United States District Court, D. New Hampshire
B. McCAFFERTY UNITED STATES DISTRICT JUDGE.
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. Vollmar objects.
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).
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
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.
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.
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
Choice of Law
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.
Timeliness of Choice-of-Law Analysis
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. ...