Pigulski v. Johnson & Johnson, Inc. et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Ann Pigulski
v. Civil No. 18-cv-1061-LM
Opinion No. 2019 DNH 097
Johnson & Johnson, Inc. and
Ethicon, Inc.
O R D E R
Ann Pigulski brings this product liability action against
Johnson & Johnson, Inc. and its subsidiary, Ethicon, Inc.,
alleging claims for injuries caused by defendants’ pelvic mesh
products. Pigulski asserts thirteen claims based on various
theories of liability. Defendants move to dismiss eight of
Pigulski’s claims. Pigulski objects.
STANDARD OF REVIEW
Under Rule 12(b)(6), the court must accept the factual
allegations in the complaint as true, draw all reasonable
inferences from those facts 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, 75
(1st Cir. 2014) (quotation omitted). A claim is facially
plausible “when the plaintiff pleads factual content that allows
Case 1:18-cv-01061-LM Document 18 Filed 06/24/19 Page 1 of 16

2
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
Pigulski alleges that she was diagnosed with stress urinary
incontinence. In June 2010, she underwent a surgical repair
procedure that used a GYNECARE TVT Retropubic System Tension-
Free vaginal tape sling, a device containing mesh products that
defendants manufactured and sold. Pigulski had a second
surgical procedure in November 2015 to remove and revise the
sling. She had a third surgery in September 2017 because the
mesh had eroded.
Pigulski alleges that defendants market their mesh products
to the medical community and directly to patients as safe and
reliable medical devices. She states that defendants have
marketing campaigns and strategies aimed at health care
providers and also have direct consumer marketing to get
consumers to seek out their products. She further alleges that
defendants concealed and misrepresented the risks, dangers, and
defects of their products, which caused serious medical problems
for patients, including her. She lists fifteen defects in the
products and twenty-one risks and complications that caused the
products to be defective.
Case 1:18-cv-01061-LM Document 18 Filed 06/24/19 Page 2 of 16

3
In short, Pigulski alleges that defendants’ products,
including those used in her surgeries, were unsafe and that
defendants knew they were unsafe. She also alleges that if she
had known of the dangers and risks, she would not have used the
products for her surgery.
Pigulski brings thirteen counts in the following order:
(1) Negligence; (2) Strict Liability, Manufacturing Defect; (3)
Strict Liability, Failure to Warn; (4) Strict Liability,
Defective Product; (5) Strict Liability, Design Defect; (6)
Negligent Misrepresentation; (7) Negligent Infliction of
Emotional Distress; (8) Breach of Express Warranty; (9)
Violation of the New Hampshire Consumer Protection Act (“CPA”),
RSA 358-A; (10) Gross Negligence; (11) Unjust Enrichment; (12)
Discovery Rule and Tolling; and (13) Breach of Implied Warranty.1
DISCUSSION
Defendants move to dismiss Counts I, IV, VI, VII, VIII, IX,
X, and XIII. In support, they argue that: (1) the claims are
not actionable under New Hampshire law, which law applies to all
1 Pigulski’s breach of implied warranty claim is mistakenly
labeled as Count XII in the complaint. Because Pigulski alleged
her claim for application of both the discovery rule and tolling
in Count XII, the court will refer to Pigulski’s breach of
implied warranty claim as Count XIII.
Case 1:18-cv-01061-LM Document 18 Filed 06/24/19 Page 3 of 16

4
claims; and (2) the claims are duplicative. Pigulski disputes
both arguments.
I. Choice of Law
As a preliminary matter, defendants raise a choice-of-law
issue, arguing that New Hampshire law governs Pigulski’s
“substantive claims.” Defendants note that Pigulski
specifically references New Hampshire law in the allegations in
support of Count IV, see doc. no. 1 at ¶ 109, and brings a claim
under the New Hampshire CPA, RSA 358-A, see id. at ¶¶ 147-165.
In addition, defendants argue that the facts alleged in the
complaint support application of New Hampshire substantive law
under a choice-of-law analysis. Despite their arguments,
however, defendants state in a footnote that they reserve “the
right to assert the application of another state’s law to
certain of Plaintiff’s claims, such as application of New Jersey
law . . . .” Doc. no. 13-1 at 5 n.4.
In her objection, Pigulski states: “For purposes of this
motion and opposition only, Plaintiff will assume that New
Hampshire law applies.” Doc. no. 15 at 6. Pigulski states that
she “reserves the right to assert the application of another
state’s law at a later time.” Id.
Contrary to the parties’ theories, the court will not
proceed under New Hampshire law at this stage of the case only
Case 1:18-cv-01061-LM Document 18 Filed 06/24/19 Page 4 of 16

5
to potentially change course and apply the law of another state
at a later time. In certain circumstances, such as when the
facts alleged are complex or the governing law likely depends on
discovery, it may be premature for the court to determine the
governing law at the motion to dismiss stage. See, e.g., Picone
v. Shire PLC, No. 16-CV-12396-ADB, 2017 WL 4873506, at *15 (D.
Mass. Oct. 20, 2017) (declining to engage in choice-of-law
analysis in light of “the complex nature of the facts alleged,
including the nature of the purported unlawful conduct and
resulting harm”). Here, however, those circumstances do not
exist.
Pigulski makes no argument that the law of any other state
governs her claims and, indeed, specifically references New
Hampshire law in her allegations in support of two of her
claims. Defendants only mention New Jersey as an example with
no developed argument to support applying that state’s law.
Because the parties do not appear to disagree, and because the
outcome of the court’s choice-of-law analysis does not depend on
further factual development that could come to light through
discovery, the choice-of-law question will be decided now, and,
once decided, will become law of the case. See Nahass v.
Harrison, 207 F. Supp. 3d 96, 102 (D. Mass. 2016) (engaging in
choice-of-law analysis at the motion to dismiss stage); Adams v.
Rubin, 964 F. Supp. 507, 508-09 (D. Me. 1997) (finding choice-
Case 1:18-cv-01061-LM Document 18 Filed 06/24/19 Page 5 of 16

6
of-law analysis appropriate at motion to dismiss stage because
it was determinative of whether plaintiffs could pursue their
claims).
When, as here, jurisdiction in a federal court is based on
diversity of citizenship, courts apply the choice-of-law rules
of the forum state, which is New Hampshire. Klaxon v. Stentor
Elec. Mfg. Co., 313 U.S. 487, 496 (1941). If another state has
substantial interests in the litigation and its substantive law
conflicts with New Hampshire law, the court must apply a five-
factor test to determine which state’s law governs the claims.
Gen. Star Indem. Co. v. Beck, No. 18-cv-108-JD, 2018 WL 3849877,
at *2 & n.6 (D.N.H. Aug. 13, 2018). If no conflict is
identified, then the forum state’s law applies. Reicher v.
Berkshire Life Ins. Co. of Am., 360 F.3d 1, 4 (1st Cir. 2004);
Valle v. Powertech Indus. Co. Ltd., --- F. Supp. 3d ---, 2019 WL
1437865, at *6 (D. Mass. Apr. 1, 2019); Aftokinito Props., Inc.
v. Millbrook Ventures, LLC, No. 09-cv-415-JD, 2010 WL 3168295,
at *3 (D.N.H. Aug. 9, 2010).
As defendants note, Pigulski’s allegations in her complaint
provide support for the application of New Hampshire law.
Pigulski lives in New Hampshire, she sustained the injuries
alleged in her complaint in New Hampshire, and defendants’
actions occurred in New Hampshire. Pigulski’s complaint does
not suggest that any other state has an interest in this
Case 1:18-cv-01061-LM Document 18 Filed 06/24/19 Page 6 of 16

7
litigation, and the parties make no argument that another
state’s law conflicts with the law of New Hampshire and should
govern Pigulski’s claims. Defendants’ passing reference to New
Jersey in a footnote, without any elaboration, is not sufficient
to require a choice-of-law analysis. See, e.g., Whipps, Inc. v.
Ross Valve Mfg. Co., No. CIV.A. 14-40045-TSH, 2014 WL 1874754,
at *8 n.2 (D. Mass. May 8, 2014) (noting that mere “passing
reference” to another state’s law is insufficient to trigger a
choice-of-law analysis).
Therefore, no choice-of-law analysis is necessary. The law
of the forum, New Hampshire, governs Pigulski’s claims in this
case.
II. Duplicative Claims
Defendants argue that under RSA 507-D:1, Pigulski cannot
bring negligence-based claims that arise out of the same set of
facts as her strict product liability claims. They move to
dismiss Pigulski’s claims in Counts I (negligence); VI
(negligent misrepresentation); VII (negligent infliction of
emotional distress); and X (gross negligence) on that basis.
In addition, defendants move to dismiss Pigulski’s claims
in Counts VI (negligent misrepresentation); VII (negligent
infliction of emotional distress); IX (CPA); and XIII (Breach of
Implied Warranty), arguing that these claims are “merely
Case 1:18-cv-01061-LM Document 18 Filed 06/24/19 Page 7 of 16

8
repurposed failure to warn claims,” which Pigulski already
alleges in Count III.
A. RSA 507-D:1
RSA 507-D:1 provides the definition of “product liability
action” as used in that chapter:
“Product liability action” means any action brought
for or on account of personal injury, death or
property damage or other damage caused by or resulting
from the development, manufacture, construction,
design, formula, preparation, assembly, testing,
warning, instructing, advertising, marketing,
certifying, packaging, or labeling of any product.
The term includes all such actions, regardless of the
legal theory relied upon, whether strict liability in
tort, negligence, breach of warranty, breach of or
failure to discharge a duty to warn or instruct,
misrepresentation, concealment, nondisclosure or any
other theory whatsoever.
RSA 507-D:1, I. Defendants interpret that language as requiring
the dismissal of Pigulski’s negligence-based claims at this
stage because they are duplicative of her strict product
liability claims.
Defendants’ interpretation of RSA 507-D:1 is incorrect.
Nothing in the definition restricts the theories under which
product liability actions may be brought nor bars duplicative
theories. Indeed, product liability actions brought under New
Hampshire law often include both strict liability claims and
related negligence claims. See State v. Exxon Mobil Corp., 168
N.H. 211, 248-51 (2015) (providing history of product liability
Case 1:18-cv-01061-LM Document 18 Filed 06/24/19 Page 8 of 16

9
actions in New Hampshire); see also Connelly v. Hyundai Motor
Co., 351 F.3d 535, 539-40 (1st Cir. 2003) (“The New Hampshire
Supreme Court has consistently declined to adopt the rule urged
by Hyundai—that a trial court may not instruct a jury on both
strict liability and negligence counts in a product liability
action.”); Michnovez v. Blair, LLC, No. 10-cv-110-LM, 2012 WL
2627567, at *3-4 (D.N.H. July 5, 2012); Union Mut. Fire Ins. V.
Hamilton Beach/Proctor-Silex, Inc., No. 05-cv-170-JD, 2006 WL
3782716, at *1 (D.N.H. Dec. 21, 2006). Indeed, defendants’
interpretation of RSA 507-D:1 would run afoul of Federal Rule of
Civil Procedure 8(d)(2), which permits a party to allege two or
more claims alternatively or hypothetically.
Therefore, defendants have not shown that Pigulski’s
negligence-based claims are barred by RSA 507-D:1. The court
notes, however, that as the litigation progresses, Pigulski may
want to consider whether all of her claims are equally
meritorious and whether it is in her best interest to take a
more focused approach on her theories of relief. See, e.g.,
Batterman v. Leahy, 544 F.3d 370, 373 (1st Cir. 2008) (“A
kitchen-sink complaint, unless dismissed for some central
jurisdictional or pleading flaw, is likely to be hard slogging,
requiring that counts be worked through one by one.”)
Case 1:18-cv-01061-LM Document 18 Filed 06/24/19 Page 9 of 16

10
B. Failure to Warn Claims
Defendants argue that Pigulski’s claims for negligent
misrepresentation, negligent infliction of emotional distress,
CPA, and breach of implied warranty claims are duplicative of
her failure to warn claim alleged in Count III.
Defendants’ argument is somewhat unclear. They appear to
argue not that the claims themselves are necessarily duplicative
of Pigulski’s failure to warn claim, but that the learned
intermediary doctrine applies to each of the claims. In other
words, defendants argue that because they can assert the same
defense against Pigulski’s failure to warn claim as they can
against her claims in Counts VI, VII, IX, and XIII, the latter
claims must be dismissed as duplicative of Pigulski’s failure to
warn claim.
Defendants’ argument has two problems. The first is, as
the court explained above, Pigulski is not precluded from
bringing claims in the alternative. Indeed, the majority of
cases defendants cite in support of their argument that the
learned intermediary doctrine requires dismissal of Pigulski’s
“repackaged failure to warn” claims were decided well after the
motion to dismiss stage. See doc. no. 13-1 at 7-8.
Regardless, as Pigulski notes, it is far from clear that
the learned intermediary doctrine applies to her claims. If the
doctrine applies in this case, its application would require a
Case 1:18-cv-01061-LM Document 18 Filed 06/24/19 Page 10 of 16

11
much more developed analysis of the facts material to each claim
and a showing, under New Hampshire law, that the claims are
barred. Defendants have not provided sufficient grounds at this
early stage to dismiss the claims on that basis.
III. Actionable Claims
Defendants contend that under New Hampshire law, Counts IV,
VI, X, and XIII are not actionable for several reasons.
Pigulski argues that all her claims other than her claim for
gross negligence (Count X) should survive.
With regard to her gross negligence claim, Pigulski
concedes that the claim is not cognizable under New Hampshire
law. Although she reserves the right to reinstate the claim if
another state’s law applies to this case, for the reasons stated
above, New Hampshire law governs Pigulski’s claims. Therefore,
Count X, the gross negligence claim, is dismissed.
A. Count VI - Negligent Misrepresentation
Defendants contend that Pigulski has not alleged a
negligent misrepresentation claim because she alleges no facts
to show that she relied on any misrepresentation made by
defendants. Pigulski contends that the allegations in her
complaint are sufficient to show reliance.
Case 1:18-cv-01061-LM Document 18 Filed 06/24/19 Page 11 of 16

12
The elements of a negligent misrepresentation claim are “a
negligent misrepresentation of a material fact by the defendant
and justifiable reliance by the plaintiff.” Wyle v. Lees, 162
N.H. 406, 413 (2011). An omission of a material fact is
actionable only if the defendant had a duty to disclose the
omitted information. Island Shores Estates Condo. Ass’n v. City
of Concord, 136 N.H. 300, 306 (1992); Ingaharro v. Blanchette,
122 N.H. 54, 57 (1982).
In support of her claim, Pigulski points to her allegations
that defendants marketed their products to patient consumers, in
addition to medical providers, and that defendants stated their
products are safer and more effective than other products. She
also cites her allegation that the representations were intended
to cause reliance and “caused Plaintiff to purchase, rely, use,
and request the Pelvic Mesh Products.” Doc. no. 1 at ¶ 67. She
further alleges that “[m]embers of the medical community,
including physicians and other healthcare professionals, as well
as Plaintiff and the Public relied upon the representations and
warranties of Defendants.” Id. at ¶ 133.
Taking those allegations in the light most favorable to
Pigulski, with reasonable inferences resolved in her favor, she
alleges that she saw and was influenced by defendants’ marketing
of their products and requested that her surgeon use those
products. Although the allegations border on being merely
Case 1:18-cv-01061-LM Document 18 Filed 06/24/19 Page 12 of 16

13
conclusory statements of the elements of the cause of action,
the factual reality underlying the claims would be better
addressed in the evidentiary context of a summary judgment
motion. Therefore, the allegations are sufficient to survive
defendants’ motion to dismiss.
B. Count XIII – Breach of Implied Warranty
Defendants contend that under the New Hampshire Uniform
Commercial Code (“UCC”), RSA 382-A:2-607(3)(a), Pigulski was
required to give them notice of a breach of warranty, which she
did not do. Pigulski contends that defendants had constructive
notice of the breach that she claims. She cites the multi-
district litigation against defendants and safety notices from
the Food and Drug Administration in 2008 and 2011 as providing
constructive notice. Defendants argue that Pigulski cannot rely
on those circumstances for notice because she did not allege
them in her complaint.
Defendants do not provide any authority to show that notice
is an element of a breach of warranty claim that must be alleged
in a complaint, rather than a defense that may be later raised
by a defendant. Regardless, the issue of what notice may be
required, if any, of a breach of warranty under the UCC is
disputed among the states. See Keith v. Ferring Pharms., Inc.,
No. 15C10381, 2016 WL 5391224, at *6 (N.D. Ill. Sept. 27, 2016)
Case 1:18-cv-01061-LM Document 18 Filed 06/24/19 Page 13 of 16

14
(noting the differences in state law as to what “constitutes
reasonable notice and to whom notice should be given” for a
breach of warranty under the UCC); BK Trucking Co. v. Paccar,
Inc., No. 15-2282 (JBS/AMD), 2016 WL 3566723, at *7 (D.N.J. June
30, 2016) (same). Neither defendants nor Pigulski cite a
dispositive New Hampshire case.
Given the basis of notice raised by Pigulski, this is a
matter that would be better addressed through a properly
supported motion for summary judgment. Therefore, defendants’
motion to dismiss Count XIII is denied.
C. Count IV – Strict Liability – Defective Product
Relying on Cheshire Med. Ctr. v. W.R. Grace & Co., 49 F.3d
26, 31 (1st Cir. 1995), defendants assert that New Hampshire
recognizes strict product liability for manufacturing defects,
design defects, and warning defects. They note that Pigulski
alleges those claims in Counts II, III, and V of her complaint.
Defendants contend that Pigulski’s “defective product” claim in
Count IV, however, is not a separate claim cognizable under New
Hampshire law as set forth in Cheshire.
In response, Pigulski acknowledges the holding in Cheshire,
noting that “to find a defective product, one necessarily needs
to find for one of the other three claims.” Doc. no. 15 at 14.
Case 1:18-cv-01061-LM Document 18 Filed 06/24/19 Page 14 of 16

15
Nevertheless, she argues that the limitation recognized there
“does not eliminate a defective product strict liability claim
on its face.” Id.
Unlike many of her other claims which allege multiple
theories of relief based on the same facts, it is not clear what
Pigulski’s theory for her fourth strict liability claim might be
other than what is set forth in other claims. In Count IV,
Pigulski alleges that defendants’ products “are inherently
dangerous and defective, unfit and unsafe for their intended and
reasonably foreseeable uses, and do not meet or perform to the
expectations of patients and their health care providers.” Doc.
no. 1 at ¶ 108. She further alleges that “[a]s a proximate
result of defendants’ design, manufacture, marketing, sale, and
distribution of the Pelvic Mesh Products,” she has been injured.
Id. at ¶ 110.
As such, Pigulski’s claim in Count IV alleges a product
liability claim based on both a manufacturing defect and design
defect. Those theories of liability, and nearly identical
allegations, are set forth in support of Pigulski’s claims in
Count II – Strict Liability, Manufacturing Defect, and Count V –
Strict Liability, Design Defect. Pigulski makes no argument to
show that she is alleging a distinct cause of action in Count IV
as opposed to Counts II and V. As a result, Pigulski does not
Case 1:18-cv-01061-LM Document 18 Filed 06/24/19 Page 15 of 16

16
allege a separate claim in Count IV and defendants’ motion to
dismiss is granted as to that Count.2
CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss
(document no. 13) is granted as to Counts IV and X and is
otherwise denied.
SO ORDERED.
______________________________
Landya McCafferty
United States District Judge
June 24, 2019
cc: Counsel of Record
2 In her objection, Pigulski asks the court to grant her
leave to amend if any of her claims are dismissed. A request
such as this should be made in a separate motion and not
mentioned in passing as part of an objection to this motion to
dismiss. See LR 7.1(a)(1). Pigulski’s request to grant her
leave to amend is thus denied on procedural grounds.
Case 1:18-cv-01061-LM Document 18 Filed 06/24/19 Page 16 of 16