United States District Court, D. New Hampshire
B. MCCAFFERTY, UNITED STATES DISTRICT JUDGE
and Andrew Caldwell bring 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 a claim for violation of
consumer protection laws. Plaintiffs’ 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. Plaintiffs object.
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).
Caldwell had a surgical procedure at Saint Joseph’s
Candler Health System in Savannah, Georgia, on April 19,
2012, to remove a previously placed piece of mesh and to
repair her hernia with a piece of C-QUR mesh. She continued
to have drainage from the surgical site and was admitted to
the hospital on May 10, 2012, because of a post-operative
abscess of her anterior abdominal wall. She continued to have
problems with the hernia and mesh site. On July 24, 2015,
Caldwell had surgery to remove the mesh and repair the
which designed, marketed, and sold the C-QUR V Patch mesh
that was implanted into Caldwell, is located in New
Hampshire. Maquet is located in New Jersey, and Getinge is a
Swedish corporation. Plaintiffs allege 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.
allege, 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. Plaintiffs further allege 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. They allege
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). They seek compensatory damages,
enhanced damages, and damages for loss of consortium.
Atrium and Maquet move to dismiss plaintiffs’ breach of
warranty claims as time-barred. They also argue that Georgia
law governs the liability portions of plaintiffs’
claims and that under Georgia law the breach of warranty
claims and consumer protection law claims must be dismissed.
Plaintiffs object, arguing that their breach of warranty
claims are not time-barred, that New Hampshire law applies to
their claims, and that their claims are adequately pleaded.
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 plaintiffs’ breach of warranty claims,
Counts V and VI, are governed by RSA 382-A:2-725.
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). 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)).
assert that the breach of warranty claims accrued when the
mesh product was implanted in April 2012, which is more than
four years before plaintiffs brought suit in January 2017.
Plaintiffs contend 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. In their reply,
defendants argue that the future performance extension does
not apply because no such explicit warranty was made and that
the future performance extension does not apply to breach of
implied warranty claims.
stated above, the discovery rule for future performance does
not apply to breach of implied warranty claims. Nor does
equitable tolling or fraudulent concealment. Therefore,
plaintiffs’ claim for breach of implied warranties,
Count VI, accrued in April 2012, when the mesh was implanted.