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Caldwell v. Atrium Medical Corp.

United States District Court, D. New Hampshire

September 23, 2019

Georgianne Caldwell and Andrew Caldwell
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

         Georgianne 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.[1] Plaintiffs object.

         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

         Georgianne 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 hernia.

         Atrium, 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.

         Plaintiffs 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.

         DISCUSSION

         Defendants 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.

         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 plaintiffs’ breach of warranty claims, Counts V and VI, are governed by RSA 382-A:2-725.

         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). 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 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.

         As 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. Because ...


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