United States District Court, D. New Hampshire
B. MOCAFFERTY UNITED STATES DISTRICT JUDGE
Shumaker 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 breach of warranty claims.
Shumaker'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. His case was selected in the MDL proceeding
for the Initial Discovery Pool, making it a bellwether case.
Atrium and Maquet move to dismiss Shumaker's claims on
the grounds that they are barred by the statute of
limitations and that he has not stated an actionable claim
for relief under Kansas law, which they contend applies to
Shumaker's claims. Shumaker objects, arguing that the
discovery rule and other equitable tolling doctrines apply to
make his claims timely. He also challenges defendants'
choice of law analysis and argues that his claims are
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).
Shumaker is now a resident of Alabama, at the time of the
surgical procedures at issue in this case, he lived in
Kansas. He had a surgical procedure to repair abdominal wall
hernias in May 2010 at a hospital in Shawnee Mission, Kansas.
His physician implanted a piece of C-QUR V Patch mesh, which
defendants manufactured and sold to his physician, for the
2014, Shumaker had another surgical procedure because his
hernia had reoccurred. During that procedure, his physician
found that the mesh patch had come off the abdominal wall,
formed into a ball, and was covered with pus. That procedure
was done in Kansas City, Missouri.
which designed, marketed, and sold the C-QUR V Patch mesh
that was implanted into Shumaker, is located in New
Hampshire. Maquet is located in New Jersey, and Getinge is a
Swedish corporation. Shumaker 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 defendants designed,
manufactured, marketed, and sold C-QUR mesh to be used by
surgeons for hernia repair. C-QUR mesh was intended to be
permanently implanted for those repairs, and defendants
represented that C-QUR mesh was safe and effective for that
purpose. Shumaker further alleges that C-QUR mesh was not
safe or effective for its intended purpose, that defendants
failed to adequately research and test it to determine the
risks and benefits of the mesh, and that they failed to warn
of risks although they had been notified that the mesh was
causing widespread catastrophic complications. He alleges
claims of negligence (Count I); product liability under the
Kansas Product Liability Act (Count II); strict liability -
design defect (Count III); strict liability - manufacturing
defect (Count IV); strict liability - failure to warn (Count
V); breach of express warranty (Count VI); breach of implied
warranties of merchantability and fitness of purpose (Count
VII); and punitive damages (Count VIII).
Atrium and Maquet move to dismiss all of Shumaker's
claims as time-barred under the applicable New Hampshire
statutes of limitations. They also argue that Kansas law
governs the liability portions of Shumaker's claims and
that: (1) Counts I and III-VII fail to state claims for
relief; (2) Count II, alleging joint and several liability,
is not viable; and (3) Count VIII for punitive damages is not
an actionable claim. Shumaker objects, arguing that his
claims are not time-barred, that New Hampshire law governs
the liability portions of his claims, and that Count VIII is
seeking a special category of damages and should proceed as a
Statute of Limitations
parties agree that New Hampshire's statutes of
limitations, as procedural rules of the forum state, apply in
this case. See TIG Ins. Co. v. EIFlow Ins.
Ltd., No. 14-cv-459-JL, 2015 WL 5714686, at *3 (D.N.H.
Sept. 29, 2015) (discussing circumstances under which it is
appropriate for this court sitting in diversity to apply New
Hampshire's statute of limitations). They further agree
that Shumaker's product liability claims, Counts I
through V, are governed by RSA 508:4, I, and the breach of
warranty claims, Counts VI and VII, are governed by RSA
Product Liability Claims
New Hampshire law, “[e]xcept as otherwise provided by
law, all personal actions, . . . may be brought only within 3
years of the act ...