United States District Court, D. New Hampshire
B. McCAFFERTY UNITED STATES DISTRICT JUDGE.
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. Hickinbottom 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).
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
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.
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.
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. 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.
Statute of Limitations
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
Product Liability Claims
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.” ...