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Barron v. Atrium Medical Corp.

United States District Court, D. New Hampshire

September 5, 2019

Carrie Lee Barron and Nicholas Barron
v.
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)

          ORDER

          Landya B. McCafferty, United States District Judge.

         Carrie Lee and Nicholas Barron 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, and a claim for loss of consortium. 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.

         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 plaintiffs favor, and "determine whether the factual allegations in the plaintiffs 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

         Carrie Lee Barron had a surgical procedure on November 4, 2014, to repair an umbilical hernia. Her physicians used a piece of C-QUR V Patch mesh to repair the hernia. The procedure was done at the University of Pittsburgh Medical Center in Cranberry Township, Pennsylvania. On December 5, 2016, Barron underwent another procedure because of a recurrence of the hernia, when infected mesh was removed from the site of her previous repair.

         Atrium, which designed, marketed, and sold the C-QUR V Patch mesh that was implanted into Carrie Lee, 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), punitive damages (Count VII), and loss of consortium (Count VIII).

         DISCUSSION

         Defendants Atrium and Maquet contend that Pennsylvania law governs the liability portion of plaintiffs' claims and that the claims fail under the applicable law. Plaintiffs object, arguing that a choice of law is premature and that, other than as to certain claims, defendants have not sufficiently identified a conflict that requires a choice-of-law analysis. They further contend that if the court engaged in a choice-of-law analysis, New Hampshire law governs.

         I. Choice of Law

         As a preliminary matter, plaintiffs argue that a choice of law is premature at this stage of the litigation. They cite cases where courts have found that discovery or development of the record was necessary to resolve the issue of a choice of law. Plaintiffs, however, do not identify any missing information that would be necessary for a choice-of-law determination here or show that this case is not sufficiently developed to address the issue. Therefore, plaintiffs have not shown that a choice-of-law determination is premature, and the court employs the analysis.

         The parties agree that New Hampshire choice-of-law principles govern in this bellwether case. See, e.g.. Lexington Ins. Co. v. Gen. Ace. Ins. Co. of Am.. 338 F.3d 42, 46 (1st Cir. 2003) (noting that in "determining what state law is relevant, a federal court must apply the choice-of-law framework of the forum state"). "Under New Hampshire choice-of-law principles, when more than one state may have an interest in the suit and the choice involves substantive law, the court must first decide whether relevant New Hampshire law actually conflicts with the laws of the other interested states." SIG Arms Inc. v. Emp'rs Ins. of Wausau, 122 F.Supp.2d 255, 258-59 (D.N.H. 2000). An actual conflict exists only when application of the laws of an interested state other than the forum would change the outcome. Lambert v. Kysar, 983 F.2d 1110, 1114 (1st Cir. 1993). When no actual conflict is shown, the court will apply the law of the forum state which, in this case, is New Hampshire. Aftokinito Props, Inc. v. Millbrook Ventures, LLC, No. 09-cv-415-JD, 2010 WL 3168295, at *3 (D.N.H. Aug. 9, 2010). The party who asserts that the law of another state is different from the law of the forum state bears the burden of proving the content of the foreign law. SIG Arms, 122 F.Supp.2d at 259.

         A. Ac ...


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