United States District Court, D. New Hampshire
B. McCafferty United States District Judge.
Petersen 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 and breach of warranty claims.
Petersen'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.
Atrium moves to dismiss on a variety of
grounds. Petersen 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).
March 1, 2012, Petersen had hernia repair surgery in
Portland, Maine. A piece of C-QUR mesh was used for the
repair. On September 5, 2013, Petersen had a procedure to
repair the hernia and for abdominal wall reconstruction,
which was also done in Maine.
which designed, marketed, and sold the C-QUR mesh that was
implanted into Petersen, is located in New Hampshire.
Petersen 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. Petersen 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. Petersen
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 punitive damages (Count VII).
moves to dismiss Petersen's claims as time-barred under
both Maine and New Hampshire statutes of limitations. It also
argues that Maine law governs the liability portion of
Petersen's claims and that his strict liability -
manufacturing defect claim and breach of express warranty
claim fail under Maine law even if those claims are not
time-barred. Petersen objects, arguing that New Hampshire law
governs the liability portion of his claims. To the extent he
addresses Atrium's statute-of-limitations arguments, he
argues only that his breach of warranty claims are not
Statutes of Limitations
moves to dismiss Petersen's claims as time-barred,
arguing that Maine's statute of limitations for civil
actions, 14 M.R.S. § 752, applies to all his claims.
Under § 752, a claim must be brought within six years of
when a plaintiff is injured. Although certain Maine courts
have held that for statute-of-limitations purposes, a
plaintiff is injured “when the injury is discovered
rather than when the injury was incurred . . . such cases are
few and are limited to discrete areas.” Erlich v.
Ouellette, Labonte, Roberge & Allen, P.A., 637 F.3d
32, 35 (1st Cir. 2011). Atrium argues that Petersen was
allegedly injured on March 1, 2012, the date of his first
surgery, but did not bring this suit until March 9, 2018,
more than six years later.
Atrium argues that Petersen's claims are untimely under
the applicable New Hampshire statutes of limitation, and that
no tolling doctrine applies to save any of the claims. To the
extent Petersen addresses Atrium's statute-of-limitations
arguments, he contends that the court should apply New
Hampshire's statutes of limitation and that certain of
his claims are not time-barred.
federal court sitting in diversity jurisdiction, as here,
applies the forum state's choice-of-law rules. Klaxon
Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941).
Under New Hampshire law, statutes of limitation are generally
treated as procedural so that New Hampshire courts apply New
Hampshire statutes of limitations if “either party is a
New Hampshire resident or the cause of action arose in this
State” without conducting a choice-of-law analysis.
Waterfield v. Meredith Corp., 161 N.H. 707, 710
(2011). In limited circumstances, however, New Hampshire
courts apply a foreign state's statutes of limitation.
Keeton v. Hustler Magazine, Inc., 131 N.H. 6, 13-14
(1988) (internal quotation marks omitted). These
circumstances include when, after a choice-of-law analysis,
the court determines that another state's substantive law
applies to a plaintiff's claims and one of two specific
exceptions apply. Id. These two exceptions are when
a foreign state's statutes of limitation either
“extinguish a right or are an inherent part of a
statutory scheme creating a right.” Id. at 14
(internal quotation marks and citations omitted).
asserts that the Maine statute of limitations applicable to
product liability claims, § 752, applies here because it
would extinguish Petersen's right to sue on his
claims. Atrium, however, is putting the cart
before the horse. Before considering whether Maine's
statute of limitations would extinguish Petersen's right
to sue on his claims, Atrium must first show that Maine's
substantive law would apply to those claims.
See Keeton, 131 N.H. at 14. Therefore, the
court must first determine whether Maine or New
Hampshire's substantive law applies to Petersen's
claims using New Hampshire's choice-of-law principles.
See Klaxon, 313 U.S. at 496; Lexington
Ins. Co. v. Gen. Acc. Ins. Co. of Am., 338 F.3d 42, 46
(1st Cir. 2003).
contends that Maine has an interest in the case because
Petersen's alleged injury occurred in Maine. It further
contends that Maine's warranty law conflicts with New
Hampshire's warranty law and that, under New
Hampshire's choice-of-law principles, Maine law
governs. Petersen argues that a choice-of-law
analysis is premature because additional factual development
is necessary, that defendants have not sufficiently
identified an actual conflict, and that if the court engages
in a choice-of-law analysis, New Hampshire law
Timeliness of choice-of-law analysis
argues that it is premature for the court to engage in a
choice-of-law analysis. He contends that a choice-of-law
analysis is “heavily fact dependent” and that
because his case involves seven claims which are
“complex and require further discovery, ” a
choice of law cannot be made now. Doc. no. 62 at 4, 6.
Petersen states that information about defendants'
liability must be obtained through discovery.
support of his position, Petersen 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 ...