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Sixth Circuit Revives Breast Implant Suit with Choice of Law Application

— February 23, 2015

The  opinion in Sutherland v. DCC Litigation Center, issued by the Sixth Circuit is a must-read, dealing with issues of choice of law as affected by both tort and bankruptcy law, across decades and multiple courts.  At the heart of this litigation is a case by a woman who sustained injuries after receiving  breast implants made of silicone manufactured by Dow Corning in 1988.  The plaintiff filed suit in 1993 in the Middle District of North Carolina.

The case was later transferred into a Federal multidistrict litigation proceeding in the Northern District of Alabama.  A settlement was reached in the MDL in 1994, and the plaintiff opted out.

Dow filed for bankruptcy protection in 1995 in the Eastern District of Michigan, and plaintiff’s claims were transferred there as “related to” the bankruptcy proceeding.  Dow Corning created the DCC Litigation Center to deal with opt-out claims, like plaintiff’s.  Settlement talks broke down in 2009, and the DCC Litigation Center moved to certify the case for trial.  Plaintiff was ordered to file a new complaint in 2010.  Litigation proceeded thereafter towards trial on this new complaint and in May 2012, the DCC Litigation Center filed five motions for summary judgment, including one alleging that Plaintiff’s claims are barred by the statute of limitations.

The district court declined to apply a choice of law analysis on the statute of limitations claims, finding such analysis unnecessary, and granted summary judgment to DCC on statute-of-limitations grounds, explicitly declining  to address as unnecessary any of DCC’s other arguments.  An appeal of the grant of summary judgment followed, and the Sixth Circuit delved into the choice of law analysis.

A divided panel ultimately found that under appropriate choice of law analysis, North Carolina law, and a particular exception to the statute of limitations,  may not preclude the Plaintiff’s claims.  The court found that Plaintiff sufficiently raised a genuine issue of material fact on the statute of limitations of issue such that the grant of summary judgment was improper, and remanded for further proceedings.

The dissenting opinion argues that the choice of law analysis was improperly applied.

Plaintiff will thus have another chance at a recovery based upon her 1988 surgery and 1993 suit.

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