United States District Court, D. New Hampshire
No. 2019 DNH 128
B. McCafferty United States District Judge
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.
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. Blackwood objects, arguing that the
discovery rule applies to make her claims timely and that she
has alleged actionable claims.
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).
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.
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.
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.
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.
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.