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Blackwood v. Atrium Medical Corp.

United States District Court, D. New Hampshire

August 12, 2019

Felicia Blackwood
v.
Atrium Medical Corporation, Maquet Cardiovascular U.S. Sales, LLC, and Getinge AB In re Atrium Medical Corp. C-QUR Mesh Products Liability Litigation (MDL No. 2753)

         Opinion No. 2019 DNH 128

          ORDER

          Landya B. McCafferty United States District Judge

         Felicia Blackwood brings suit against Atrium Medical Corporation (“Atrium”), a medical device company that manufactured and sold C-QUR Mesh, and two related companies, Maquet Cardiovascular U.S. Sales, LLC (“Maquet”) and Getinge AB (“Getinge”), alleging product liability claims and violation of consumer protection laws. Blackwood's suit is part of a multi-district litigation (“MDL”) proceeding involving claims that C-QUR Mesh was, among other things, defective and unreasonably dangerous and caused injury when surgically implanted for hernia repair. Her case was selected in the MDL proceeding for the Initial Discovery Pool, making it a bellwether case.

         Defendants Atrium and Maquet move to dismiss certain of Blackwood's claims asserted in her second amended complaint on the grounds that they are barred by the statute of limitations and that she has not stated an actionable claim for relief.[1] Blackwood objects, arguing that the discovery rule applies to make her claims timely and that she has alleged actionable claims.

         STANDARD OF REVIEW

         Under Rule 12(b)(6), the court must accept the factual allegations in the complaint as true, construe reasonable inferences 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 (1st Cir. 2014) (internal quotation marks 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

         Blackwood had an open umbilical hernia repair on September 27, 2012, in Beaufort, South Carolina. The surgeon used C-QUR V patch mesh, which defendants manufactured and sold to her physicians, for the repair.

         On February 27, 2013, Blackwood was treated at the hospital in Beaufort for abdominal pain, diarrhea, constipation, and reflux. She underwent an upper gastrointestinal endoscopy and a CT scan that showed “tiny recurrent fat-containing periumbilical hernia.” Doc. no. 183 at ¶ 82. Because her symptoms continued, Blackwood had a “revision exploratory laparoscopy” on September 17, 2013, which included removal of the C-QUR V patch mesh. Id. Blackwood alleges that as a result of problems caused by defects in the mesh, as detailed below, she has had chronic infections, peritonitis, abdominal deformity, and nerve damage. She alleges that she cannot exert herself physically without pain.

         Atrium, which designed, marketed, and sold the C-QUR V Patch mesh that was implanted into Blackwood, is located in New Hampshire. Maquet is located in New Jersey, and Getinge is a Swedish corporation. Blackwood alleges that Maquet and Getinge are responsible for Atrium's actions and exercised control over Atrium with respect to oversight and compliance with applicable safety standards.

         Blackwood alleges, among other things, that although Atrium failed to properly research and test the mesh and had been notified that the mesh was causing widespread catastrophic complications, defendants marketed and sold the C-QUR Mesh V Patch as a safe and effective product. She alleges claims for negligence (Count I); strict liability-design defect (Count II); strict liability-manufacturing defect (Count III); strict liability-failure to warn (Count IV); breach of express warranty (Count V); breach of implied warranties of merchantability and fitness of purpose (Count VI); and violation of consumer protection laws (Count VII). She seeks enhanced damages, based on defendants' knowledge of the defects in and risks associated with their products and concealing or failing to disclose those defects and risks.

         DISCUSSION

         Defendants contend that Blackwood's product liability claims, Counts I through IV, and her claim for violation of consumer protection laws, Count VII, are time-barred under New Hampshire's statute of limitation, RSA 508:4, I. Defendants also argue that Count VII should be dismissed for the additional reason that the allegations in support of that count are insufficient to state a plausible claim for relief. Blackwood objects, arguing that the discovery rule extends the time for her to file her claims and that she properly pleaded her consumer protection laws claim.

         I. Statute ...


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