United States District Court, D. New Hampshire
McCafferty, United States District Judge
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.
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).
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.
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.
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.
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.
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
Choice of Law
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.
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
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.
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
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., ...