Bustamante v. Atrium Med. Corp.

ASUNCION BUSTAMANTE and HILDA GABRIEL, Plaintiffs, v. ATRIUM MEDICAL CORPORATION; MAQUET CARDIOVASCULAR, LLC;ETHICON INC.; and JOHNSON & JOHNSON INC., Defendants.

1:18-cv-08395 (ALC)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

February 6, 2020

OPINION & ORDER

ANDREW L. CARTER, JR., United States District Judge:

Plaintiffs Asuncion Bustamante and Hilda Gabriel (collectively, the "Plaintiffs") bring this action against Defendants Atrium Medical Corporation ("Atrium"), Maquet Cardiovascular, LLC ("MCV"), Ethicon Inc. and Johnson & Johnson Inc. In short, Plaintiffs allege Mr. Bustamante sustained injuries as a result of the implantation of the Atrium ProLite™ Mesh ("ProLite Mesh") during his hernia repair surgery. See Am. Compl., ECF No. 13. Specifically Plaintiffs bring the following claims: Strict Liability Design Defect (Count I), Strict Liability Manufacturing Defect (Count II), Strict Liability Failure to Warn (Count III), Negligence (Count IV), Breach of Warranty (Count V), Punitive Damages (Count VI), Fraudulent Misrepresentation (Count VII), Negligent Misrepresentation (Count VIII), Unjust Enrichment (Count IX) Consumer Fraud (Count X) and Loss of Consortium (XI). Before the Court are Defendants Atrium's and MCV's (collectively, the "Defendants") motions to dismiss Plaintiffs' claims. After careful consideration, Defendants' motions to dismiss are GRANTED. Additionally, Plaintiffs are GRANTED leave to amend their complaint.

BACKGROUND¹

"A hernia is a medical condition caused by the penetration of fatty tissue, intestine, or organs through a weakened or compromised location in muscle of connective tissue." Am. Compl. ¶ 39. Typically, hernias occur near the abdominal wall and at times, manifest as visible protrusions or bulges. Id. ¶ 41. Hernias can be treated through hernia repair surgeries. Id. ¶ 42. During such procedures, physicians may utilize hernia mesh, which is constructed from synthetic or biologic materials and tissues, to strengthen the repair. Id. ¶ 44-45. Common injuries resulting from surgeries using hernia mesh include "pain, infection, adhesion of scar tissue sticking together, blockages that obstruct intestines, internal bleeding, fistula between organs (abnormal organ connection or fusion), serenoma or fluid buildup at site, and perforation of other organs." Id. ¶ 48.

Defendant Atrium designed, manufactured, advertised, and sold the ProLite Mesh, which is a mid-weight polypropylene hernia mesh product. Id. ¶ 53-56. Atrium also advertised the ProLite Mesh as having "[s]oft knit construction," "[f]lexib[ility] and comfort[]," and "[s]mooth, laser round edges." Id. ¶ 57-58. Additionally, Atrium represented to Mr. Bustamante and his physician that the ProLite Mesh was safe and effective for hernia repair surgeries. Id. ¶ 61. In 2011, Defendant MCV entered into a merger transaction, under which Atrium operates as a business unit of MCV. Id. ¶ 8.

On April 21, 2016, Dr. Juan Mestrealcorta performed a hernia repair procedure on Mr. Bustamante. Id. ¶ 80. During this procedure, Dr. Mestrealcorta implanted two of Atrium's ProLite Meshes from Lot No. 400523 in Mr. Bustamante. Id. ¶ 81. Since the surgery, Mr. Bustamante has experienced stomach pains, difficulties with walking, limited range of motion,amongst other injuries. Id. ¶ 84-86. Mr. Bustamante alleges that as a result of Defendants' misrepresentations and omissions concerning the product's safety, he has suffered economic damages, severe injuries, emotional distress and mental anguish. Id. ¶ 87-88.

STANDARD OF REVIEW

When considering a motion to dismiss under Federal Rules of Civil Procedure 12(b)(6), a court should "draw all reasonable inferences in [the plaintiff's] favor, assume all well-pleaded factual allegations to be true, and determine whether they plausibly give rise to an entitlement to relief." Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted). Thus, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Moreover, "the tenet that a court must accept a complaint's allegations as true is inapplicable to threadbare recitals of a cause of action's elements, supported by mere conclusory statements." Id. at 663.

DISCUSSION

I. The Court Lacks Personal Jurisdiction Over MCV

On a motion to dismiss, "the plaintiff bears the burden of establishing that the court has jurisdiction over the defendant." DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84 (2dCir. 2001) (citation omitted); see also In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 659, 673 (2d Cir. 2013); Fed. R. Civ. Pro. 12(b)(2). Prior to discovery, a plaintiff may survive scrutiny of personal jurisdiction over a defendant by presenting, "[a] prima facie case [that] requires . . . fact specific allegations or evidence showing that activity that constitutes the basis of jurisdiction has taken place." Chirag v. MT Marida Marguerite Schiffahrts, 604 F. App'x 16, 19 (2d Cir. 2015) (citing Jazini v. Nissan Motor Co., 148 F.3d 181, 185 (2d Cir. 1998)); see also In re Terrorist Attacks, 714 F.3d at 673 (citation omitted) ("In order to survive a motion to dismiss for lack of personal jurisdiction, a plaintiff must make a prima facie showing that jurisdiction exists."). All jurisdictional allegations "are construed in the light most favorable to the plaintiff and doubts are resolved in the plaintiff's favor[.]" A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir. 1993). However, the court "will not draw argumentative inferences in the plaintiffs favor" and need not "accept as true a legal conclusion couched as a factual allegation." In re Terrorist Attacks, 714 F.3d at 673 (citations omitted); see also Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59 (2d Cir. 2012).

In cases with diversity jurisdiction, the Court must engage in a two-part analysis to determine whether personal jurisdiction exists. See Kernan v. Kurz-Hastings, Inc., 175 F.3d 236, 240 (2d Cir. 1999). First, the Court "must determine whether the plaintiff has shown that the defendant is amenable to service of process under the forum state's laws; and second, it must assess whether the court's assertion of jurisdiction under these laws comports with the requirements of due process." Id. (citing Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir.1996)). Here, Plaintiffs argue they can demonstrate both general jurisdiction under New York C.P.L.R. § 301 and specific jurisdiction under C.P.L.R. § 302.

a. General Jurisdiction

"General jurisdiction in New York is provided for in C[.]P[.]L[.]R[. §] 301, which allows a court to exercise 'such jurisdiction over persons, property, or status as might have been exercised heretofore.'" Hartford Fire Ins. Co. v. Maersk Line, No. 18-CV-121, 2019 WL 4450639, at *5 (S.D.N.Y. Sept. 17, 2019) (quoting Aybar v. Aybar, 169 A.D.3d 137, 143 (2d Dep't 2019)). Since "the Supreme Court's guidance on due process in Daimler AG v. Bauman, 571 U.S. 117, 139 (2014) . . . New York exercises general personal jurisdiction only if 'the corporation's affiliations with the state are so continuous and systematic as to render them essentially at home in the forum State.'" Id.

Additionally, federal due process permits general jurisdiction "when [the defendant's] affiliations with the State are so 'continuous and systematic' as to render them essentially at home in the forum State." Goodyear Dunlop Tires Ops., S.A. v. Brown, 564 U.S. 915, 919 (2011). Thus, "[a]side from 'an exceptional case' . . . a corporation is at home . . . only in a state that is the company's formal place of incorporation or its principal place of business." Gucci Am., Inc. v. Weixing Li, 768 F.3d 122, 135 (2d Cir. 2014) (quoting Daimler, 134 S. Ct. at 761, n.19).

In this case, Plaintiffs allege MCV is organized under the laws of New Jersey and maintains its principal place of business in New Jersey. Accordingly, MCV is not at home in New York and for this reason, the Court cannot exercise general jurisdiction over it. In addition, Plaintiffs' argument that MCV's registration in New York allows this Court to exercise general jurisdiction over it is unavailing. As the New York Appellate Division recently held in Aybar v. Aybar, "a corporate defendant's registration to do business in New York and designation of the secretary of state to accept service of process in New York does not constitute consent by thecorporation to submit to the general jurisdiction of New York for causes of action that are unrelated to the corporation's affiliations with New York." 93 N.Y.S.3d at 170; see also Brown v. Lockheed Martin Corp., 814 F.3d 619, 639 (2d Cir. 2016) (finding that an interpretation of Connecticut's business registration statute constituting consent to general jurisdiction "risk[ed] unravelling the jurisdictional structure envisioned in Daimler and Goodyear"); Carson v. W. Express, Inc., No. 19 CIV. 2227, 2019 WL 6050730, at *3 (S.D.N.Y. Nov. 14, 2019) (citing Hartford Fire Ins., 2019 WL 4450639, at *6) ("determin[ing] that the designation of an agent for service alone cannot provide this Court with...