UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mark and Marie Roberts

v. Civil No. 20-cv-970-JD Opinion No.

Johnson & Johnson and Ethicon, Inc.

O R D E R

Marie Roberts and her husband, Mark, bring product

liability claims, other tort claims, and a claim for loss of

consortium against Johnson & Johnson and Ethicon, Inc., which

arise from Marie’s injuries caused by a mesh device. The

defendants move to dismiss several of the Robertses’ claims.

The Robertses did not file an objection.

Standard of Review

When, as here, a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6) is unopposed, the court may not deem

the lack of a response to be procedural default. Pomerleau v.

W. Springfield Pub. Sch.,

(1st Cir. 2004).

Instead, the district court remains obligated to “examine the

complaint itself to see whether it is formally sufficient to

state a claim.”

To state a claim, the complaint must allege facts that

support a plausible claim for relief, that is, a claim that is

more than merely conceivable or a “sheer possibility.” Ashcroft

v. Iqbal,

(2009); Bell Atl. Corp. v. Twombly,

(2007). In examining the complaint, the court

takes the factual allegations as true and takes reasonable

inferences from those allegations in the plaintiff’s favor. Doe

v. Pawtucket Sch. Dept.,

, 7 (1st Cir. 2020). “If the

factual allegations in the complaint are too meager, vague, or

conclusory to remove the possibility of relief from the realm of

mere conjecture, the complaint is open to dismissal.” Artuso v.

Vertex Pharm., Inc.,

(1st Cir. 2011).

Background

In their amended complaint, the Robertses allege that

Ethicon and Johnson & Johnson developed, marketed, and sold

pelvic mesh products beginning in 2002. In September of 2013,

Marie Roberts underwent a surgical implantation of a Gynecare

TVT device to treat stress urinary incontinence. Marie had a

second surgery in October of 2017 to remove the device because

it had “started banding and become exposed,” which caused pain

and a variety of other symptoms.

Marie Roberts alleges strict liability claims of failure to

warn and design defect, Counts I and II, and a claim for

2 negligence, based on the defendants’ design, labeling,

instructions, warnings, sale, marketing, and distribution of the

Gynecare TVT device, Count III. She alleges a claim of

negligent misrepresentation, Count IV, and a claim for breach of

express warranty, Count V. Count VI is a claim that the

defendants violated the New Hampshire Consumer Protection Act.

Mark Roberts brings a claim for loss of consortium, Count VII.

Discussion

The defendants move to dismiss Counts III, IV, V, and VI in

the amended complaint. As is noted above, the Robertses did not

file a response. Nevertheless, as is required, the court

examines the complaint to determine whether plausible claims are

alleged.

A. Negligence Claim – Count III

The defendants argue that the Robertses’ negligence claim

must be limited to the same product liability theories as their

strict liability claims. They cite no authority to support that

argument, and the court is not aware that any such rule exists

under New Hampshire law. New Hampshire defines product

liability actions broadly and does not limit the underlying

3 legal theories that may be brought as product liability actions.1

See RSA 507-D:1, I; Pigulski v. Johnson & Johnson, Inc.,

,

, at *3-*4 (D.N.H. June 24, 2019).

Therefore, the defendants have not shown that the negligence

claim is improperly or insufficiently pleaded because it

includes theories beyond those raised in support of the strict

liability claims.

B. Negligent Misrepresentation - Count IV

The defendants argue that a claim of negligent

misrepresentation charges fraud and must be pleaded with

particularity under Federal Rule of Civil Procedure 9(b). Under

New Hampshire law, however, negligent and intentional

misrepresentation are different torts with different elements.

Compare Tessier v. Rockefeller,

(2011)

(intentional misrepresentation or fraud), with Wyle v. Lees,

(2011) (negligent misrepresentation). While a

claim for intentional misrepresentation is a claim for fraud and

must meet the pleading standards of Rule 9(b), a claim for

1 The court notes that in Pigulski, the same defendants represented by the same counsel argued that the negligence claim must be dismissed as duplicative because it alleged the same legal theories as the strict liability claims. It appears that having lost on that argument the defendants are trying the reverse argument here, that a product liability negligence claim is limited to the defects raised in strict liability claims.

4 negligent misrepresentation must meet only the pleading

standards of Federal Rule of Civil Procedure 8(a)(2).

L’Esperance v. Manhattan Mortg. Corp.,

,

, at *3 (D.N.H. Sept. 5, 2012).

As the defendants point out, however, a negligent

misrepresentation claim will be subject to Rule 9(b) “where the

core allegations effectively charge fraud.” N. Am. Catholic

Educ. Programming Found., Inc. v. Cardinale,

(1st

Cir. 2009). The defendants have not shown that the Robertses’

allegations in the amended complaint allege fraud rather than

negligence.2 In fact, they fault the Robertses for failing to

allege facts to show that they knew their representations were

false, which is an element of fraud. The defendants have not

shown that Rule 9(b) applies to the negligent misrepresentation

claim alleged in Count IV.

C. Breach of Express Warranty – Count V

The defendants argue that Count V is barred by the statute

of limitations. Under New Hampshire law, RSA 382-A:2-725

2 The defendants rely on Gergenti v. Ethicon, Inc.,

, at *2 (M.D. Fl. Sept. 22, 2020), which is not persuasive in this case because the court stated that Rule 9(b) “applies to actions for negligent misrepresentation brought under Florida law.” As the defendants argued thoroughly in their motion, New Hampshire law applies here. They have not shown that Florida and New Hampshire law on negligent misrepresentation is the same.

5 provides the time limit for breach of express warranty claims.

See Caldwell v. Atrium Med. Corp., No. 17-CV-021-LM,

, at *2 (D.N.H. Sept. 23, 2019). RSA 383-A:2-725

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 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.” RSA 382-A:2-725(2).

Marie Roberts alleges that the Gynecare TVT device was

implanted in September of 2013. The defendants contend that the

tender of delivery necessarily was made before that date and

that the cause of action accrued then. They further contend

that because the action was not brought until September of 2020,

more than four years after tender of delivery of the device, the

breach of express warranty claim is time barred.

Because the Robertses did not respond to the motion, they

did not raise the exception for warranties of future performance

or other possible exceptions to the four-year limitation period.

See Caldwell,

, at *2. The court declines to

consider the exceptions on their behalf. Therefore, Count V is

dismissed as time barred.

6 D. Violation of the Consumer Protection Act – Count VI

The defendants contend that the Robertses do not allege a

violation of the CPA because they have not alleged prohibited

conduct and have not met the standard of Rule 9(b). They argue

that because the FDA approved the TVT device initially and again

after further review in 2011, the Robertses do not and cannot

allege actions that violate the CPA. They also argue that the

Robertses do not allege facts that plausibly show that they had

a culpable state of mind in marketing and selling the device.

“The CPA [New Hampshire Consumer Protection Act] proscribes

unfair or deceptive trade practices in general, and sets forth a

list of specific types of conduct that qualify as unfair or

deceptive trade practices.” Fat Bullies Farm, LLC v. Devenport,

(2017). The list, however, is not exclusive so

that other actions and practices may violate the Act if they

“attain a level of rascality that would raise an eyebrow of

someone inured to the rough and tumble of the world of

commerce.”

Further, federal cases interpreting the Federal

Trade Commission Act provide guidance as to what actions are

unlawful under RSA 358-A.

In their amended complaint, the Robertses allege that the

defendants market the Gynecare TVT device as a safe, effective,

and reliable medical device. The allege that contrary to those

7 representations, Gynecare TVT has high rates of failure, injury,

and complications that often cause patients to require additional

surgical procedures. They further allege that the defendants

knew of and misrepresented the propensity of Gynecare TVT devices

to fail and cause injury, including misrepresentations made to

the FDA. They allege that the defendants have made incomplete

and misleading disclosures to the FDA about the device. They

make further allegations about the defendants’ actions and

failures with respect to the safety and efficacy of the TVT

device.

In product liability cases that arose from a different mesh

device, another judge in this district considered similar

grounds raised to dismiss CPA claims and concluded that the

plaintiffs’ allegations, which were similar to those made here,

were sufficient to avoid dismissal.3 Caldwell,

,

at *6; Blackwood v. Atrium Med. Corp.,

,

, at *4 (D.N.H. Aug. 12, 2019). To the extent the

defendants rely on FDA actions to oppose the CPA claim, that

defense would require consideration of materials that are

3 Manufacturers and sellers engage in unfair and deceptive practices in violation of the Federal Trade Commission Act by misrepresenting the effectiveness or safety of their products. See, e.g., F.T.C. v. Pantron I Corp.,

, F.T.C. v. Willms,

, at *10 (W.D. Wash. Sept. 13, 2011); F.T.C. v. Sili Neutraceuticals, LLC,

, at *5 (N.D. Ill. Jan. 23, 2008).

8 extrinsic to the amended complaint, which is not appropriate in

the context of a motion to dismiss under Rule 12(b)(6). See

Newman v. Lehman Bros. Holdings Inc.,

(1st Cir.

2018). For that reason, the defense would be more appropriately

presented in a motion for summary judgment.

Conclusion

For the foregoing reasons, the defendants’ motion to

dismiss (document no. 19) is granted as to the claim for breach

of express warranty, Count V, and is otherwise denied.

SO ORDERED.

______________________________ Joseph A. DiClerico, Jr. United States District Judge February 4, 2021

cc: Counsel of record.

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