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Vollmar v. Atrium Medical Corporation

United States District Court, D. New Hampshire

August 20, 2019

Amy Vollmar
v.
Atrium Medical Corporation et al. In re Atrium Medical Corp. C-QUR Mesh Products Liability Litigation MDL No. 2753

          ORDER

          LANDYA B. McCAFFERTY UNITED STATES DISTRICT JUDGE.

         Amy Vollmar 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, breach of warranty claims, and violation of consumer protection laws. Vollmar'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 Vollmar's claims on a variety of grounds.[1] Vollmar objects.

         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

         On February 19, 2010, Vollmar had a surgical procedure at St. Luke's Hospital in Maumee, Ohio, for an open repair of an umbilical hernia. A C-QUR Mesh V-Patch was used for the repair. Vollmar returned to St. Luke's Hospital in March 2012, because of recurrent umbilical hernia and pain. Through an incision and use of a camera, doctors discovered that part of the previously implanted mesh had come loose, which required reattachment.

         Atrium, which designed, marketed, and sold the C-QUR mesh that was implanted into Vollmar, is located in New Hampshire. Maquet is located in New Jersey, and Getinge is a Swedish corporation. Vollmar 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.

         Vollmar 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. Vollmar 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. Vollmar brings 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 compensatory and enhanced damages.

         DISCUSSION

         Defendants Atrium and Maquet contend that Ohio law governs the liability portion of Vollmar's claims and that her claims fail under the applicable law. They also argue that her breach of warranties claims (Counts V and VI) are time-barred under the applicable statute of limitations. Vollmar objects, arguing that a choice-of-law analysis is premature, that if a choice-of-law analysis were done New Hampshire law would apply, and that her breach of warranties claims are not time-barred.

         I. Choice of Law

         Defendants contend that Ohio has an interest in the case because Vollmar's alleged injury occurred in Ohio. They further contend that a choice-of-law analysis is necessary because Ohio's product liability law conflicts with New Hampshire's product liability law and that, under New Hampshire's choice-of-law principles, Ohio law governs. Vollmar argues that a choice-of- law analysis is premature because additional factual development is necessary, that defendants have not sufficiently identified an actual conflict, and that if the court engages in a choice-of-law analysis, New Hampshire law governs.

         A. Timeliness of Choice-of-Law Analysis

         Vollmar argues that it is premature for the court to engage in a choice-of-law analysis. She contends that a choice-of-law analysis is “heavily fact dependent” and that because her case involves seven claims which are complex and require discovery, a choice of law cannot be made now. Doc. no. 72 at 4-5. ...


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