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Croucher v. Atrium Medical Corp.

United States District Court, D. New Hampshire

September 19, 2019

Jeffrey Croucher
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

         Jeffrey Croucher 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 warranty claims, and violation of consumer protection laws. Croucher’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. The 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] Croucher 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

         Croucher had a surgical procedure to repair a hernia on May 6, 2010. The procedure was done at Manchester Memorial Hospital in Manchester, Kentucky. The surgeon used a piece of C-QUR mesh for the repair. In September 2010, Croucher had another procedure to remove the mesh. During the procedure, the surgeon found a large amount of fluid within the abdomen as well as inflammatory adhesions, and the mesh was discolored, bunched, and infected. A different mesh product was used to repair the hernia. Two months later, Croucher had another infection at the mesh site which required another surgery.

         In March 2012, Croucher again had abdominal pain with a swollen area. He had exploratory surgery for a large subcutaneous seroma cavity and evacuation of fluid. He was then treated with antibiotics, pain medication, and IV fluids. Later in March, Croucher had another surgery to evacuate and drain fluid from the seroma. In April, Croucher had further evacuation of fluid and placement of JP drains. He continued to experience problems with fluid collection in the seroma and was seen by physicians because of it. In July 2013, more fluid was drained. In January 2015, Croucher had surgery to remove all mesh and address the chronic infection.

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

         Croucher 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. Croucher 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. Croucher alleges claims of 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). He seeks compensatory and enhanced damages.

         DISCUSSION

         Defendants Atrium and Maquet move to dismiss Croucher’s claims, contending that the product liability and breach of warranty claims, Counts I – VI, are barred by the applicable statute of limitations. They also contend that Kentucky law applies to the liability portion of all of Croucher’s claims, and that some claims are inadequately pleaded under Kentucky law. Croucher objects, arguing that his claims are not time-barred, that New Hampshire law applies, and that his claims are sufficiently pleaded.

         I. Statute of Limitations

         The parties agree that New Hampshire’s statutes of limitations, as procedural rules of the forum state, apply in this case. See TIG Ins. Co. v. EIFlow Ins. Ltd., No. 14-cv-459-JL, 2015 WL 5714686, at *3 (D.N.H. Sept. 29, 2015) (discussing circumstances under which it is appropriate for this court, sitting in diversity, to apply New Hampshire’s statute of limitations). They further agree that Croucher’s product liability claims, Counts I through IV, are governed by RSA 508:4, I, and the breach of warranty claims, Counts V and VI, are governed by RSA 382-A:2-725.

         A. Product Liability Claims

         Under New Hampshire law, “[e]xcept as otherwise provided by law, all personal actions, . . . may be brought only within 3 years of the act ...


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