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Moore v. Atrium Medical Corp.

United States District Court, D. New Hampshire

September 23, 2019

Tammy Moore
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)



         Tammy Moore 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, breach of warranty claims, and a claim for violation of consumer protection laws. Moore’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] Moore 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).


         Moore lived in Virginia during the events at issue in this case, and still lives there. She had surgery on February 17, 2015, at Stafford Hospital in Fredericksburg, Virginia, to repair a ventral hernia. Moore’s physicians used a piece of C-QUR V-Patch mesh to repair the hernia. On May 19, 2015, Moore went back to Stafford Hospital because her hernia had recurred. She underwent another surgery to repair the hernia, during which the C-QUR mesh was removed. During the operation it was noted that “omental adhesions were taken down revealing the previous mesh mal-positioned and the hernia defect lateral.” Doc. no. 62 at ¶ 84.

         Atrium, which designed, marketed, and sold the C-QUR mesh that was implanted into Moore, is located in New Hampshire. Maquet is located in New Jersey, and Getinge is a Swedish corporation. Moore 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.

         Moore 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. Moore 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. Moore 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 violation of consumer protection laws (Count VII). She seeks compensatory and enhanced damages.


         Defendants Atrium and Maquet contend that Virginia law applies to the liability portion of Moore’s claims and that, under Virginia law, Counts I-IV and VII fail to state a claim for relief. Moore objects, arguing that it is too early for the court to engage in a choice-of-law analysis and that her claims are adequately pleaded.

         I. Choice of Law

         Defendants contend that Virginia has an interest in the case because Moore is a resident of the state and her alleged injury occurred there. They further contend that a choice-of-law analysis is necessary because Virginia’s product liability law conflicts with New Hampshire’s product liability law and that, under New Hampshire’s choice-of-law principles, Virginia law governs. Moore argues that a choice-of-law analysis is premature because additional factual development is necessary and that that if the court engages in a choice-of-law analysis, New Hampshire law governs.

         A. Timing of Choice of Law

         Moore includes with her objection a section titled “Ripeness of Choice of Law Determination.” Doc. no. 68 at 3. She cites cases where courts have found that discovery or development of the record was necessary to resolve the issue of a choice of law. Moore asserts that “case-specific depositions have not yet ...

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