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Sargent v. Atrium Medical Corp.

United States District Court, D. New Hampshire

September 19, 2019

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

         Crystal 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.[1] Sargent 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).


         Sargent 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.

         Atrium, 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.

         Sargent 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).


         Defendants 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 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 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 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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