United States District Court, D. New Hampshire
Crystal D. Sargent
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
Landry. McCafferty United State District Judge
Sargent 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.
Sargent’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. Sargent 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).
lived in Alabama during the events at issue in this case, and
still lives there. Sargent had surgery on July 23, 2012, at
University of South Alabama Medical Center in Mobile,
Alabama, to repair a ventral hernia. Sargent’s
physicians used a piece of C-QUR mesh to repair the hernia.
On April 14, 2014, Sargent went back to the Medical Center
because her hernia had recurred. She underwent another
surgery to repair the hernia. During the operation it was
found that omentum and bowel were adhesed to Sargent’s
mesh, which also had significant scar tissue.
which designed, marketed, and sold the C-QUR mesh that was
implanted into Sargent, is located in New Hampshire. Maquet
is located in New Jersey, and Getinge is a Swedish
corporation. Sargent 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.
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. She 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. Sargent 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 punitive damages (Count VII).
Atrium and Maquet move to dismiss Sargent’s claims,
contending that they are barred by the applicable statutes of
limitations, that Alabama law applies to liability, and that
the strict liability claims (Counts II-IV) are not cognizable
under Alabama law. Defendants also contend that
Sargent’s claim for punitive damages must be dismissed
because it does not state a cause of action. Sargent objects,
arguing that her claims are not time-barred, that New
Hampshire law applies to her claims, and that her claims are
Statute of Limitations
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 Sargent’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
Product Liability Claims
New Hampshire law, “[e]xcept as otherwise provided by
law, all personal actions, . . . may be brought only within 3
years of the act ...