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Hicks v. Atrium Medical Corporation

United States District Court, D. New Hampshire

August 22, 2019

Daniel Hicks and Sandra Hicks
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



         Daniel and Sandra Hicks bring 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, violation of consumer protection laws, and a loss of consortium claim. This 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. This case was selected in the MDL proceeding for the Initial Discovery Pool, making it a bellwether case. Defendants Atrium and Maquet move to dismiss plaintiffs' claims on a variety of grounds.[1] Plaintiffs object.


         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).


         Plaintiffs Daniel and Sandra Hicks are residents of Florida. In January 2012, Daniel had a surgical procedure in which his physician implanted C-QUR mesh to repair a hernia.[2] In February 2015, Daniel consulted with a doctor in Brandon, Florida, because of epigastric pain and nausea. He then had further symptoms. On March 13, 2015, he underwent a diagnostic laparotomy procedure at Brandon Regional Hospital in Brandon, Florida, during which the mesh was removed, and other procedures were done, including resection of the small bowel.

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

         Plaintiffs allege, 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. They further allege 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. Plaintiffs bring 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), violation of consumer protection laws (Count VII), and loss of consortium (Count VIII). They seek compensatory and enhanced compensatory damages.


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

         I. Statute of Limitations

         Defendants contend that plaintiffs' breach of warranties claims, Counts V and VI, are barred by the statute of limitations. The parties agree that New Hampshire's statute of limitations, as a procedural rule of the forum state, apply in this case. See TIG Ins. Co. v. EI Flow 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 the breach of warranties claims are governed by RSA 382-A:2-725.

         RSA 382-A:2-725(1) states that “[a]n action for breach of any contract for sale must be commenced within four years after the cause of action has accrued.” “A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach.” RSA 382-A:2-725(2). “A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.” Id.

         The discovery rule for future performance does not apply to implied warranties. Kelleher v. Marvin Lumber & Cedar Co., 152 N.H. 813, 853 (2005). In addition, while equitable tolling and the fraudulent concealment rule may extend the limitation period for purposes of a claim of breach of an express warranty, they do not apply to breach of implied warranties claims. Begley v. Windsor Surry Co., Civ. No. 17-cv-317-LM, 2018 WL 1401796, at *8 ...

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