Cohen v. Boston Scientific Corporation et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Carl Alexander Cohen
v. 	Case No. 20-cv-943-PB
Opinion No. 2021 DNH 033
Boston Scientific Corporation
ORDER
Boston Scientific Corporation has moved to dismiss Carl
Alexander Cohen’s breach of warranty claim because Cohen failed
to give it timely notice of the claim in violation of N.H. Rev.
Stat. Ann. § 382-A:2-607(3). 	That provision, by its plain
terms, applies only to someone who is a “buyer.” 	Here, it is
undisputed that Cohen is not a buyer. 	Although the official
comments to this section can be read to suggest that any
litigant who may wish to assert a breach of warranty claim must
give notice of his claim to any seller, such comments are not
part of the statute and cannot be relied on to change the
meaning of unambiguous statutory text. 	Accordingly, I agree
with those courts that have concluded that the notice
requirement does not apply to someone who is not a buyer. 	See,
e.g., Cole v. Keller Indus., Inc., 132 F.3d 1044, 1047-48 (4th
Cir. 1998); McKnelly v. Sperry Corp., 642 F.2d 1101, 1107 (8th
Cir. 1981). 	Boston Scientific’s motion to dismiss (Doc. No. 16)
is denied.
Case 1:20-cv-00943-PB Document 35 Filed 02/05/21 Page 1 of 2

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SO ORDERED.
/s/ Paul J. Barbadoro
Paul J. Barbadoro
United States District Judge
February 5, 2021
cc: 	Alfred T. Catalfo, Esq.
Anne Dieruf, Esq.
Benjamin R. Novotny, Esq.
Emily D. Steeb, Esq.
Lauren Pritchard, Esq.
Michael J. Carroll, Esq.
Edward J. Sackman, Esq.
William Joseph Flanagan, Esq.
Case 1:20-cv-00943-PB Document 35 Filed 02/05/21 Page 2 of 2