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Hickinbottom v. Atrium Medical Corp.

United States District Court, D. New Hampshire

August 28, 2019

Juanita Hickinbottom
v.
Atrium Medical Corp., et al. In re: Atrium Medical Corp. C-QUR Mesh Products Liability Litigation Opinion No. 2019 DNH 138

          ORDER

          LANDYA B. McCAFFERTY UNITED STATES DISTRICT JUDGE.

         Juanita Hickinbottom 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. Hickinbottom'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 Hickinbottom's claims on a variety of grounds.[1] Hickinbottom 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

         Hickinbottom had a laparoscopic procedure to repair a hernia on August 15, 2013 at Baptist Memorial Hospital (“Baptist Memorial”) in Oxford, Mississippi. A piece of C-QUR Mosaic mesh was used for the repair. Because of abdominal pain, she had “revisional surgery” on October 17, 2013 at Baptist Memorial, during which stitches were removed, abdominal wall scarring was noted, and the wounds were irrigated.

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

         Hickinbottom 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. Hickinbottom 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. Hickinbottom 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 compensatory damages.

         DISCUSSION

         Defendants Atrium and Maquet move to dismiss Hickinbottom's claims, other than the violation of consumer protection laws claim in Count VII, as time-barred under the applicable statutes of limitations.[2] They also argue that Mississippi law governs the liability portions of Hickinbottom's claims and that her claims fail under the applicable law. Hickinbottom objects, arguing that her claims are not time-barred, and that New Hampshire law governs the liability portions of her claims.

         I. Statute of Limitations

         The 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 Hickinbottom's product liability claims, Counts I through IV, are governed by RSA 508:4, I, and the breach of warranty claims, Counts V and VI, are governed by RSA 382-A:2-725.

         A. Product Liability Claims

         Under New Hampshire law, “[e]xcept as otherwise provided by law, all personal actions, . . . may be brought only within 3 years of the act or omission complained of.” ...


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