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Badry v. Atrium Medical Corp.

United States District Court, D. New Hampshire

September 19, 2019

Andja Badry
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

         Andja Badry 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. Badry’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] Badry objects.

         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 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).

         BACKGROUND

         In October 2015, Badry, a Louisiana resident, underwent a repair procedure for an umbilical hernia in a Louisiana hospital. Her physician used C-QUR mesh for the repair. Three weeks later, Badry was seen in the emergency room at University Medical Center because of chills and severe abdominal pain. A CT scan showed that Badry had a seroma in the area of the hernia repair and a procedure was scheduled to open the area, drain fluid, and remove the mesh. The procedure was delayed because of nature of the fluid in the area. Badry continued to receive treatment over the next four months for fluid drainage from the hernia repair site and other issues. The mesh was removed in March 2016, and the area then healed without further drainage or other problems.

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

         Badry 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. Badry 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. Badry 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 damages.

         DISCUSSION

         Defendants Atrium and Maquet contend that Louisiana law governs the liability portion of Badry’s claims and that all of her claims fail under the applicable law. Badry objects, arguing that New Hampshire law applies to her claims and that her claims are sufficiently pleaded.[2]

         I. Choice of Law

         The parties agree that New Hampshire choice-of-law principles govern the choice of law in this bellwether case. See, e.g., Lexington Ins. Co. v. Gen. Acc. 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. Actual Conflict

         Both New Hampshire, where Atrium manufactured the allegedly defective mesh products, and Louisiana, where the mesh was implanted, are interested states. Defendants assert that an actual conflict exists between the laws of New Hampshire and Louisiana because Louisiana has consolidated all product liability claims under the Louisiana Product Liability Act (“LPLA”), La. Rev. Stat. Ann. § 9:2800.52 et seq. In addition, they contend that strict liability claims and breach of implied warranty claims are not recognized under the LPLA. In contrast, product liability in New Hampshire is governed by common law, which allows claims under a variety of theories, including strict liability and breach of implied warranty. SeeShort v. Amerada Hess Corp., No. 16-cv-204-JL, 2019 WL 1430106, at *15 (D.N.H. Mar. 29, 2019). Badry contends that she can pursue her strict product liability claims under Louisiana law and, therefore, defendants fail to ...


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