now that we have rejected Hyer’s analysis of the “disease
exception,” we turn to our own prediction. After con-
sidering the three factors on which the Wilder court
10 No. 07-1493
based its decision regarding § 1-15(b), we conclude that
the North Carolina Supreme Court would not apply an
exception to § 1-50(a)(6).
The first factor that Wilder considered was the stat-
ute’s purpose. As we have stated, the primary purpose
of § 1-15(b) was to change the accrual date from which
the period of limitations began to run on latent injury
claims. Wilder, 336 S.E.2d at 69. Section 1-50(a)(6),
however, “was generally intended to shield [ ] manu-
facturers of durable goods from ‘open-ended’ liability
created by allowing claims for an indefinite period of time
after the product was first sold and distributed.” Tetterton,
332 S.E.2d at 73. As opposed to § 1-15(b), § 1-50(a)(6) says
nothing about accrual nor, as we have discussed, is it
limited to latent injuries.
Second, Wilder looked at the state of the law when the
statute was enacted. The court concluded that there
was no need for the legislature to change the accrual
date for diseases at that time because it already recog-
nized that diseases were not latent. 336 S.E.2d at 73.
Because it deals with neither latent injuries nor accrual,
the state of the law regarding when diseases are consid-
ered “injuries” for accrual purposes is irrelevant to § 1-
50(a)(6). Rather, when § 1-50(a)(6) was enacted, “[t]he
number of suits being brought against manufacturers
was increasing . . . and the legislature sought to curtail
such suit and to limit the manufacturers’ liability by
enacting product liability reform statutes.” Tetterton, 332
S.E.2d at 73. As a result, unlike § 1-15(b), § 1-50(a)(6) is
solely “a statute of repose and an absolute bar to plaintiffs’
products liability action[s].” Id. at 75.
Third, Wilder focused on the deliberate omission of
reference to disease from earlier versions of the bill to the
final version. However, Klein concedes that similar
evidence regarding § 1-50(a)(6) does not exist. Thus, the
No. 07-1493 11
three Wilder factors all support a conclusion that, unlike
§ 1-15(b), § 1-50(a)(6) was not intended to contain a
“disease exception.”
The final strike against Klein’s position comes from a
North Carolina case that considered whether a “disease
exception” would apply to § 1-52(16), the statute that
replaced § 1-15(b). Section 1-52(16) states:
Unless otherwise provided by statute, for personal
injury or physical damage to claimant’s property, the
cause of action, except in causes of actions referred to
in G.S. 1-15(c), shall not accrue until bodily harm to
the claimant or physical damage to his property
becomes apparent or ought reasonably to have become
apparent to the claimant, whichever event first occurs.
Provided that no cause of action shall accrue more
than 10 years from the last act or omission of the
defendant giving rise to the cause of action.
As a successor statute, § 1-52(16) looks a lot like § 1-15(b)
with an important difference: unlike § 1-15(b), § 1-52(16)
is not limited to latent injury claims. Wilder, 336 S.E.2d
at 69.
In Dunn v. Pacific Employers Insurance Co., an occupa-
tional disease case, the North Carolina Supreme Court
found that § 1-52(16) applied to claims arising out of
disease. 418 S.E.2d 645, 648 (N.C. 1992) (“Decedent’s
bodily injury claim, had he lived, would have . . . been
time-barred three years later under [ ] § 1-52(16).”). This
finding is consistent with Wilder because (to repeat)
unlike its predecessor, § 1-52(16) is not limited to latent
injury claims. Dunn’s language also rejects Hyer’s proposi-
tion that diseases must be expressly included in a statute
of limitation or repose directed at personal injury claims
for the statute to apply. Because the North Carolina
Supreme Court has concluded that even § 1-15(b)’s suc-
cessor statute does not exempt diseases, we find no
12 No. 07-1493
reason to believe that it would apply such an exception to
the less-similar statute of repose at issue in this case.
In sum, we agree with Judge Springmann that North
Carolina law, rather than Indiana law, applies to Klein’s
claims. We also agree that, had the North Carolina
Supreme Court received this case, it would not have
applied a “disease exception” to the six-year statute of
repose at issue. The plain language of the statute, its
history, and North Carolina case law all support our
belief that no exception was intended. We leave it up to
the North Carolina legislature to amend the statute if
we are mistaken.
For the foregoing reasons, summary judgment in favor
of the defendants is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-25-07