United States District Court, D. New Hampshire
LANDYA. B. McCAFFERTY UNITED STATES DISTRICT JUDGE
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. Plaintiffs object.
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).
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. 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.
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
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.
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.
Statute of Limitations
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(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.
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 ...