Opinion
Civil Action No. 3:97CV-778-S
July 29, 2002
MEMORANDUM OPINION
This matter is before the court on the motions of defendants Norman M. Cole, M.D. and Norman M. Cole, M.D., P.S.C. for summary judgment and for dismissal of plaintiffs' claims. For the reasons stated below, defendants' Motion for Summary Judgment will be GRANTED. Defendants' Motion to Dismiss and/or for Sanctions will be DENIED AS MOOT.
BACKGROUND
This action arises from silicone breast implants plaintiff Liana Nevitt had inserted by Dr. Cole on July 9, 1990. She subsequently had the implants removed and claims to continue to suffer from silicone adenopathy as a result of a silicone gel "bleed" from the implants.
Plaintiffs' claims stem from an informational letter Liana Nevitt received prior to her surgery. The letter read, in relevant part:
"Q. How long will the mammary prosthesis last?
Based on laboratory findings together with human experience to date, one would expect the prosthetic material to last for a natural life time. But any man-made device can fail and require replacement." (Def. Mot. Summ. J. Exh.).
Plaintiffs allege the above representation is fraudulent because Dr. Cole had information that the implants could be expected to fail at any time. (Pltf. Compl. ¶¶ 12-18).
DISCUSSION
Defendants' Motion for Summary Judgment
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see. Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir. 1988). The party moving for summary judgment bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
However, the moving party's burden may be discharged by demonstrating that there is an absence of evidence to support an essential element of the nonmoving party's case for which he or she has the burden of proof. Celotex Corp., 477 U.S. at 323. Once the moving party demonstrates this lack of evidence, the burden passes to the nonmoving party to establish, after an adequate opportunity for discovery, the existence of a disputed factual element essential to his or her case with respect to which he or she bears the burden of proof. Id. If the record taken as a whole could not lead the trier of fact to find for the nonmoving party, the motion for summary judgment should be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Defendants first argue that plaintiffs' claims against them, although posited as fraudulent misrepresentation, are in reality grounded in medical malpractice, the statute of limitations for which expired several years before plaintiffs filed their Complaint. They further argue the expert testimony required for medical malpractice claims in Kentucky has not been provided. As we will grant defendants summary judgment on plaintiffs' claims as presented in their Complaint, we need not determine their true nature.
Kentucky common law recognizes six elements for the tort of fraudulent misrepresentation: "(1) that defendant made a material misrepresentation; (2) that it was false; (3) that when he made it he knew it was false, or made it recklessly without any knowledge if its truth and as a positive assertion; (4) that he made it with the intention of inducing plaintiff to act, or that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that plaintiff thereby suffered injury."Clark v. Danek Medical, Inc., 64 F. Supp.2d 652, 655 (W.D.Ky. 1999) (quoting Crescent Grocery Co. v. Vick, 240 S.W. 388, 389 (Ky. 1922)). Defendants assert they are entitled to summary judgment because the allegedly fraudulent statement that "one would expect the prosthetic material to last for a natural life time" is clearly qualified by the following statement that "any man-made device can fail and require replacement." Thus, plaintiffs could not have reasonably relied on the allegedly fraudulent statement. We agree. "The very essence of actionable fraud or deceit is the belief in and reliance upon the statements of the party who seeks to perpetrate the fraud. Where the plaintiff does not believe the statements or where he has knowledge to the contrary recovery is denied." Wilson v. Henry, 340 S.W.2d 449, 451 (Ky. 1960) (emphasis added). Here Liana Nevitt was informed of the risk that her implants could fail and need to be replaced, which is apparently what occurred. In the face of this warning, she cannot reasonably claim that, based the letter's preceding statement, she believed her implants would last for her life time. Accordingly, defendants' Motion for Summary Judgment will be granted.
Further, it is not entirely clear that the allegedly fraudulent statement conveys the implants would last a lifetime as the phrase "one would expect" is not exactly unequivocal. However, viewing the facts in a light most favorable to plaintiffs, we will assume they were justified in their interpretation.
Defendants' Motion to Dismiss
As we will grant defendants' Motion for Summary Judgment, their Motion to Dismiss will be denied as moot. Their corresponding Motion for Sanctions in the form of reasonable expenses incurred in filing their Motion to Dismiss will also be denied as moot.
CONCLUSION
Because plaintiffs cannot establish reasonable reliance on defendants' allegedly fraudulent misrepresentation, defendants' Motion for Summary Judgment will be granted. Their Motion to Dismiss and/or for Sanctions will be denied as moot.
ORDER
For the reasons set forth in the memorandum opinion entered this date and the court being otherwise sufficiently advised, IT IS HEREBY ORDERED AND ADJUDGED that the motion of defendants Norman M. Cole, M.D. and Norman M. Cole, M.D., P.S.C. for summary judgment is GRANTED and plaintiffs' claims against them are DISMISSED WITH PREJUDICE. . Defendants' Motion to Dismiss and/or for Sanctions is DENIED AS MOOT.