UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Phyllis Ann Good, 

Plaintiff, 

v. 

Howmedica Osteonics Corp., 

Defendant 

and 

Stephen Pepke and Tara Pepke, 

Plaintiffs, 

v. 

Howmedica Osteonics Corp., 

Defendant. 

________________________________/

Case Nos. 15-cv-10133 

15-cv-10134 

Hon. Judith E. Levy 

Mag. Judge R. Steven Whalen 

OPINION AND ORDER GRANTING DEFENDANT’S MOTIONS 

TO DISMISS [GOOD, DKT. 10; PEPKE, DKT. 11] AND DENYING 

DEFENDANT’S MOTIONS TO STRIKE [GOOD, DKT. 11; PEPKE, 

DKT. 12] AS MOOT1

 

1 The Court will refer to Case No. 15-cv-10133 as “Good” and Case No. 15-cv-10134 

as “Pepke” in citations to the record. 

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 These are products liability cases. Plaintiffs Phyllis Ann Good 

and Stephen Pepke each allege that they have experienced injury 

following the implantation of CerviCore Disc devices, which are 

manufactured by defendant. Pending are motions to dismiss both 

complaints. 

I. Factual Background 

Plaintiffs initially filed suit in the Southern District of Illinois on 

April 11, 2014, along with seven other recipients of the CerviCore 

device, and four other spouses. McGrew v. Howmedica Osteonics Corp., 

Case No. 14-cv-430 (S.D. Ill.). 

Of the fourteen plaintiffs, only one plaintiff resided in Illinois: 

Carol McGrew. The rest resided in a variety of other states. On 

January 13, 2015, the court granted defendant’s motion to sever the 

plaintiffs and transfer venue of each of the McGrew plaintiffs’ cases to 

their home states. (Good, Pepke, Dkt. 2.) On January 30, 2015, the 

Court held a telephonic status conference with counsel and set 

February 20, 2015 as the date for plaintiffs to file amended complaints 

and April 1, 2015 as the date for defendant to file a responsive pleading 

to each complaint. 

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Plaintiffs filed their amended complaints on February 21, 2015. 

Their amended complaints have been appended to the original 

complaint plaintiffs joined in Illinois. Plaintiffs allege that defendant 

manufactured the CerviCore device, and that it was defective. Good 

had a CerviCore device implanted on February 21, 2008. (Good, Dkt. 9 

at 23.) Stephen Pepke had a CerviCore device implanted on March 20, 

2008. (Pepke, Dkt. 10 at 23.) 

Good alleges that “[a]round two months after the surgery, [she] 

began suffering from rashes,” and “[l]ater that year, when the pain was 

so great she could no longer move her neck, [she] began receiving pain 

management treatments.” (Good, Dkt. 9 at 23.) Pepke alleges that 

“[w]ithin a few days of implantation, [he] began experienc[ing] extreme 

pain,” and that the “pain worsened over the next two years.” (Pepke, 

Dkt. 10 at 23.) 

Plaintiffs bring thirteen similar claims: 1) Design Defect, 2) 

Manufacturing Defect, 3) Failure to Warn, 4) Negligence, 5) Gross 

Negligence, 6) Fraud by Concealment, 7) Fraudulent Misrepresentation, 

8) Negligent Misrepresentation, 9) Breach of Contract, 10) Breach of 

Express Warranty, 11) Breach of Implied Warranty, 12) Infliction of 

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Emotional Distress, and 13) Michigan Statutory and Common Law 

Remedies. Plaintiff Tara Pepke brings an additional claim for loss of 

consortium. 

Defendant timely filed a motion to dismiss each complaint and a 

motion to strike certain paragraphs of each complaint on April 1, 2015. 

Oral argument was held on the motions on August 27, 2015. 

II. Legal Standard 

When deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6), 

the Court must “construe the complaint in the light most favorable to 

the plaintiff and accept all allegations as true.” Keys v. Humana, Inc.,

684 F.3d 605, 608 (6th Cir.2012). “To survive a motion to dismiss, a 

complaint must contain sufficient factual matter, accepted as true, to 

state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009). A plausible claim need not contain “detailed 

factual allegations,” but it must contain more than “labels and 

conclusions” or “a formulaic recitation of the elements of a cause of 

action[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 

III. Analysis 

A. Timeliness of Motions to Dismiss 

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Plaintiffs argue that defendant’s motions to dismiss are untimely, 

because defendant already answered their initial complaints in Illinois. 

Because an answer was already filed at some point in the litigation, 

plaintiffs contend that defendant cannot now file a motion to dismiss in 

response to plaintiffs’ amended complaints. Plaintiffs also argue that 

the motion cannot be converted to a motion for judgment on the 

pleadings, because defendant has not filed an answer to the amended 

complaint. 

Fed. R. Civ. P. 15(a) permits parties to file the same “required 

response” to an amended pleading, governed by Fed. R. Civ. P. 12, that 

parties would have been able to file in response to the original pleading. 

Plaintiffs’ argument is self-refuting on its face: defendants cannot both 

be punished for filing an answer in Illinois and not filing an answer in 

Michigan. The motions to dismiss were timely filed and are properly 

considered at this stage. 

B. Choice of Law 

Plaintiffs contend that, because this case was filed in Illinois, 

Illinois substantive law and statutes of limitations apply, while 

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defendant argues that Michigan substantive law and statutes of 

limitations apply. 

Because the case was filed in Illinois, Illinois’ choice of law rules 

apply. In re Dow Corning Corp., 778 F.3d 545, 549-50 (6th Cir. 2015). 

Illinois courts apply the “most significant contacts” test, “which involves 

balancing a number of factors, including the place where the injury 

occurred; the place where the conduct causing the injury occurred; the 

domicile or place of business of each party; and the place where the 

relationship between the parties is centered.” Ennenga v. Starns, 677 

F.3d 766, 774 (7th Cir. 2012). 

 Each of these factors requires that Michigan law be applied. 

First, plaintiffs had the devices implanted in Michigan, and dealt with 

the alleged injuries resulting from the implantations in Michigan. 

Second, the conduct causing the injuries (the implantation of the 

allegedly defective device) occurred in Michigan. Third, plaintiffs are 

both Michigan residents, and defendant is a New Jersey corporation.2 

 

2 Plaintiffs attempt to argue that defendant is a resident of Illinois because it does 

business in Illinois. However, under Illinois law, “a corporation can have but one 

residence, that being the State of its creation.” LeBlanc v. G.D. Searle & Co., 178 

Ill. App. 3d 236, 239 (1988) (further citation omitted). Defendant was founded in 

New Jersey, and so is a resident of New Jersey for the purposes of these actions. 

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Finally, the relationship between the parties is centered in Michigan, 

where plaintiffs reside and have sought medical treatment.3 

 Illinois courts, however, will generally apply the Illinois statute of 

limitations “because statutes of limitations are procedural, fixing the 

time in which the remedy for a wrong may be sought rather than 

altering substantive rights.” Freeman v. Williamson, 383 Ill. App. 3d 

933, 939 (2008). The exception to this is Illinois’ Borrowing Statute, 

which states that “[w]hen a cause of action has arisen in a state or 

territory out of this State, or in a foreign country, and, by the laws 

thereof, an action thereon cannot be maintained by reason of the lapse 

of time, an action thereon shall not be maintained in this State.” Ill. 

Comp. Stat. Ann. Ch. 735 § 5/13-210. 

 Therefore, the Court will determine whether the claims brought in 

Illinois were barred by Michigan’s statutes of limitations at the time of 

their initial filing. If they were, Michigan’s statutes of limitations 

apply; if they were not, Illinois’ statutes of limitations apply. 

C. Statutes of Limitations – Michigan Law 

 

3 This is further bolstered by the fact that plaintiffs each requested Michigan 

statutory and common law remedies in the alternative to the common law theories 

otherwise pled. 

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a. Product Liability Claims 

Michigan law’s product liability statute is expansive, and brings 

under its umbrella any “action based on a legal or equitable theory of 

liability brought for . . . injury to a person or damage to property caused 

by or resulting from the production of a product.” M.C.L. § 600.2945(h). 

“Production means manufacture, construction, design, formulation, 

development of standards, preparation, processing, assembly, 

inspection, testing, listing, certifying, warning, instructing, marketing, 

selling, advertising, packaging, or labeling.” M.C.L. § 600.2945(i). 

Defendant correctly argues that under Michigan law, a court is to 

“determine the gravamen of a party’s claim by reviewing the entire 

claim, and a party cannot avoid dismissal of a cause of action by artful 

pleading.” Att’y Gen. v. Merck Sharp & Dohme Corp., 292 Mich. App. 1, 

10 (2011). With the exception of the breach of contract, fraud, and loss 

of consortium claims, the claims in this matter are all (1) based on a 

legal or equitable theory of liability, (2) brought for injury to a person, 

and (3) alleging that the loss was caused by or resulted from the 

manufacture, construction, design, formulation, development of 

standards, preparation, processing, assembly, inspection, 

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testing, listing, certifying, warning, instructing, marketing, selling, 

advertising, packaging, or labeling of a product. Id. at 10-11. 

Accordingly, plaintiff’s design defect, manufacturing defect, failure to 

warn, negligence, gross negligence, negligent misrepresentation, breach 

of express warranty, breach of implied warranty, and catch-all 

Michigan statutory and common law remedy claims all sound as 

product liability claims. 

The statute of limitations for product liability claims is three 

years. M.C.L. § 600.5805(13). “Except as otherwise expressly provided, 

the period of limitations runs from the time the claim accrues,” which in 

this case is “at the time the wrong upon which the claim is based was 

done regardless of the time when damage results.” M.C.L. § 600.5827. 

Specifically, “[t]he wrong is done when the plaintiff is harmed rather 

than when the defendant acted.” Boyle v. Gen. Motors Corp., 468 Mich. 

226, 231 n.5 (2003). 

The Michigan Supreme Court has stated that “the plain language 

of M.C.L. § 600.5827 precludes the use of a broad common-law discovery 

rule to toll the accrual date of claims[.]” Trentadue v. Gorton, 479 Mich. 

378, 407 (2007). Accordingly, the wrong is done at the first moment of 

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harm, and is not tolled because the plaintiff did not discover the harm 

until later. 

Michigan courts have specifically held that there is no continuing 

wrongs doctrine in “cases involving products liability actions seeking 

damages for personal injury[.]” Blazer Foods, Inc. v. Rest. Props., Inc., 

259 Mich. App. 241, 247 (2003) (citing Asher v. Exxon Co. U.S.A., 200 

Mich. App. 6353 (1993)). Michigan’s products liability statute of 

limitations is not tolled because the wrong is not abated. “[A] separate 

cause of action [will not] accrue each day that defendant’s tortious 

conduct continues.” Id. at 246 (quoting Jackson Co. Hog Prods. v. 

Consumers Power Co., 234 Mich. App. 72, 81 (1999)). 

The statute of limitations on Good’s product liability claims began 

running around two months after her CerviCore device was implanted 

on February 21, 2008, when she began experiencing rashes. (Good, 

Dkt. 9 at 23.) At the latest, that period began running “[l]ater that year 

[in 2008], when the pain was so great she could no longer move her 

neck[.]” (Id.) At the latest, the statute of limitations ran on Good’s 

product liability claims some time in 2011, well before Good filed suit on 

April 11, 2014. 

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The statute of limitations on Pepke’s product liability claims 

began running “[w]ithin a few days of [the March 20, 2008] 

implantation” when he “began experienc[ing] extreme pain[.]” (Pepke, 

Dkt. 10 at 23.) At the latest, the statute of limitations ran on Pepke’s 

product liability claims in late March 2011, well before Pepke filed suit 

on April 11, 2014. 

For these reasons, Good and Pepke’s claims for design defect, 

manufacturing defect, failure to warn, negligence, gross negligence, and 

breach of implied warranty are barred by the applicable three-year 

statute of limitations. 

b. Fraud Claims 

Fraud claims under Michigan law are subject to a six-year statute 

of limitations. M.C.L. § 600.5813. As set forth above, Michigan courts 

classify all claims related to product liability as product liability claims. 

On review of relevant Michigan caselaw, it is unclear whether the 

specific statute of limitations for fraud cases is subsumed by the broadly 

applicable three-year products liability statute of limitations when a 

plaintiff is alleging fraud in relation to disclosure of a product defect. It 

is immaterial, however, because the fraud claims are barred by the six5:15-cv-10134-JEL-RSW Doc # 23 Filed 12/08/15 Pg 11 of 27 Pg ID 352
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year statute of limitations, to which the discovery rule also does not 

apply. See Boyle v. Gen. Motors Corp., 468 Mich. 226, 231-232 (2003) 

(holding that the discovery rule does not apply to the accrual of actions 

for fraud). 

In each of their fraud claims, plaintiffs argue that but for the 

fraud, they would not “have allowed the devices to be implanted in their 

bodies.” (Good, Dkt. 9 at 37, 38; Pepke, Dkt. 10 at 37, 38.) Accordingly, 

the fraud had to have occurred before their implantations. The statute 

of limitations on their fraud claims, accordingly, ran on or before 

February 21, 2014 for Good and March 20, 2014 for Pepke. Both 

plaintiffs’ claims expired before they filed suit in Illinois on April 11, 

2014. 

Plaintiffs’ negligent misrepresentation claims likewise may have 

either the three-year period of limitations applicable to personal injury 

claims or the six-year statute of limitations applicable to fraud claims, 

depending on whether the claim sounds in personal injury or damages 

to financial expectations. Bowman v. Greene, Dkt. No. 308282, 2013 

WL 5925995, at *4-5 (Mich. Ct. App. Nov. 5, 2013). Under either time 

period, dismissal is required. 

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Plaintiffs argue that but for the negligent misrepresentation, 

“they would not have allowed the devices to be implanted in their 

bodies.” (Good, Dkt. 9 at 38; Pepke, Dkt. 10 at 38.) The negligent 

misrepresentation must have occurred before their implantations, and 

because the common law discovery rule is inapplicable to both personal 

injury and fraud claims, the statute of limitations on plaintiff’s 

negligent misrepresentation claims ran either in 2011 or shortly before 

suit was filed in 2014. 

c. Infliction of Emotional Distress 

Plaintiff’s infliction of emotional distress claims are also subject to 

a three-year statute of limitations, and must be brought within three 

years after the claim accrues. Nelson v. Ho, 222 Mich. App. 74, 85 

(1997). The claims are likewise subject to M.C.L. § 600.5827, which 

provides that “the claim accrues at the time the wrong upon which the 

claim is based was done regardless of the time when damage results.” 

Plaintiffs allege that defendant either intentionally or negligently 

inflicted emotional distress through the same acts that underlie most of 

plaintiffs’ other claims: “concealing and ignoring CerviCore’s risks, by 

concealing, ignoring, and refusing to correct repeated deficiencies in its 

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manufacturing processes, by misleading [plaintiffs] about the contents 

of CerviCore, by misleading them about Howmedica’s commitment to 

care for their health, and by not actually providing follow-up care as 

promised.” (Good, Dkt. 9 at 42; Pepke, Dkt. 10 at 42.) This makes the 

emotional distress claims hybrid claims based in part on product 

liability claims, in part on fraud claims, and in part on breach of 

contracts claims. 

In Kott v. Howmedica Osteonics, Case No. 15-cv-11349, the Court 

treated plaintiff’s identical infliction of emotional distress claim as a 

products liability claim, as it fulfilled all of the elements of a products 

liability claim under Michigan law, even with the additional allegations 

based on fraud and breach of contract. (Kott, Dkt. 12 at 12.) That is the 

correct analysis, but the breadth of plaintiffs’ allegations in these claims 

merits further discussion. 

To plead intentional infliction of emotional distress, a plaintiff 

must show “(1) extreme and outrageous conduct, (2) intent or 

recklessness, (3) causation, and (4) severe emotional distress.” Graham 

v. Ford, 237 Mich. App. 670, 674 (1999). Negligent infliction of 

emotional distress “requires that the plaintiff must have witnessed a 

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negligent injury to a third party.” Teadt v. Lutheran Church Missouri 

Synod, 237 Mich. App. 567, 582 n.6 (1999). 

Intentional infliction of emotional distress claims “accrue[] when 

all the elements of the claim have occurred and can be alleged in a 

proper complaint.” Schaendorf v. Consumers Energy Co., 275 Mich. 

App. 507, 512 (2007) (citation omitted). What plaintiffs have pleaded 

here is a course of conduct beginning with fraud and concealment 

predating their 2008 implantations, continuing through the 

implantation of allegedly defective devices, and ending with an alleged 

breach of contract. 

As mentioned previously, the definition of a products liability 

action under Michigan law is any “action based on a legal or equitable 

theory of liability brought for . . . injury to a person or damage to 

property caused by or resulting from the production of a product.” 

M.C.L. § 600.2945(h). The statute does not say that this basis must be 

the sole basis for the action, but instead that the action must be based 

on the aforementioned characteristics. 

Plaintiffs’ infliction of emotional distress claims are based on a 

legal or equitable theory of liability brought for injury to a person 

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caused by or resulting from the production of a product. Therefore, the 

claims accrued when the plaintiffs were first harmed – in this case, 

when the pattern of conduct alleged began. That was at some point 

prior to February 21, 2008 for Good, and March 20, 2008 for Pepke. The 

continuing wrongs doctrine may not be applied to products liability 

claims, and so plaintiffs’ later allegations – even those allegations that 

occurred within the three years before they filed suit – cannot revive 

their claims. 

The claims are, accordingly, time-barred and must be dismissed.4

d. Breach of Contract 

Defendant does not argue that plaintiffs’ breach of contract claims 

are barred by Michigan’s applicable six-year statute of limitations. 

M.C.L. § 600.5807(8). Plaintiffs’ breach of contract claims do not 

identify a date on which the breach of contract occurred. However, 

there are only a few relevant weeks outside of the statute of limitations 

for both Good and Pepke during which the contract could have been 

breached: between February 21, 2008 and April 11, 2008 for Good, and 

 

4 The Court also notes that plaintiffs have failed to state claims for negligent 

infliction of emotional distress, as they do not allege that they witnessed negligent 

injuries to any third parties. 

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March 20, 2008 and April 11, 2008 for Pepke. The Court cannot 

determine at this point whether plaintiffs’ breach of contract claims 

might be time-barred under Michigan law. 

Because plaintiffs’ breach of contract claims are not barred by 

Michigan law, the Court must determine whether the breach of contract 

claims are barred by Illinois’ statute of limitations. The statute of 

limitations on a written contract in Illinois is ten years, making this 

claim timely. 735 Ill. Comp. Stat. 5/13-206. The Court notes, however, 

that if evidence establishes that defendant’s first alleged breaches 

occurred on or before April 11, 2008, the claims may be time-barred due 

to Michigan’s rejection of the continuing wrongs doctrine in contract 

cases. Blazer Foods v. Rest. Props., Inc., 259 Mich. App. 241, 251 

(2003). 

D. Fraudulent Concealment 

Plaintiffs argue that the applicable statutes of limitations are 

tolled either by Michigan’s fraudulent concealment rule, M.C.L. § 

600.5855, or by equitable estoppel based on fraudulent concealment.5 

 

5 Because the Court must, by operation of Illinois law, determine whether plaintiffs’ 

claims are timely filed in Michigan, the Court must apply Michigan’s fraudulent 

concealment rule. 

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Michigan’s fraudulent concealment rule provides: 

If a person who is or may be liable for any claim fraudulently 

conceals the existence of the claim or the identity of any 

person who is liable for the claim from the knowledge of the 

person entitled to sue on the claim, the action may be 

commenced at any time within 2 years after the person who 

is entitled to bring the action discovers, or should have 

discovered, the existence of the claim or the identity of the 

person who is liable for the claim, although the action would 

otherwise be barred by the period of limitations. 

M.C.L. § 600.5855. 

To prove fraudulent concealment, “[t]he plaintiff must show that 

the defendant engaged in some arrangement or contrivance of an 

affirmative character designed to prevent subsequent discovery.” 

Tonegatto v. Budak, 112 Mich. App. 575, 583 (1982). “[T]here must be 

concealment by the defendant of the existence of a claim or the identity 

of a potential defendant[.]” McCluskey v. Womack, 188 Mich. App. 465, 

472 (1991). “[The] plaintiff must plead in the complaint the acts or 

misrepresentations that comprised the fraudulent concealment.” Sills 

v. Oakland Gen. Hosp., 220 Mich. App. 303, 312 (1996). “For a plaintiff 

to be sufficiently apprised of a cause of action, a plaintiff need only be 

aware of a possible cause of action.” Doe v. Roman Catholic Archbishop 

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of Archdiocese of Detroit, 264 Mich. App. 632, 643 (further citations 

omitted). 

Plaintiffs argue that defendant fraudulently concealed their 

claims to the extent that that the two year statute of limitations 

following discovery of the existence of the claim has yet to run, because 

defendant “continues, to this day, to conceal the existence of the claims 

and its own identity as the wrongdoer.” (Dkt. 8 at 14.) 

This argument is not credible in light of the fact that plaintiffs 

filed suit. Either plaintiffs know of their claims, as proven by the 

lawsuit asserting them, or plaintiffs do not know of their claims, and 

the lawsuit is baseless. The Court must treat the lawsuit asserting 

plaintiff’s claims as conclusive evidence that plaintiff is, in fact, aware 

of her claims. 

Plaintiffs have also failed to plead fraudulent concealment in their 

complaints. Plaintiffs reference “fraudulent concealment” three times 

in their complaint, all in the same paragraph. (Good, Dkt. 9 at 27; 

Pepke, Dkt. 10 at 27.) Plaintiffs do not plead the acts or 

misrepresentations that comprised the fraudulent concealment, but 

assert only “Howmedica’s fraudulent concealment, through affirmative 

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misrepresentations and omissions from Plaintiffs and/or their 

physicians” and argue that because of this concealment, they could not 

have known or learned through reasonable diligence of the risks they 

faced. (Id.; Id.) 

It is impossible to discern from the complaint what acts or 

misrepresentations plaintiffs allege constitute defendant’s fraudulent 

concealment. Accordingly, plaintiffs have not met their burden, and the 

Court cannot find that defendant fraudulently concealed any of 

plaintiffs’ claims. 

E. Breach of Contract Claim 

Defendant has moved to dismiss plaintiffs’ breach of contract 

claims on the grounds that the contractual language asserted does not 

establish a duty owed by defendant to plaintiffs. 

The elements of a breach of contract claim under Michigan law are 

(1) the existence of a contract between the parties, (2) the terms of the 

contract requiring performance of a certain action, (3) a breach, and (4) 

the breach causing injury to the other party. Synthes Spine Co., L.P. v. 

Calvert, 270 F. Supp. 2d 939, 942 (E.D. Mich. 2003). 

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Plaintiffs argue that defendant breached the following portion of 

the informed consent agreement, signed before implantation: 

Medical treatment will be offered if you experience a 

complication or injury as a result of your participation in the 

clinical study. You (or your insurance carrier) will be 

financially responsible for costs to treat a research-related 

complication or injury. The study Sponsor [Howmedica] will 

reimburse the hospital and/or your study doctor for costs for 

necessary medical treatment for an injury or complication 

you experience that is solely as a direct result of the use of a 

CerviCore implant according to the study protocol and the 

costs for medical treatment are not covered by any 

responsible third party payer and are not attributable to 

negligence or misconduct by you, the hospital, or the study 

doctor. 

(Good, Dkt. 9 at 19-20; Pepke, Dkt. 10 at 19-20.) Plaintiffs also allege 

that in or around 2010, an addendum was presented that stated the 

following: 

Medical treatment will be offered if you experience a 

complication or injury as a result of your participation in the 

clinical study. If it is determined by the Principal 

Investigator that the CerviCore device must be removed, the 

study Sponsor will cover the cost of the explant surgery if 

the explant surgery is performed at the Institution. You (or 

your insurance carrier) will be responsible for costs to treat a 

research related complication or injury, including a 

complication or injury resulting from an explant surgery, 

unless the complication or injury is directly related to the 

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CerviCore device and is treated at the Institution. In this 

case, the study sponsor will cover the cost of treating the 

complications or injury. The study sponsor will not provide 

any other form of compensation for injury. 

(Id. at 20.) 

 Plaintiffs contend that these clauses required defendant to provide 

medical care and monitor the health of those patients who received 

CerviCore Discs. Defendant contends that these clauses did not require 

it to provide medical care or to monitor the health of CerviCore 

patients. 

 Interpretation of the plain language of a contract determines the 

legal effect of the language within, and the Court’s legal analysis does 

not entitle plaintiffs “to the same presumption in favor of the 

nonmovant as . . . factual allegations when a court rules on a motion to 

dismiss.” DeClercq v. JP Morgan Chase Bank, N.A., 618 Fed. Appx. 

834, 836 (citing Twombly, 550 U.S. at 555). 

The first contract clause plaintiffs reference states that “[m]edical 

treatment will be offered if you experience a complication or injury as a 

result of your participation in the clinical study.” Based on this 

language, plaintiffs contend that defendant had a contractual duty to 

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provide medical treatment. This passive-voice sentence does not say 

who will offer the medical treatment. 

Reading further, the clause states that defendant “will reimburse 

the hospital and/or your study doctor for costs for necessary medical 

treatment for an injury or complication you experience . . . .” The 

contract creates a duty on defendant’s part to reimburse a third party 

for medical treatment that third party provided. The contract does not 

state that defendant is a “hospital” or “study doctor.” Instead, it states 

that the hospital and/or study doctor will provide medical treatment 

and that defendant will, in turn, cover the costs of that care in certain 

circumstances. If defendant were obligated to provide the medical 

treatment, it would not need to establish a provision to reimburse itself 

for the treatment it provided. 

In operation, the contract does not state that defendant must 

provide medical treatment. It also contains no provision that can be 

read to create a duty on its part to monitor the health of patients. The 

2010 addendum reinforces this interpretation of the contract. It states 

that “[i]f it is determined by the Principal Investigator that the 

CerviCore device must be removed, the study Sponsor will cover the 

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cost of the explant surgery if the explant surgery is performed at the 

Institution.” The Principal Investigator (whom plaintiffs do not contend 

is defendant) is to determine whether the CerviCore device must be 

removed. Defendant covers the cost of the surgery, but is not the entity 

providing the actual treatment. 

Plaintiffs have provided no contract language creating a duty on 

the part of defendant to do anything other than cover the cost of certain 

care, with other entities providing that care. Accordingly, plaintiffs 

have failed to state a claim for breach of contract. 

F. Loss of Consortium Claim 

Plaintiff Tara Pepke asserts a claim for loss of consortium. Loss of 

consortium claims are independent claims derivative of underlying 

bodily injury claims. Wesche v. Mecosta Cnty. Road Comm’n, 480 Mich. 

75, 85 (2008). Because Stephen Pepke has no bodily injury claims 

remaining in this case, Tara Pepke’s loss of consortium claim has no 

claim of which it could be derivative. Accordingly, Tara Pepke’s loss of 

consortium claim is dismissed. 

G. Denial of Leave to Amend 

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Plaintiffs seek leave to amend their complaints “[s]hould the 

Court determine any of [their] claims fail on procedural (as opposed to 

substantive) grounds[.]” (Good, Dkt. 15 at 32; Pepke, Dkt. .) Under 

Fed. R. Civ. P. 15(a)(2), “[t]he court should freely give leave [to amend a 

complaint] when justice so requires” if the party has already amended 

her pleadings once as a matter of course, which plaintiff 

has. “A motion to amend a complaint should be denied if the 

amendment is brought in bad faith, for dilatory purposes, results in 

undue delay or prejudice to the opposing party, or would 

befutile.” Crawford v. Roane, 53 F.3d 750, 753 (6th Cir.1995). 

Here, plaintiffs seek leave to amend their complaints to avoid 

dismissal on statute of limitations grounds. However, the Court can 

discern no way that plaintiffs could successfully amend their complaint 

to survive a Rule 12(b)(6) motion to dismiss on statute of limitations 

grounds unless they removed numerous pertinent facts from their 

complaints. Those facts would include the time at which plaintiffs 

started experiencing complications from the CerviCore devices, and the 

time at which plaintiffs believe they were first defrauded. 

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Such an amendment would not be brought in good faith. The 

purpose of the amendment would be to remove or alter otherwise 

dispositive facts from the complaint in order to survive a motion to 

dismiss. The amendment would, at best, unnecessarily extend this 

litigation until summary judgment, when the Court would again be 

required to hold the same claims time-barred under the relevant 

statutes of limitations. 

Leave to amend the complaint is therefore denied. 

IV. Conclusion 

For the reasons set forth above, it is hereby ordered that: 

Defendant’s motions to dismiss (Good, Dkt. 10; Pepke, Dkt. 11) are 

GRANTED; 

Defendant’s motions to strike (Good, Dkt. 11; Pepke, Dkt. 12) are 

DENIED AS MOOT; and 

Plaintiffs’ complaints are DISMISSED WITH PREJUDICE. 

IT IS SO ORDERED. 

Dated: December 8, 2015 s/Judith E. Levy 

Ann Arbor, Michigan JUDITH E. LEVY 

United States District Judge 

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CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s 

ECF System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on December 8, 2015. 

s/Felicia M. Moses 

FELICIA M. MOSES 

Case Manager 

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