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Newell v. Atrium Medical Corp.

United States District Court, D. New Hampshire

August 28, 2019

Robert Newell
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



         Robert Newell 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 warranties claims, and violation of consumer protection laws. Newell'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. 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 on a variety of grounds.[1] Newell objects.


         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).


         Newell is a resident of Maine. On May 21, 2015, Newell had a surgical procedure at Bridgton Hospital in Bridgton, Maine, to repair an umbilical hernia. His physician used a piece of C-QUR V-Patch mesh for the procedure. In August 2015, Newell again went to Bridgton Hospital because the surgical wound was severely infected, and an abscess had formed. When the wound was opened, his physician found that a sinus tract had formed to the mesh and that the mesh was only partially incorporated. The mesh was removed.

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

         Newell 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. Newell 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. Newell 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 (Count VI), and violation of consumer protection laws (Count VII). He seeks compensatory and enhanced damages.


         Defendants Atrium and Maquet seek dismissal of Counts V, VI, and VII. They contend that Maine law governs the liability portion of Newell's claims and that his breach of warranties and violation of consumer protection laws claims fail under the applicable law. Newell objects, arguing that it is too early for the court to engage in a choice-of-law analysis, that defendants fail to show an actual conflict with respect to breach of warranty or consumer protection law which would require a choice of law, and that her claims are adequately pleaded.

         I. Choice of Law

         Defendants contend that Maine law has an interest in the case because Newell is a resident of the state and his alleged injury occurred there. They further contend that a choice-of-law analysis is necessary because Maine's warranty and consumer protection law conflicts with New Hampshire's law and that, under New Hampshire's choice-of-law principles, Maine law governs. Newell argues that a choice-of-law analysis is premature because additional factual development is necessary and that, regardless, defendants have not sufficiently identified an actual conflict. He further contends that if the court engages in a choice-of-law analysis, New Hampshire law governs.

         A. Timing of Choice of Law

         Newell argues that a choice-of-law analysis is “heavily fact dependent” and that his complaint does not allege sufficient facts to allow the analysis. He further argues that because his case involves seven complex claims, which require discovery, a choice of law cannot be made now. He states that information about defendants' liability must be obtained through discovery.

         In support of his position, Newell relies on Knightly v. Gula, No. 16-cv-124-AJ, 2016 WL 4401996 (D.N.H. Aug. 18, 2016) and Rivera v. Body Armor Outlet, LLC, No. 17-cv-512-LM, 2018 WL 1732154 (D.N.H. Apr. 10, 2018). In Knightly, the magistrate judge explained that she could not make a determination on one factor of the choice-of-law standard because the complaint was only five pages long and she lacked sufficient information about which state had the most substantial connection to the case. 2016 WL 4401996, at *1 (internal quotation marks and citation omitted). In Rivera, the court explained that the evidence pertaining to whether the plaintiff agreed ...

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