Blackwood v. Atrium Medical Corporation
1:16-cv-00379
| D.N.H. | Aug 12, 2019Background
- Plaintiff Felicia Blackwood had an open umbilical hernia repair on September 27, 2012; the surgeon implanted Atrium’s C‑QUR V patch mesh.
- She sought care on February 27, 2013 for abdominal symptoms and underwent exploratory laparoscopy (and mesh removal) on September 17, 2013; she alleges chronic injury caused by mesh defects.
- Blackwood filed suit in the MDL against Atrium and related entities asserting negligence, strict‑liability (design, manufacturing, failure to warn), breach of warranties, and consumer‑protection claims; her case was a bellwether selection.
- Defendants moved to dismiss certain claims as time‑barred under New Hampshire’s three‑year statute (RSA 508:4, I) and for failure to state a claim, including Rule 9(b) specificity for the consumer‑protection count.
- The court considered whether the discovery rule or fraudulent concealment tolled the limitations period and whether Count VII (consumer protection) satisfied pleading rules and statutory elements.
- The court denied the motion to dismiss, finding factual allegations leave doubt on timeliness and that the consumer‑protection claim was pleaded with sufficient particularity at this stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether product‑liability and consumer‑protection claims are time‑barred under New Hampshire’s 3‑year statute | Blackwood invokes the discovery rule: she did not know mesh was cause until exploratory surgery/removal in Sept. 2013 | Defendants point to February 2013 hospital visit and filing in Aug. 2016 as outside 3 years | Denied dismissal: allegations create doubt about when she discovered (or should have discovered) causal connection; tolling issues remain for later stages |
| Whether New Hampshire Consumer Protection Act (and cited S.C. statutes) claim must plead separate counts for each statute | Blackwood may plead alternative or multiple statutory theories in one count | Defendants argue separate statutory causes of action must be in separate counts under Rule 10(b) | Court rejects defendants’ view; one count citing multiple statutes is permissible and not confusing at this stage |
| Whether reliance is a necessary element of the consumer‑protection claims | Blackwood contends reliance is not required for the statutes she invokes (and alleges third‑party reliance) | Defendants assert plaintiff failed to plead reliance as required | Court: reliance is not required under the cited statutes (NH and SC authorities), so lack of direct reliance allegations is not fatal |
| Whether plaintiff met Rule 9(b) particularity for consumer‑protection allegations that sound in fraud | Blackwood points to specific allegations: misleading physicians, manipulating studies, altering reporting/recall thresholds | Defendants argue allegations are generic and fail Rule 9(b) | Court finds several particularized factual allegations sufficient to survive dismissal under Rule 9(b) at pleading stage |
Key Cases Cited
- Foley v. Wells Fargo Bank, N.A., 772 F.3d 63 (1st Cir. 2014) (standard for facial plausibility under Rule 12(b)(6))
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (plausibility pleading framework)
- DeGrandis v. Children’s Hosp. Bos., 806 F.3d 13 (1st Cir. 2015) (statute‑of‑limitations dismissal appropriate where complaint leaves no doubt)
- Rodi v. S. New Eng. Sch. of Law, 389 F.3d 5 (1st Cir. 2004) (pleading standards and affirmative defenses on Rule 12(b)(6))
- Bray v. Husted, 11 F. Supp. 3d 854 (E.D. Ky. 2014) (exploratory surgery can create reasonable dispute about when plaintiff discovered cause)
- Beane v. Dana S. Beane & Co., P.C., 160 N.H. 708 (N.H. 2010) (plaintiff must show discovery or fraudulent concealment to avoid dismissal when defendant meets initial limitations burden)