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Norris v. Atrium Medical Corp.

United States District Court, D. New Hampshire

September 19, 2019

Christopher Norris
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

         Christopher Norris 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. Norris’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] Norris 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

         Norris lived in Texas during the events at issue in this case and still lives there. On February 25, 2010, Norris had a laparoscopic repair of a left inguinal hernia at Grace Medical Center in Lubbock, Texas. A piece of C-QUR Edge mesh was used for the repair. In January 2016, Norris had another procedure to repair a right inguinal hernia. During that procedure, his surgeon found that the left hernia site and the mesh were infected.

         Atrium, which designed, marketed, and sold the C-QUR mesh that was implanted into Norris, is located in New Hampshire. Maquet is located in New Jersey, and Getinge is a Swedish corporation. Norris alleges that Maquet and Getinge are responsible for defendants’ actions and exercised control over Atrium with respect to oversight and compliance with applicable safety standards.

         Norris 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. He 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. Norris 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).

         DISCUSSION

         Defendants Atrium and Maquet move to dismiss Norris’s claims, contending that the breach of warranty claims are barred by the applicable statute of limitations, that Texas law governs the liability portion of all of the claims, and that none of the claims is cognizable under Texas law. Defendants also contend that the claim for punitive damages must be dismissed because it does not state a cause of action. Norris objects, arguing that a choice of law is premature, that his breach of warranty claims are not-time barred, 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). Norris alleges both breach of express warranty (Count V) and breach of implied warranties (Count VI) claims. The parties agree that RSA 382-A:2-725 provides the applicable statute of limitations for the breach of warranty claims.

         RSA 382-A:2-725(1) provides that “[a]n action for breach of any contract for sale must be commenced within four years after the cause of action has accrued.” “A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach.” RSA 382-A:2-725(2). “A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.” Id. The discovery rule for future performance does not apply to implied warranties. Kelleher v. Marvin Lumber & Cedar Co., 152 N.H. 813, 853 (2005). Similarly, while equitable tolling and the fraudulent concealment rule may extend the limitation period for purposes of a claim of breach of an express warranty, they do not apply to breach of implied warranties claims. Begley v. Windsor Surry Co., Civ. No. 17-cv-317-LM, 2018 WL 1401796, at *8 (D.N.H. Mar. 19, 2018) (relying on Lockheed Martin Corp. v. RFI Supply, Inc. 440 F.3d 549, 556-57 (1st Cir. 2006)).

         Defendants assert that Norris’s breach of warranty claims accrued when the mesh product was implanted in February 2010, which is nearly eight years before he brought suit in January 2018. Norris contends that defendants’ warranties extended to future performance of the mesh and, therefore, the accrual date is extended to when the breach of warranty was discovered or should have been discovered. He further contends that he could not have been aware of the defects in the mesh until after his second surgery in January 2016, which is less than four years before he brought suit. In their reply, defendants argue that the future ...


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