Barron v. Atrium Med. Corp. (In re Atrium Med. Corp.)
| Decision Date | 05 September 2019 |
| Docket Number | Civil No. 17-cv-742-LM |
| Citation | 2019 DNH 145 |
| Parties | Carrie Lee Barron and Nicholas Barron v. Atrium Medical Corporation, Maquet Cardiovascular US Sales, LLC, and Getinge AB In re: Atrium Medical Corp. C-QUR Mesh Products Liability Litigation (MDL No. 2753) |
| Court | U.S. District Court — District of New Hampshire |
Carrie Lee and Nicholas Barron bring suit against Atrium Medical Corporation ("Atrium"), a medical device company that manufactured and sold C-QUR mesh, and two related companies, Maquet Cardiovascular US Sales, LLC ("Maquet") and Getinge AB ("Getinge"), alleging product liability claims, breach of warranty claims, and a claim for loss of consortium. This 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. This case was selected in the MDL proceeding for the Initial Discovery Pool, making it a bellwether case. Defendants Atrium and Maquet move to dismiss plaintiffs' claims on a variety of grounds.1 Plaintiffs object.
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).
Carrie Lee Barron had a surgical procedure on November 4, 2014, to repair an umbilical hernia. Her physicians used a piece of C-QUR V Patch mesh to repair the hernia. The procedure was done at the University of Pittsburgh Medical Center in Cranberry Township, Pennsylvania. On December 5, 2016, Barron underwent another procedure because of a recurrence of the hernia, when infected mesh was removed from the site of her previous repair.
Atrium, which designed, marketed, and sold the C-QUR V Patch mesh that was implanted into Carrie Lee, 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 wassafe and effective for that purpose. They 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. Plaintiffs bring claims for 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), punitive damages (Count VII), and loss of consortium (Count VIII).
Defendants Atrium and Maquet contend that Pennsylvania law governs the liability portion of plaintiffs' claims and that the claims fail under the applicable law. Plaintiffs object, arguing that a choice of law is premature and that, other than as to certain claims, defendants have not sufficiently identified a conflict that requires a choice-of-law analysis. They further contend that if the court engaged in a choice-of-law analysis, New Hampshire law governs.
As a preliminary matter, plaintiffs argue that a choice of law is premature at this stage of the litigation. They cite cases where courts have found that discovery or development of the record was necessary to resolve the issue of a choice of law. Plaintiffs, however, do not identify any missing information that would be necessary for a choice-of-law determination here or show that this case is not sufficiently developed to address the issue. Therefore, plaintiffs have not shown that a choice-of-law determination is premature, and the court employs the analysis.
The parties agree that New Hampshire choice-of-law principles govern in this bellwether case. See, e.g., Lexington Ins. Co. v. Gen. Acc. Ins. Co. of Am., 338 F.3d 42, 46 (1st Cir. 2003) (). "Under New Hampshire choice-of-law principles, when more than one state may have an interest in the suit and the choice involves substantive law, the court must first decide whether relevant New Hampshire law actually conflicts with the laws of the other interested states." SIG Arms Inc. v. Emp'rs Ins. of Wausau, 122 F. Supp. 2d 255, 258-59 (D.N.H. 2000). An actual conflict exists only when application of the laws of an interested state other than the forum would change the outcome. Lambert v. Kysar, 983 F.2d 1110, 1114 (1st Cir. 1993). When no actual conflict is shown, the court will apply the law of the forum state which, in this case, is New Hampshire. Aftokinito Props, Inc. v. Millbrook Ventures, LLC, No. 09-cv-415-JD, 2010 WL 3168295, at *3 (D.N.H. Aug. 9, 2010). The party who asserts that the law of another state is different from the law of the forum state bears the burden of proving the content of the foreign law. SIG Arms, 122 F. Supp. 2d at 259.
Both New Hampshire, where Atrium manufactured the allegedly defective mesh products, and Pennsylvania, where the mesh was implanted, are interested states.2 Defendants assert that an actual conflict exists between the laws of New Hampshire and Pennsylvania with respect to plaintiffs' strict liability claims, Counts II-IV, because Pennsylvania does not recognize strict product liability for manufacturers or sellers of prescription medical implants,such as the C-QUR mesh at issue in this case. They also assert that, unlike New Hampshire, Pennsylvania does not recognize a claim for breach of the implied warranties of merchantability and fitness of purpose.
Plaintiffs concede that there is an actual conflict between New Hampshire and Pennsylvania law with regard to their breach of implied warranties claim. With respect to their strict liability claims, however, plaintiffs note that "there is a split among federal district courts applying Pennsylvania law as to whether strict liability is an available cause of action against the manufacturer of a medical device." Atkinson v. Ethicon, Inc., No. 13-697, 2019 WL 3037304, at *5 (W.D. Pa. July 11, 2019). To the extent the cause of action is recognized, however, it is limited to manufacturing defects. Id.
Plaintiffs also argue that defendants fail to identify any other actual conflict between New Hampshire and Pennsylvania law with regard to their remaining claims. They note that in the absence of such a showing with respect to each claim, as required by the doctrine of dépeçage, New Hampshire law applies.
In their reply, defendants argue that the court should not apply the doctrine of dépeçage here because the "issues before the court are inextricably intertwined . . . given the common nucleus of facts that form the basis of" plaintiffs' claims. Doc. no. 72 at 3. They also contend that, regardless, Pennsylvania law actually conflicts with New Hampshire law with regard to plaintiffs' remaining claims. Specifically, they assert that under Pennsylvania law, a plaintiff must plead and prove that a feasible alternative design exists in order to maintain a negligent design defect claim while New Hampshire does not recognize that rule.
The court agrees with plaintiffs that dépeçage requires the court in the context of this case to consider the choice-of-law question as to each claim. First, defendants' argument that a courtshould not apply dépeçage when the claims are "inextricably intertwined" is based on a case from the Eastern District of Wisconsin. See Stupak v. Hoffman-La Roche, Inc., 287 F. Supp. 2d 968, 971-72 (E.D. Wis. 2003) (citing Boomsma v. Star Transp., Inc., 202 F. Supp. 2d 869, 878 (E.D. Wis. 2002)). A recent case in that district suggests that the "inextricably intertwined" principle may not be a correct statement of the law. See PCM Salles Inv. Vantage Point Corp., No. 18-CV-1230-JPS, 2019 WL 3070078, at *5 n.1 (E.D. Wis. July 12, 2019) ().
Even if the court were inclined to follow defendants' questionable theory, they have not shown that the issues presented in plaintiffs' product liability claims, breach of warranties claims, and loss of consortium claim are inextricably intertwined. Indeed, the issues are different because, as defendants note in their briefs, the legal standards for the claims require different elements of proof. Therefore, dépeçage requires the court to consider the choice-of-law question separately for each claim.
Defendants have carried their burden to show an actual conflict between New Hampshire and Pennsylvania law with respect to Counts II-IV and VI.3 Therefore, the court employs a choice-of-law analysis with respect to those claims.
With respect to the remaining claims, however, defendants have not carried their burden to...
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