United States District Court, D. New Hampshire
B. McCafferty United States District Judge
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. Norris 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 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.
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
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).
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
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). 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.
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.
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 ...