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Pigulski v. Johnson & Johnson, Inc.

United States District Court, D. New Hampshire

June 24, 2019

Ann Pigulski
v.
Johnson & Johnson, Inc. and Ethicon, Inc.

          ORDER

          Landya McCafferty, United States District Judge

         Ann Pigulski brings this product liability action against Johnson & Johnson, Inc. and its subsidiary, Ethicon, Inc., alleging claims for injuries caused by defendants' pelvic mesh products. Pigulski asserts thirteen claims based on various theories of liability. Defendants move to dismiss eight of Pigulski's claims. Pigulski objects.

         STANDARD OF REVIEW

         Under Rule 12(b)(6), the court must accept the factual allegations in the complaint as true, draw all reasonable inferences from those facts in the plaintiff's favor, and “determine whether the factual allegations in the plaintiff's complaint set forth ‘a plausible claim upon which relief may be granted.'” Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71, 75 (1st Cir. 2014) (quotation omitted). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         BACKGROUND

         Pigulski alleges that she was diagnosed with stress urinary incontinence. In June 2010, she underwent a surgical repair procedure that used a GYNECARE TVT Retropubic System Tension-Free vaginal tape sling, a device containing mesh products that defendants manufactured and sold. Pigulski had a second surgical procedure in November 2015 to remove and revise the sling. She had a third surgery in September 2017 because the mesh had eroded.

         Pigulski alleges that defendants market their mesh products to the medical community and directly to patients as safe and reliable medical devices. She states that defendants have marketing campaigns and strategies aimed at health care providers and also have direct consumer marketing to get consumers to seek out their products. She further alleges that defendants concealed and misrepresented the risks, dangers, and defects of their products, which caused serious medical problems for patients, including her. She lists fifteen defects in the products and twenty-one risks and complications that caused the products to be defective.

         In short, Pigulski alleges that defendants' products, including those used in her surgeries, were unsafe and that defendants knew they were unsafe. She also alleges that if she had known of the dangers and risks, she would not have used the products for her surgery.

         Pigulski brings thirteen counts in the following order: (1) Negligence; (2) Strict Liability, Manufacturing Defect; (3) Strict Liability, Failure to Warn; (4) Strict Liability, Defective Product; (5) Strict Liability, Design Defect; (6) Negligent Misrepresentation; (7) Negligent Infliction of Emotional Distress; (8) Breach of Express Warranty; (9) Violation of the New Hampshire Consumer Protection Act (“CPA”), RSA 358-A; (10) Gross Negligence; (11) Unjust Enrichment; (12) Discovery Rule and Tolling; and (13) Breach of Implied Warranty.[1]

         DISCUSSION

         Defendants move to dismiss Counts I, IV, VI, VII, VIII, IX, X, and XIII. In support, they argue that: (1) the claims are not actionable under New Hampshire law, which law applies to all claims; and (2) the claims are duplicative. Pigulski disputes both arguments.

         I. Choice of Law

         As a preliminary matter, defendants raise a choice-of-law issue, arguing that New Hampshire law governs Pigulski's “substantive claims.” Defendants note that Pigulski specifically references New Hampshire law in the allegations in support of Count IV, see doc. no. 1 at ¶ 109, and brings a claim under the New Hampshire CPA, RSA 358-A, see Id. at ¶¶ 147-165. In addition, defendants argue that the facts alleged in the complaint support application of New Hampshire substantive law under a choice-of-law analysis. Despite their arguments, however, defendants state in a footnote that they reserve “the right to assert the application of another state's law to certain of Plaintiff's claims, such as application of New Jersey law . . . .” Doc. no. 13-1 at 5 n.4.

         In her objection, Pigulski states: “For purposes of this motion and opposition only, Plaintiff will assume that New Hampshire law applies.” Doc. no. 15 at 6. Pigulski states that she “reserves the right to assert the application of another state's law at a later time.” Id.

         Contrary to the parties' theories, the court will not proceed under New Hampshire law at this stage of the case only to potentially change course and apply the law of another state at a later time. In certain circumstances, such as when the facts alleged are complex or the governing law likely depends on discovery, it may be premature for the court to determine the governing law at the motion to dismiss stage. See, e.g., Picone v. Shire PLC, No. 16-CV-12396-ADB, 2017 WL 4873506, at *15 (D. Mass. Oct. 20, 2017) (declining to engage in choice-of-law analysis in light of “the complex nature of the facts alleged, including the nature of the purported unlawful conduct and resulting harm”). Here, however, those circumstances do not exist.

         Pigulski makes no argument that the law of any other state governs her claims and, indeed, specifically references New Hampshire law in her allegations in support of two of her claims. Defendants only mention New Jersey as an example with no developed argument to support applying that state's law. Because the parties do not appear to disagree, and because the outcome of the court's choice-of-law analysis does not depend on further factual development that could come to light through discovery, the choice-of-law question will be decided now, and, once decided, will become law of the case. See Nahass v. Harrison, 207 F.Supp.3d 96, 102 (D. Mass. 2016) (engaging in choice-of-law analysis at the motion to dismiss stage); Adams v. Rubin, 964 F.Supp. 507, 508-09 (D. Me. 1997) (finding choice- of-law analysis appropriate at motion to dismiss stage because it was determinative of whether plaintiffs could pursue their claims).

         When, as here, jurisdiction in a federal court is based on diversity of citizenship, courts apply the choice-of-law rules of the forum state, which is New Hampshire. Klaxon v. Stentor Elec. Mfg. Co.,313 U.S. 487, 496 (1941). If another state has substantial interests in the litigation and its substantive law conflicts with New Hampshire law, the court must apply a five-factor test to determine which state's law governs the claims. Gen. Star Indem. Co. v. Beck, No. 18-cv-108-JD, 2018 WL 3849877, at *2 & n.6 (D.N.H. Aug. 13, 2018). If no conflict is identified, then the forum state's law applies. Reicher v. Berkshire Life Ins. Co. of Am.,360 F.3d 1, 4 (1st Cir. 2004); Valle v. Powertech Indus. Co. Ltd., ...


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