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Petersen v. Atrium Medical Corp.

United States District Court, D. New Hampshire

September 9, 2019

Michael Petersen
Atrium Medical Corporation, et al. In re Atrium Medical Corp. C-QUR Mesh Products Liability Litigation MDL Docket No. 16-md-2753-LM


          Landya B. McCafferty United States District Judge.

         Michael 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.[1] Petersen 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).


         On 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.

         Atrium, 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).


         Atrium 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 time-barred.[2]

         I. Statutes of Limitations

         Atrium 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.

         Alternatively, 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.

         A 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).

         Atrium 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.[3] 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).

         A. Choice-of-Law Analysis

         Atrium 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.[4] 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 governs.[5]

         1. Timeliness of choice-of-law analysis

         Petersen 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.

         In 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 ...

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