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Nowell v. Medtronic Inc

United States District Court, D. New Mexico

March 29, 2019

JANICE NOWELL, Plaintiff,
v.
MEDTRONIC INC.; COVIDIEN PLC; COVIDEN LP, and MEDTRONIC PLC, Defendants.

          Jason S. Montclare Law Office of Jason S Montclare, Esq Alamogordo, New Mexico Attorney for the Plaintiff

          Alex Cameron Walker Modrall, Sperling, Roehl, Harris & Sisk, P.A.Albuquerque, New Mexico --and-- Joseph G. Petrosinelli Ana C. Reyes Williams & Connolly LLP Washington, D.C. Attorneys for the Defendants

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Defendants' Motion to Dismiss, filed March 23, 2018 (Doc. 27)(“MTD”). The Court held a hearing on August 10, 2018. The primary issues are: (i) whether the applicable statutes of limitations bar Plaintiff Janice Nowell's claims against Defendants Medtronic Inc., Covidien PLC, Covidien LP, and Medtronic PLC for negligence, strict liability -- design defect, manufacturing defect, and failure-to-warn -- breach of express warranty, and breach of implied warranty; and (ii) whether Nowell has alleged with specificity how the Defendants' product is defective and how that defect caused her injuries. The Court will grant the MTD. Nowell's warranty claims are untimely, because Nowell alleges that her physician used the Defendants' defective product to repair her hernia[1] on October 27, 2010, but Nowell did not file her original Complaint for Damages for Personal Injury Resulting From Negligence, Strict Liability and Breach of Warranties (Doc. 1)(“Complaint”), until October 5, 2017, almost three years after the expiration of the four-year statute of limitations governing express and implied warranty claims. See N.M. Stat. Ann. § 55-2-725(1). Nowell's negligence and strict liability claims are untimely, because the Second Amended Complaint for Damages for Personal Injury Resulting from Negligence, Strict Liability and Breach of Warranties, filed January 19, 2018 (Doc. 24-1)(“Amended Complaint”), indicates that Nowell was aware of cognizable tort injuries between April, 2011, and March, 2014, but did not file her original Complaint until October 5, 2017, after the three-year statute of limitations governing negligence and strict liability claims had expired. See N.M. Stat. Ann. § 37-1-8. Moreover, the Court concludes that Nowell's factual allegations lack specificity sufficient to satisfy the pleading standard that the Supreme Court of the United States of America articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Nowell's negligence claim does not plead facts alleging causation. Her strict liability claims do not allege any specific defect -- in either design, manufacture, or warning -- that made the Defendants' product unreasonably dangerous and caused her injuries. Moreover, Nowell has not alleged that a feasible alternative design existed which lacked the alleged design defect and that therefore would have prevented her injuries. See Morales v. E.D. Etnyre & Co., 382 F.Supp.2d 1278, 1283 (D.N.M. 2005)(Browning, J.)(“Thus, to the extent that a plaintiff could come to court and merely criticize a product, the Court believes that the New Mexico law required the plaintiff to propose an alternative design.”). Nowell does not allege an affirmation or representation that could support her express warranty claim. Furthermore, Nowell does not allege with sufficient specificity a defect that rendered the Defendants' product sufficiently unfit for its particular purpose or sufficiently unmerchantable to support her claim for breach of implied warranty. Finally, Nowell has not alleged facts sufficient to support a finding that the Defendants' conduct maliciously, intentionally, fraudulently, oppressively, recklessly, or wantonly offended Nowell's rights such that Nowell is entitled to punitive damages. Accordingly, the Court will grant the MTD and dismiss the case with prejudice.

         FACTUAL BACKGROUND

         The Court takes the facts from the Amended Complaint. As this matter comes before the Court on a motion to dismiss pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court assumes that all facts in the Complaint are true, see Bell Atl. Corp. v. Twombly, 550 U.S. at 555 (stating that, to survive a motion to dismiss, “[f]actual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)”), and “grants all reasonable inferences from the pleadings in that party's favor, ” Sanders v. Mountain Am. Fed. Credit Union, 689 F.3d 1138, 1141 (10th Cir. 2012).

         According to the Amended Complaint, on October 27, 2010, Nowell had an operation with Dr. William Pollard to repair a fifteen centimeter “superiorperiumbilical hernia.” Amended Complaint ¶ 38, at 8. At the time, Dr. Pollard implanted a twenty centimeter “Parietex Mesh Composite”[2] to repair Nowell's hernia. Amended Complaint ¶ 38, at 8. Subsequently, the mesh began to “pull away from the actual edges, ” and on April 27, 2011, Nowell had a second surgery wherein Dr. Pollard used additional sutures to reinforce the existing Parietex mesh. Amended Complaint ¶ 38, at 8. Dr. Pollard did not inform Nowell of any problems with the mesh and, after the surgery, noted that Nowell “was doing well.” Amended Complaint ¶ 38, at 8. Between April 27, 2011, and March 1, 2014, Nowell “began experiencing symptoms including but not limited to exhaustion and pain in the area of the mesh.” Amended Complaint ¶ 38, at 8. During this period, “Nowell was skeptical as to whether the mesh was causing these problems”; however, Dr. Pollard did not advise her that the mesh was causing these issues. Amended Complaint ¶ 38, at 8. On March 1, 2014, Nowell underwent a CT scan.[3] See Amended Complaint ¶ 38, at 8. The physicians who performed Nowell's CT scan neither concluded nor advised Nowell that the mesh was causing her issues. See Amended Complaint ¶ 38, at 8. The physicians were unable to diagnose the symptoms' cause, because Nowell “apparently had cysts in the area associated with the mesh.” Amended Complaint ¶ 38, at 8. On October 6, 2014, Nowell underwent another CT scan, which “revealed a large fluid collection associated with the mesh” and a corresponding staph infection.[4]Amended Complaint ¶ 38, at 8. On October 8, 2014, “Dr. Powell”[5] informed Nowell that “there was no choice but to remove the Parietex mesh and replace it with a biological mesh, ” which he “memorialized . . . in his treatment notes.” Amended Complaint ¶ 38, at 8. Moreover, during this discussion, Dr. Pollard told Nowell “that there was a problem with the mesh itself.” Amended Complaint ¶ 38, at 8. “On or about October 20, 2014, ” Dr. Pollard removed the “infected and disintegrated (unincorporated)” Parietex mesh from Nowell's abdomen. Amended Complaint ¶ 38, at 8.

         PROCEDURAL BACKGROUND

         On October 5, 2017, Nowell filed suit in the United States District Court for the District of New Mexico, alleging six causes of action: (i) negligence; (ii) strict liability -- design defect; (iii) strict liability -- manufacturing defect; (iv) strict liability -- failure-to-warn; (v) breach of express warranty; and (vi) breach of implied warranty. See Complaint ¶¶ 103-155, at 18-32, filed October 5, 2017 (Doc. 1)(“Complaint”). Nowell subsequently amended the Complaint on October 6, 2017, see First Amended Complaint for Damages for Personal Injury Resulting from Negligence, Strict Liability and Breach of Warranties, filed October 6, 2017 (Doc. 4), and again on January 19, 2018, but alleges the same claims, see Amended Complaint ¶¶ 103-155, at 22-36.

         Nowell contends that the Defendants were negligent in failing to use reasonable care and breached their duty to Nowell “in designing, manufacturing, marketing, labeling, packaging and selling” the mesh. Amended Complaint ¶ 104, at 22. Specifically, Nowell contends that the mesh's design “did not provide for sufficient resiliency which caused the Product to disintegrate in Plaintiff, ” and that the mesh's manufacturing process caused “an unreasonable risk of harm to women in whom the Product was implanted, including the Plaintiff.” Amended Complaint ¶ 105, at 23. Nowell further alleges that the Defendants did not use reasonable care in the mesh's testing and inspection, in instructing physicians in how to use the mesh, and in evaluating the mesh's safety “to determine the nature, magnitude, and frequency of serious, life threatening complications that were known or knowable.” Amended Complaint ¶ 105, at 23. Nowell further alleges that the Defendants' mesh is unreasonably dangerous and defective, because the mesh material causes adverse reactions and injuries; the mesh design facilitated harmful bacteria growth, which caused “immune reactions and subsequent tissue breakdown and adverse reactions and injuries;” and the mesh has a propensity “to disintegrate inside the body, ” “to deform when subject to prolonged tension inside the body, ” to cause “adverse tissue reactions, ” and to create “a non-anatomic condition in the abdomen leading to chronic pain and functional disabilities when the mesh is implant[ed] according to the manufacturers instructions.” Amended Complaint ¶ 106, at 23-24. Nowell adds that her “adverse tissue reactions . . . are causally related to infection, as the materials used to construct the Product are foreign.” Amended Complaint ¶ 106, at 24.

         Nowell also alleges that the Defendants “negligently failed to warn” her and/or her healthcare providers about the mesh's “propensities to deform inside the body, ” about “degradation, fragmentation and/or creep, ” about “the rate and manner of mesh erosion or extrusion, ” and about the mesh's risks, including “chronic infections” and “recurrent, intractable abdominal pain and other pain.” Amended Complaint ¶ 107, at 24-25. The Defendants' duty to warn, asserts Nowell, extends to the “need for corrective or revision surgery to adjust or remove the Product, ” and treatment with the mesh exposes patients to greater risk than treatment with “feasible available alternatives, ” including risks attendant to multiple, debilitating surgeries.

         Amended Complaint ¶ 108, at 25. Nowell asserts that the Defendants' negligence was the direct and proximate cause of her “significant mental and physical pain and suffering” to include “permanent injury, . . . medical treatment and . . . likely . . . further medical treatment and procedures, . . . financial or economic loss, . . . obligations for medical services and expenses, lost income, and other damages.” Amended Complaint ¶ 109, at 25.

         Nowell contends that the Defendants are strictly liable for the mesh's alleged design defects, but for which, according to Nowell, she would not have sustained her injuries. See Amended Complaint ¶ 121, at 27. Specifically, Nowell contends that the meshes' “inelasticity, ” which causes “them to be improperly mated to the delicate and sensitive areas of the abdomen where they are implanted, and causes pain upon normal daily activities that involve movement in the abdomen, ” and that the mesh has “[b]iomechanical issues . . . including, but not limited to, the propensity of the Product to disintegrate inside the body, that in turn cause surrounding tissue to be inflamed, become fibrotic, and contract, resulting in injury.” Amended Complaint ¶ 121, at 28. Nowell reasserts the same alleged injuries described in paragraph 109. See Amended Complaint ¶ 122, at 28-29. Nowell adds that the mesh was “inherently defective, ” because it “was not sturdy enough to prevent disintegration and malformation, ” which resulted in the mesh “breaking apart while in the Plaintiff's body. . . in turn caus[ing] . . . internal bleeding, infection and other serious injuries.” Amended Complaint ¶ 123, at 29.

         Nowell asserts that the Defendants are strictly liable for the mesh's alleged manufacturing defects, because the mesh “deviated materially from Defendants' design and manufacturing specifications in such a manner as to pose unreasonable risks of serious bodily harm to the Plaintiff.” Amended Complaint ¶ 125, at 29. Nowell alleges that these manufacturing defects were the direct and proximate cause of her injuries. See Amended Complaint ¶ 126, at 29-31.

         Nowell contends that the Defendants are strictly liable for not providing Nowell with “appropriate and necessary warnings” regarding the mesh's alleged defects. Amended Complaint ¶ 129, at 30. Nowell reasserts her arguments from paragraph 106, including that the Defendants had a duty to warn her about the mesh's propensity to disintegrate, fragment, degrade, and improperly “mate[] with the abdominal region, ” and to cause “chronic inflammation, ” “chronic infections, ” “scarring, ” and “recurrent, intractable pain.” Amended Complaint ¶ 129, at 30-31. The Defendants' duty to warn, asserts Nowell, extends to the “need for corrective or revision surgery to adjust or remove the Product, ” and that treatment with the mesh exposes patients to greater risk than treatment with “feasible available alternatives” including risks attendant to multiple, debilitating surgeries. Amended Complaint ¶ 129, at 31. Nowell asserts that the Defendants' failure-to-warn was the direct and proximate cause of her “significant mental and physical pain and suffering” to include “permanent injury, . . . medical treatment and . . . likely . . . further medical treatment and procedures, . . . financial or economic loss, . . . obligations for medical services and expenses, lost income, and other damages.” Amended Complaint ¶ 130, at 31-32.

         Nowell asserts that the Defendants are liable for breach of express warranty based on assurances made “to the general public, hospitals and health care professionals that the Product was safe and reasonably fit for its intended purposes.” Amended Complaint ¶ 141, at 34. Nowell contends that her physician chose the Defendants' mesh based on such warranties and representations. See Amended Complaint ¶ 142, at 34. The Defendants are liable, according to Nowell, because the mesh “was unreasonably dangerous and defective . . . and not as Defendant[s] had represented, ” Amended Complaint ¶ 144, at 34, which resulted in Nowell's physician implanting the mesh in Nowell's body, see Amended Complaint ¶ 145 at 34, and thereby causing the injuries detailed in paragraph 109 and repeated in paragraph 146, see Amended Complaint ¶ 146, at 34.

         Nowell asserts that the Defendants are liable for breach of implied warranty, because the mesh was neither merchantable nor fit for its intended purpose. See Amended Complaint ¶ 155, at 35-36. Nowell asserts that such a breach is evident, because the mesh “disintegrated and mishappened [sic] inside the Plaintiff's body, causing injuries.” Amended Complaint ¶ 155, at 35-36. Nowell reasserts her injuries that paragraph 106 describes. See Amended Complaint ¶ 157, at 36. Nowell adds that “someone with knowledge in the trade would reject the mesh for failure to meet the contract description.” Amended Complaint ¶ 159, at 36. Accordingly, Nowell requests compensatory, punitive, and special damages, as well as attorney's fees and costs, and any other relief that the Court deem appropriate. See Amended Complaint at 37.

         1. The MTD.

         The Defendants argue in the MTD that, for two independent reasons, the Court should dismiss the Amended Complaint in its entirety pursuant to rule 12(b)(6): first, applicable statutes of limitations bar each claim, and, second, the Amended Complaint relies on “labels and conclusions, ” and “a formulaic recitation of the elements of” each claim without any well-pled facts alleging a specific defect with the Defendants' product and how that defect purportedly caused Nowell's injuries. MTD at 1-2 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555). The Defendants note that two other federal courts recently dismissed “similarly deficient” complaints against the Defendants involving injuries allegedly related to Parietex mesh. MTD at 2 (citing Rincon v. Covidien, No. 16-CV-10033, 2017 WL 2242969 (S.D.N.Y. May 22, 2017)(Furman, J.); Black v. Covidien PLC, No. 17-CV-6085-FPG, 2018 WL 573569 (W.D.N.Y. Jan. 26, 2018)(Geraci, C.J.)). The Defendants add that, because Nowell “has had ample opportunity to plead her claims, ” the Court should order the case's dismissal “with prejudice.” MTD at 2. The Defendants argue that dismissal under rule 12(b)(6) is appropriate when, as in this case, “the ‘uncontroverted facts' allege ‘dates that appear, in the first instance, to fall outside the statutory limitations period.'” MTD at 6-7 (quoting Anderson Living Tr. v. WPX Energy Prod., LLC, Nos. CIV 12-0039 JB/SCY, 12-0040, 2015 WL 3543011, at *34 (D.N.M. May 26, 2015)(Browning, J.)). According to the Defendants, New Mexico's Uniform Commercial Code, N.M. Stat. Ann. § 55-2-725 (“UCC”), governs Nowell's breach-of-express and implied-warranty claims, and subjects such claims to a four-year statute of limitations period. See MTD at 7 (citing N.M. Stat. Ann. § 55-2-725(1)). Nowell's warranty claims are untimely, assert the Defendants, because such claims accrue when a given product is delivered, see MTD at 7 (citing AIG Aviation Ins. v. Avco Corp., 709 F.Supp.2d 1124, 1131-32 (D.N.M. 2010)(Black, J.)), and here Nowell alleges that her physician used the Defendants' mesh to repair her hernia on October 27, 2010, but did not file her original Complaint until October 5, 2017, which was almost three years after Nowell's putative warranty claim expired, see MTD at 7 (citing Amended Complaint ¶ 38, at 8)).

         Although the Defendants concede that plaintiffs may bring express warranty claims beyond four years from purchase “if the warranty explicitly guarantees ‘future performance, '” MTD at 7 (citing N.M. Stat. Ann. § 55-2-725(2)), the Defendants contend that the Amended Complaint does not identify an express warranty, “let alone quote language that ‘explicitly guarantees future performance' beyond four years, ” MTD at 7 (internal quotation marks omitted)(quoting Willis v. Smith, No. 16 CV 167 JAP/LF, 2016 WL 9281447, at *4 (D.N.M. Dec. 14, 2016)(Parker, J.)). Nowell, instead, according to the Defendants, merely asserts that the “Defendant made assurances . . . that the product was safe and reasonably fit for its intended purposes.” MTD at 7 (quoting Amended Complaint ¶ 141, at 34). The Defendants note, in a footnote, that the discovery rule, which tolls a cause of action until “the plaintiff discovers or with reasonable diligence should have discovered that a claim exists, ” MTD at 7 n.12 (quoting Roberts v. Sw. Cmty. Health Servs., 1992-NMSC-042, ¶ 24, 837 P.2d 442, 449), does not apply to warranty claims, see MTD at 7 n.12 (citing Porcell v. Lincoln Wood Prods., Inc., No. CIV 08-0617 MCA/LFG, 2010 WL 1541264, at *4 (D.N.M. March 31, 2010)(Armijo, J.)). The Defendants further note that implied warranties, “by their very nature, ” “do not explicitly guarantee future performance” and thus cannot be tolled pursuant to § 55-2-725(2). MTD at 7-8 (internal quotation marks omitted)(quoting AIG Aviation Ins. v. Avco Corp., 709 F.Supp.2d at 1132). Hence, the Defendants conclude, Nowell's breach-of-express and implied-warranty claims are untimely. See MTD at 8.

         The Defendants assert that Nowell's negligence and strict-liability claims are likewise untimely, because such claims are subject to a three-year statute of limitations. See MTD at 8 (citing N.M. Stat. Ann. § 37-1-8). The Defendants assert that New Mexico follows “the traditional discovery rule, ” pursuant to which a tort claim accrues at “the time of the injury not the time of the negligent act.” MTD at 8 (quoting N.M. Elec. Serv. Co. v. Montanez, 1976-NMSC-028, ¶ 13, 551 P.2d 634, 637). The Defendants assert that the discovery rule, however, does not apply in this case, because, according to the Defendants, the Amended Complaint alleges injuries that occurred more than three years before Nowell filed her original Complaint. See MTD at 8. The Defendants note that “the few facts” in the Amended Complaint include the dates of Nowell's surgeries and alleged injuries. MTD at 8. On April 27, 2010, for example, exactly six months after Nowell alleges that her physician used the Defendants' mesh to repair her hernia, Nowell had a second surgery, because the mesh allegedly “began to pull away from the actual edges.” MTD at 8 (quoting Amended Complaint ¶ 38, at 8). Thus, the Defendants argue, Nowell's Amended Complaint pleads that she was aware of a potential problem with the Defendants' mesh seven years before she filed her original Complaint. See MTD at 8. The Defendants add that Nowell, “at some point in the next three years, . . . alleges that she began to experience ‘symptoms including but not limited to exhaustion and pain in the area of the mesh.'” MTD at 8 (quoting Amended Complaint ¶ 38, at 8). Furthermore, according to the Defendants, Nowell's symptoms were “sufficiently problematic” to compel her to undergo a CT scan on March 1, 2014, which revealed “cysts in the area associated with the mesh.” MTD at 8. The Defendants assert that, because these events “are cognizable tort injuries that started the three-year limitations period, ” MTD at 9 (citing Lent v. Emp't Sec. Comm'n, 1982-NMCA-147, ¶ 27, 658 P.2d 1134, 1139 (“[K]nowledge of injury, not knowledge of the extent of the injury, is the basis for starting the running of the limitation period.”)), Nowell's negligence and strict liability claims are untimely, see MTD at 9 (citing Bassham v. Owens-Corning Fiber Glass Corp., 327 F.Supp. 1007, 1009 (D.N.M. 1971)(Payne, C.J.)(“[A]ny exposure which occurred more than three years before the filing of the action, would be barred by the statute of limitations.”)).

         The Defendants insist that tolling, “[t]he only basis for excusing this late filing, ” is unavailable to Nowell, because her Amended Complaint does not allege “reasonable diligence” sufficient “to ‘establish[] a factual basis for tolling' pursuant to the discovery rule.” MTD at 9 (alteration in MTD)(quoting Andrew v. Schlumberger Tech. Corp., 808 F.Supp.2d 1288, 1292 (D.N.M. 2011)(Browning, J.)). According to the Defendants, the discovery rule's applicability turns on whether Nowell “lacked knowledge of her cause of action and could not have discovered it by exercising reasonable diligence during the statutory period.” MTD at 9 (quoting Blea v. Fields, 2005-NMSC-029, ¶ 28, 120 P.3d 430, 440). The Defendants contend that, once Nowell began to experience pain and discomfort following the April 27, 2010, surgery, either she knew that the Defendants' mesh caused those injuries, or she had a “duty to inquire into” the cause. MTD at 9 (quoting Butler v. Deutsche Morgan Grenfell, Inc., 2006-NMCA-084, ¶ 34, 140 P.3d 532, 540 (“[T]he awareness of an injury creates a duty to inquire into its causes.”)). The Defendants argues that the Amended Complaint is devoid, however, of allegations that, had Nowell “diligently investigated the problem[, ] she would have been unable to discover the cause of her injury.” MTD at 9 (quoting Martinez v. Showa Denko, K.K., 1998-NMCA-111, ¶ 22, 964 P.2d 176, 180). Instead, the Defendants insist, the “sole allegation” offered in support of tolling is that Nowell waited over four years for her physician “to allegedly inform her that ‘there was a problem with the mesh and that it had to be removed.'” MTD at 9-10 (quoting Amended Complaint ¶ 38, at 8). The Defendants contend that Nowell's reliance on her physician's conclusion cannot support a reasonable-diligence finding, particularly in light of Nowell's factual assertions about her April, 2010, surgery and the “pain in the area of the mesh.” MTD at 10 (internal quotation marks omitted)(quoting Amended Complaint ¶ 38, at 8). Hence, the Defendants conclude, Nowell's failure to allege “reasonable diligence” precludes the discovery rule's application, and warrants dismissal of Nowell's negligence and strict liability claims. MTD at 10.

         The Defendants next turn to their argument that Nowell's claims do not satisfy the pleading standard that Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, 556 U.S. 662 (2009), require, because, according to the Defendants, the Amended Complaint pleads mere “‘labels and conclusions' instead of facts that raise a ‘plausible' claim of relief.” MTD at 10 (citing Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)). The Defendants assert that, although Nowell's six claims allege that the Defendants' mesh was defectively designed, labeled, and marketed, the Amended Complaint lacks “well-pleaded factual allegations pertaining to: (1) the nature of the alleged defect; (2) how the alleged defect caused Plaintiff's injury; and (3) the information that Plaintiff believes should have been included in the product labeling and warranty.” MTD at 10.

         Beginning with Nowell's negligence claim, the Defendants contend that, assuming they owed Nowell a duty, the Amended Complaint does not plead facts that allege a breach of that duty or proximate causation as New Mexico law requires to support such claims. See MTD at 10 (citing Bellman v. NXP Semiconductors USA, Inc., 248 F.Supp.3d 1081, 1122 (D.N.M. 2017)(Browning, J.)). The Defendants insist that Nowell's negligence claim overlaps significantly with her strict liability cause of actions and that, although negligence and strict liability are frequently asserted together, negligence is the more demanding test, and Nowell has not alleged negligence adequately. See MTD at 11 (citing Trujillo v. Berry, 1987-NMCA-072, ¶ 5, 738 P.2d 1331, 1333 (“The purpose behind the strict products liability doctrine is to allow an injured user or consumer to recover . . . without the requirement of proving negligence.”)). Specifically, the Defendants contend that Nowell has not pled any plausible facts which show how the Defendants breached their duty of care or show specific acts or omissions which fall below the “ordinary care” that “a reasonably prudent supplier would use . . . in formulating, designing, making, inspecting, testing, and packaging the product.” MTD at 11 (internal quotation marks omitted)(quoting Mims v. Davol, Inc., No. CIV 16 0136-MCA-GBW, 2017 WL 3405559, at *4 (D.N.M. March 22, 2017)(Armijo, J.)). Instead, the Defendants assert, Nowell “simply recites the cause of action, ” MTD at 11 (citing Amended Complaint ¶ 105, at 22), and asks the Court to infer a breach of duty from the fact that she allegedly suffered injuries, which, according to the Defendants, is a “post hoc ergo prompter hoc logical fallacy”[6] insufficient to maintain a negligence claim, MTD at 11-12 (citing Pac. Indem. Co. v. Therm-O-Disc, Inc., 476 F.Supp.2d 1216, 1231 (D.N.M. 2006)(Hansen, J.)(“The mere fact that the contacts on the Therm-O-Disc control fused is not enough to demonstrate that Therm-O-Disc violated its duty to use ordinary care.”)).

         Turning to Nowell's three strict liability claims -- design defect, manufacturing defect, and warning defect -- the Defendants assert that the Amended Complaint does not allege any specific defects that made the Defendants' mesh “unreasonably dangerous” and that caused Nowell's injuries. MTD at 12 (internal quotation marks omitted)(quoting Pac. Indem. Co. v. Therm-O-Disc, Inc., 476 F.Supp.2d at 1228-29). Moreover, Nowell's design defect claim, according to the Defendants, requires Nowell to allege further that “a feasible design existed which lacked the alleged design defect and would have prevented her injuries.” MTD at 12 (citing Morales v. E.D. Etnyre & Co., 382 F.Supp.2d at 1283 (“Thus, to the extent that a plaintiff could come to court and merely criticize a product, the Court believes that the New Mexico law required the plaintiff to propose an alternative design.”)). The Defendants assert that, instead of alleging a specific design feature that rendered the Defendants' mesh defective, the Amended Complaint

relies on a generalized list of alleged flaws that include: the mesh's material caused an “immune reaction”; the mesh was designed “to be inserted into and through an area of the body with high levels of bacteria that adhere to the mesh”; “[b]iomechanical issues . . . including, but not limited to, the propensity of the Product to disintegrate”; and the mesh's “inelasticity.”

MTD at 12-13 (quoting Amended Complaint ¶ 121, at 27-28). Such “vague and conclusory allegations, ” according to the Defendants, “could apply to all mesh products generally, ” and thus cannot support a plausible claim for relief against the Defendants and their particular mesh. MTD at 13. The Defendants ask, rhetorically: “What is the alleged immune reaction? What ‘inelasticity' is supposedly present?” and assert that Nowell's failure to plead a specific defect “and/or to conclude that each and every hernia mesh on the market is defective” cannot satisfy the requisite pleading standard. MTD at 13.

         The Defendants maintain that the Southern and Western Districts of New York recently dismissed claims based on similar allegations about the Defendants' Parietex Composite mesh, because, although the plaintiffs in both cases cite the mesh's design aspects, for example, “‘the hydrophilic coating' and ‘small pores and collagen, '” they do not specifically allege how the design aspects were defective or how the purported defects caused the plaintiffs' specific injuries. MTD at 13 (quoting Rincon v. Covidien, No. 16-CV-10033, 2017 WL 2242969, at *2; Black v. Covidien, PLC, No. 17-CV-6085-FPG, 2018 WL 573569, at *2). The Defendants insist that, because the same problems are true of Nowell's claims here, the Court should dismiss her design defect claim. See MTD at 13 (citing Armijo v. Ex Cam, Inc., 656 F.Supp. 771, 773 (D.N.M. 1987)(Burciaga, J.)(“Plaintiff's argument for strict liability fails on the first of these elements, that the product must be ‘defective.'”), aff'd, 843 F.2d 406 (10th Cir. 1988)).

         Regarding the alleged alternative-design pleading requirement, the Defendants assert that the Amended Complaint merely alleges alternative surgical techniques to the use of hernia mesh but not alternative designs to the Defendants' mesh. See MTD at 14. Moreover, according to the Defendants, Nowell “seems to concede that a safer hernia mesh design is not possible, ” because, although Nowell states that “[s]afer and more effective alternatives to hernia mesh exist, ” she does not identify any such alternatives and instead refers to the “Shouldice Repair, McVay Repair, Bassini Repair, and Desarda Repair” as alternatives, which the Defendants insist are surgical procedures that do not involve surgical mesh. MTD at 14 (quoting Amended Complaint ¶ 26, at 6). The Defendants insist that “a safer alternative design cannot be . . . the decision not to use a product at all.” MTD at 14 (citing S.F. v. Archer Daniels Midland Co., 594 Fed.Appx. 11, 12-13 (2d Cir. 2014)). The plaintiff in S.F. v. Archer Daniels Midland Co., according to the Defendants, alleged strict liability and negligence claims against a manufacturer stemming from its sale of and the plaintiff's consumption of high fructose corn syrup, but the plaintiff did not allege a safer alternative design for that product, instead suggesting that “[it] should not be used at all.” MTD at 14 (quoting S.F. v. Archer Daniels Midland Co., 594 Fed.Appx. at 12). In affirming the district court's dismissal of the plaintiff's claims, the United States Court of Appeals for the Second Circuit explained: “A design-defect claim will not stand if the only alternative is an outright ban.” MTD at 14 (quoting S.F. v. Archer Daniels Midland Co., 594 Fed.Appx. at 12). The Defendants contend that, like the plaintiff's insufficient allegations in S.F. v. Archer Daniels Midland Co., Nowell's failure to allege a feasible design alternative is a further basis on which the Court should dismiss her design defect claim. See MTD at 14-15 (citing Reed v. Pfizer, Inc., 839 F.Supp.2d 571, 578 (E.D.N.Y. 2012)(Vitaliano, J.)).

         The Defendants dispute that the three scientific articles which Nowell cites in her Amended Complaint support her design defect claim or provide any support for her assertion “that the type of material that was used in Parietex mesh caused infection and disintegration which resulted in pain, exhaustion, and other injuries, ” or “that the type of surgical mesh as Parietex causes similar injuries as those sustained by [Nowell].” MTD at 15 (quoting Amended Complaint ¶ 39, at 9-10). The articles instead, according to the Defendants, merely highlight the underlying risks common to all hernia repair surgeries, risks that the Defendants contend are well-known in the medical community. See MTD at 15. In a footnote, the Defendants add that the first article -- “Central Failures of Monofilament Polyester Mesh Causing Hernia Recurrence: A Cautionary Note” --examines “Parietex TCM, ” and its potential for tearing, which, the Defendants contend, is not causally connected to Nowell's main injury, that is, infection. MTD at 15 n.14 (citing C.C. Petro et. al., Central Failures of Lightweight Monofilament Polyester Mesh Causing Hernia Recurrence: A Cautionary Note, 19 Hernia 155 (2015)). Moreover, according to the Defendants, the second article -- “Postoperative Mesh Infection -- Still a Concern in Laparoscopic Era” -- summarizes published findings and mentions the Defendants' Parietex mesh only once; it says nothing about Parietex Composite. MTD at 15 n.14 (citing Rajvilas Narkhede et. al., Postoperative Mesh Infection -- Still a Concern in Laparoscopic Era, 77 Indian J. Surg. 322 (2015)). Finally, the Defendants aver, although the third article -- “Novel in Vitro Model for Assessing Susceptibility of Synthetic Hernia Repair Meshes to Staphylococcus aureus Infection” -- studies “Parietex Composite, ” it does not suggest a potential defect in the Defendants' mesh that could be causally linked to Nowell's injuries. See MTD at 15 n.14 (citing Ihab F. Halaweish et. al., Novel in Vitro Model for Assessing Susceptibility of Synthetic Hernia Repair Meshes to Staphylococcus aureus Infection Using Green Fluorescent Protein-labeled Bacteria and Modern Imaging Techniques, 11 Surgical Infections 449 (2010)). None of the articles, argue the Defendants, demonstrate or even suggest that the Defendants' Parietex Composite Mesh caused Nowell's injury or provide any factual support for Nowell's assertion that “[t]his article arguably proves that Parietex mesh causes harmful bacterial infections.” MTD at 15 (citing Amended Complaint ¶ 39, at 10).

         Turning to Nowell's manufacturing defect claim, the Defendants assert that New Mexico law requires Nowell to prove that the Defendants' mesh came “‘off the assembly line with a manufacturing defect' that caused it to ‘depart[] from its intended design, '” MTD at 15-16 (alteration in MTD)(quoting Parker v. St. Vincent Hosp., 1996-NMCA-070, ¶ 14, 919 P.2d 1104, 1108), and thus, in contrast to a design defect claim, Nowell must allege and prove that a deviation from the intended design -- as opposed to a defect in the design itself -- caused her injuries, see MTD at 16. The Defendants maintain that Nowell's assertion, that the mesh “deviated materially from the Defendants' design and manufacturing specifications, ” MTD at 16 (quoting Amended Complaint ¶ 125, at 29), is merely a “‘formulaic recitation of the elements of [the] cause of action' without any corresponding factual support, ” MTD at 16 (alteration in MTD)(quoting Ashcroft v. Iqbal, 556 U.S. at 678). The Defendants urge the Court to dismiss Nowell's manufacturing defect claim, because the Amended Complaint does not identify a specific defect imparted during the manufacturing process that caused the mesh implanted in Nowell “to depart from its FDA-cleared design and performance standards, or from other Parietex mesh products manufactured by Defendants.” MTD at 16.

         Nowell's third strict liability claim, her failure-to-warn claim, according to the Defendants, requires her to prove not only that “(1) no warning was provided or the warning was inadequate; and (2) the inadequacy or absence of the warning caused the plaintiff's injury, ” MTD at 16 (quoting Silva v. Smithkline Beecham Corp., No. 31, 276, 2013 WL 4516160, at *3 (N.M. Ct. App. Feb. 7, 2013)), but also, pursuant to the learned-intermediary doctrine, [7] that a proper warning would have altered her physician's decision to use the Defendants' mesh, see MTD at 16-17 (citing Silva v. Smithkline Beecham Corp., No. 31, 276, 2013 WL 4516160, at *3). In a footnote, the Defendants note that the Court previously declined to apply the learned-intermediary doctrine to a failure-to-warn claim, see MTD at 17 n.15 (citing Rimbert v. Eli Lilly & Co., 577 F.Supp.2d 1174, 1226 (D.N.M. 2008)(Browning, J.)), but suggest that, because the Court of Appeals of New Mexico has since applied the learned-intermediary doctrine to such a claim, and because the Supreme Court of New Mexico has not decided the issue, the intermediate court's decision may “prove helpful” in predicting how the state supreme court would decide the issue, MTD at 17 n.15 (quoting Am. Fire & Cas. Co. v. BCORP Canterbury at Riverwalk, LLC, 282 Fed.Appx. 643, 648 (10th Cir. 2008)). The Defendants insist that the Amended Complaint does not allege facts pertaining to these elements; for example, instead of alleging specific statements, so that the Court could evaluate the statements' sufficiency, Nowell asserts a list of warnings that, in her opinion, the Defendants should have provided. See MTD at 17 (citing Amended Complaint ¶ 129, at 30- 31). This list, according to Defendants, “could apply to any number of medical products, ” MTD at 17; it does not describe “a specific risk of harm” attendant to a defect known to the Defendants, MTD at 17 (quoting Golden v. Brown, No. 17CV30568, 2017 WL 3272368, at *5 (Colo. Dist. Ct. June 27, 2017)). Moreover, the Defendants assert, Nowell has alleged merely that the “Defendants did not adequately warn the Plaintiff, ” MTD at 17 (quoting Amended Complaint ¶ 129, at 30), and not that a proper warning would have altered her physician's decision to use the Defendants' mesh and thereby prevented her injuries, see MTD at 17-18 (citing Silva v. Smithkline Beecham Corp., No. 31, 276, 2013 WL 4516160, at *3 (“Plaintiffs must show that adequate warnings would have altered Dr. Lopez-Colberg's decision to treat Patient with Paxil or its generic equivalent.”)). The Defendants add that the Amended Complaint does not include “[a]ny allegation that Plaintiff's physicians were not aware of the purported ‘dangerous condition' and, more essentially, would not have utilized Defendants' product had they been adequately warned.” MTD at 18 (citing Tapia v. Davol, Inc., 116 F.Supp.3d 1149, 1158-59 (S.D. Cal. 2015)(Curiel, J.)(“Plaintiff has failed to allege that Defendants failed to warn his prescribing physician and failed to allege that if his prescribing physician had been warned, then he would not have prescribed the [Defendants' hernia repair patch] to Plaintiff.”)). Furthermore, the Defendants contend, the pain-and-infection risks associated with hernia repair surgery, regardless whether mesh is used, “were well known in the medical community at the time of Plaintiff's surgery, ” MTD at 18, as the FDA's inclusion of “pain, infection, hernia recurrence, [and] scar-like tissue” in its list of inherent hernia surgery risks confirms. MTD at 18 (emphasis in MTD)(internal quotation marks omitted)(quoting Hernia Surgical Mesh Implants, FDA, https://www.fda.gov/MedicalDevices/ProductsandMedicalProced ures/ImplantsandProsthetics/HerniaSurgicalMesh/default.htm (last visited Feb. 4, 2018)). The Defendants add that the scientific articles cited in the Amended Complaint discuss the general infection risks associated with all hernia surgery repair, which further evidences the medical community's general awareness of such risks. MTD at 18.

         Regarding Nowell's breach-of-express-warranty claim, the Defendants argue that New Mexico's UCC requires Nowell to prove that the Defendants' “(1) ‘made an[] express affirmation or representation . . . regarding' the product; (2) the product deviated from the express warranty; and (3) that deviation caused plaintiff's injuries, ” and contend that Nowell's Amended Complaint neither alleges facts pertaining to these three elements nor identifies a specific warranty that is purportedly deficient, MTD at 17-18 (alteration in MTD)(quoting Bellman v. NXP Semiconductors USA, Inc., 248 F.Supp.3d at 1153). Nowell's only allegations, according to the Defendants, are boilerplate recitations of the cause of action, such as “Defendant expressly warranted [the mesh] to be safe and effective for consumers like Plaintiff, ” MTD at 19 (internal quotation marks omitted)(quoting Amended Complaint ¶ 147, at 34-35), which courts “routinely dismiss” as insufficiently pled, MTD at 19 (citing Bellman v. NXP Semiconductors USA, Inc., 248 F.Supp.3d at 1153 (“Indeed, aside from perfunctorily alleging in the Complaint that Rinchem Co. ‘expressly' warranted the chemicals that it supplied . . . Plaintiffs never explain the manner in which Rinchem Co. made such a warranty or identify the warranty's precise terms.”); Hammonds v. Bos. Sci., Inc., No. CIV-11-0663-HE, 2011 WL 4978369, at *2 (W.D. Okla. Oct. 19, 2011)(Heaton, J.)(“[H]er amended complaint still fails to identify what warranties and misrepresentations were made.”)). Without alleging a specific warranty's contents, the Defendants contend, neither the Defendants nor the Court can evaluate its sufficiency. See MTD at 19 (citing Bellman v. NXP Semiconductors USA, Inc., 248 F.Supp.3d at 1153 (“[T]he Court cannot conclude . . . that [the defendant] made any express warranty, nor can it conclude, absent knowledge of the alleged warranty's terms, whether [defendant] breached those terms.”)). The Defendants add that the Honorable Christina Armijo, United States District Judge for the District of New Mexico, “dismissed a nearly identical breach of express warranty claim” in Mims v. Davol, Inc., MTD at 19 (citing Mims v. Davol, Inc., 2017 WL 3405559, at *6), and thus the Court should likewise dismiss Nowell's breach-of-express-warranty claim against the Defendants.

         Considering Nowell's breach-of-implied-warranty claim, the Defendants assert that the Amended Complaint neither alleges a claim for breach of implied warranty of fitness for a particular purpose nor facts pertaining to each element of Nowell's implied-warranty-of-merchantability claim, which are the only claims for breaches of implied warranties that New Mexico's UCC permits. See MTD at 20 (citing N.M. Stat. Ann. §§ 55-2-314 to -315). The Defendants note that the Amended Complaint does not mention the phrase “particular purpose” but instead alleges that the Defendants' mesh was not “merchantable, ” which the Defendants contend is a distinct and independent implied warranty. MTD at 20 (citing Amended Complaint ¶¶ 152, at 35; 154, at 35; 155, at 35-36; 159, at 36; 162, at 36-37)). The Defendants add, in a footnote, that, although the Amended Complaint also alleges that the mesh was not “fit for the ordinary purposes for which” it was sold, MTD at 20 n.17 (quoting Amended Complaint ¶ 152, at 35), that this phrase is included in the statutory definition of “merchantable, ” MTD at 20 n.17 (citing N.M. Stat. Ann. § 55-2-314(2)(c) (“Goods to be merchantable must be at least such as . . . are fit for the ordinary purposes for which such goods are used.”)).

         The Defendants contend that, to maintain a claim for breach of the implied warranty of merchantability, Nowell must prove that “the seller sold goods or products that fail to meet the statutory definition of merchantable, ” MTD at 20 (internal quotation marks omitted)(quoting Bellman v. NXP Semiconductors USA, Inc., 248 F.Supp.3d at 1126), which “resembles ordinary products liability claims” in that the claimant must provide “proof of a defect, ” Bellman v. NXP Semiconductors USA, Inc., 248 F.Supp.3d at 1155 (internal quotation marks omitted)(quoting Pac. Indem. Co. v. Therm-O-Disc, Inc., 476 F.Supp.2d at 1225). Hence, the Defendants conclude, the Court should dismiss Nowell's claim for breach of the implied warranty of merchantability for the same reasons as the Court should dismiss her strict-liability and negligence claims -- the Amended Complaint does not sufficiently allege a defect that renders the Defendants' mesh “unreasonably dangerous” and caused her injuries. MTD at 20-21 (internal quotation marks omitted)(quoting Perfetti v. McGhan Med., 1983-NMCA-032, ¶ 45, 662 P.2d 646, 654 (“In this case the identical defect is relied on for both products liability and breach of the implied warranty of merchantability.”)).

         The Defendants insist that, as with Nowell's substantive causes of action, the Court should deny her request for punitive damages, because the Amended Complaint does not allege the requisite corresponding factual allegations to support a finding of the requisite scienter for punitive damages. See MTD at 21. Instead, according to the Defendants, the Amended Complaint “simply recites the standard for punitive damages, ” MTD at 21 (citing Amended Complaint ¶ 102, at 22 (“Defendant's conduct as described herein shows willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which raises the presumption of conscious indifference to consequences, thereby justifying an award of punitive damages.”)), which is the kind of “unadorned, the-defendant-unlawfully-harmed-me accusation” that Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal foreclose, MTD at 21 (internal quotation marks omitted)(internal quotation marks omitted)(quoting Ashcroft v. Iqbal, 556 U.S. at 678).

         2. The MTD Response.

         Nowell responds to the Defendants' MTD. See Plaintiff's Response to Defendants Motion to Dismiss, filed April 16, 2018 (Doc. 30)(“MTD Response”). Nowell argues that the Court either should deny the MTD or should treat the MTD as a motion for summary judgment pursuant to rule 12(d). See MTD Response at 2. Nowell begins by summarizing the pleading standard that the Supreme Court describes in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, see MTD Response at 2 (citing Ashcroft v. Iqbal, 556 U.S. at 675; Bell Atlantic Corp. v. Twombly 550 U.S. at 570), and notes that this standard does not require complaints to include “all the factual allegations necessary to sustain a conclusion that defendant violated clearly established law, ” MTD Response at 2-3 (quoting Breidenbach v. Bolish, 126 F.3d 1288, 1293 (10th Cir. 1997)). Nowell insists that, in Currier v. Doran, 242 F.3d 905 (10th Cir. 2001), the United States Court of Appeals for the Tenth Circuit concluded that the Supreme Court “superseded” such a requirement with its decision in Crawford-El v. Britton, 523 U.S. 574 (1998), MTD Response at 3 (citing Currier v. Doran, 242 F.3d at 916), and that Bell Atlantic Corp. v. Twombly articulates merely a “minimal standard of notice pleading.” MTD Response at 3. Nowell adds, in a footnote, that this “general or ‘notice' pleading, rather than detailed pleading” compels courts to construe liberally a plaintiff's allegations. MTD Response at 3 (citing Johnson v. City of Shelby, 135 S.Ct. 346, 347, (2014)).

         Nowell next asserts that the Amended Complaint contains “good faith” causes of action “supported by a) Ms. Nowell's surgeon; b) the scientific literature; and c) common sense.” MTD Response at 3 (footnotes omitted)(citing Amended Complaint ¶ 38-39, at 8-11). Nowell contends that her allegations sufficiently notify the Defendants that scientific arguments support her liability theories. See MTD Response at 3. According to Nowell, such arguments include that the mesh material “was hazardous due to its incompatibility with human tissue” and “was dangerous because it was unreasonably susceptible to mechanical failure.” MTD Response at 3. Nowell argues that “the hazardous materials” used to manufacture the Defendants' mesh caused the mesh's disintegration and Nowell's infection. MTD Response at 3-4. Nowell adds that she will develop her “scientific arguments” after discovery and expert witness evaluation. MTD Response at 4. Nowell has not retained an expert witness to develop her scientific arguments, she asserts, because the Amended Complaint provides adequate notice of her claims' plausibility. See MTD Response at 4. Nowell adds that the Defendants will have an opportunity to refute her “scientific claims, ” but that “such arguments are largely premature at this stage because the factual evidence has not been developed through discovery.” MTD Response at 4.

         Nowell asserts that New Mexico products liability law recognizes “claims sounding in common law negligence and in strict liability, ” and that the Amended Complaint includes claims that arise under these theories. MTD Response at 5 (citing Parker v. St. Vincent Hosp., 1996-NMCA-070, ¶ 14, 919 P.2d at 1108). She then recites a negligence claim's elements and asserts that she established the first element, “the existence of a duty owed to the Plaintiff, ” in paragraphs 11, 12, and 27; the second element, “a breach of that duty, ” in paragraphs 36, 38, and 41-45; the third element, “a causal connection between the Defendants' conduct and her injuries” in paragraphs 22, 23, 36, 38-40, 46, and 49-51; and the fourth element, “damages” resulting from the Defendants' conduct, in paragraphs 69, 85, 102, 109, 118-19, 122, 126, 130, 138, 146, 157, 162, and in the requested relief on page thirty-seven. MTD Response at 5-6 (citing Parker v. E.I. DuPont de Nemours & Co., 1995-NMCA-086, ¶ 35, 909 P.2d 1, 11).

         According to Nowell, the Amended Complaint alleges in paragraph 86 that the condition of the Defendants' mesh resulted in “an unreasonable risk of injury.” MTD Response at 6 (internal quotation marks omitted)(quoting Smith ex rel. Smith v. Bryco Arms, 2001-NMCA-090, ¶ 13, 33 P.3d 638, 644). Nowell maintains that, in paragraphs 11, 12, and 27, the Amended Complaint establishes the Defendants as the mesh's manufacturer and distributor, and, in paragraphs 42, 68, 52(b), 7173, 83, 86(2), 86(3), 87, 95, 104, 105, 106, 111, 116, 121, 123, 125, 127, and 131, that the Defendants neither designed nor manufactured the mesh with “ordinary care.” MTD Response at 6.

         Nowell asserts that she “placed the Defendants on notice of her general strict liability claims, ” because her Amended Complaint alleges:

(1) the product was defective (See, Amended Complaint ¶¶38, 41, 42, 47, 50, 52),
(2) the product was defective when it left Defendants' hands (See, ¶60), and it was substantially unchanged when it reached the consumer (See, ¶60); (3) that because of the defect the product was unreasonably dangerous to the consumer (See, ¶86); (4) that the consumer was injured or damaged (See, ¶¶38, 40); and (5) the defective product was the proximate cause of the injury or damage (See, ¶¶22, 23, 39, 47, 49, 50, 51).

         MTD Response at 7 (citing Garner v. Raven Indus., Inc., 732 F.2d 112, 114 (10th Cir. 1984)).

         Nowell avers that “[a]n unreasonable risk of injury is a risk a reasonably prudent person having full knowledge of the risk would find unacceptable, ” MTD Response at 7 (internal quotation marks omitted)(quoting Smith ex rel. Smith v. Bryco Arms, 2001-NMCA-090, ¶ 13, 33 P.3d at 644), and that the test for such risk “allows for proof and argument under any rational theory of defect, ” MTD Response at 7 (quoting Smith ex rel. Smith v. Bryco Arms, 2001-NMCA-090, ¶ 14, 33 P.3d at 644), of which New Mexico recognizes three: manufacture, design, and failure-to-warn, see MTD Response at 7 (citing Fernandez v. Ford Motor Co., 1994-NMCA-063, ¶ 26, 879 P.2d 101, 110). According to Nowell, the Amended Complaint sufficiently alleges her strict-liability claims and any deficiency “results not from the fault of Ms. Nowell, but from her inability to gather information from the Defendants at this pre-discovery stage.” MTD Response at 7-8.

         Nowell quotes from New Mexico's Civil Uniform Jury Instructions (“Civ. UJI”) to support her assertion that she may prove causation so long as the defective product contributes to the injury; “[i]t need not be the only explanation . . . nor the reason that is nearest in time or place.” MTD Response at 8 (quoting Civ. UJI 13-1424). Moreover, Nowell avers, she may prove causation for her failure-to-warn claim by showing that “an adequate warning would have been noticed and acted upon to guard against the danger.” MTD Response at 8 (quoting Civ. UJI 13-1425).

         According to Nowell, the Amended Complaint alleges causation specifically in paragraph 38, wherein she states that the “Plaintiff underwent surgery during which the surgeon, Dr. William Pollard, removed an infected and disintegrated Parietex mesh in Plaintiff's abdomen.” MTD Response at 8 (citing Amended Complaint ¶ 38, at 8). Nowell adds that paragraph 38 alleges that she “experienced pain in the area of the mesh and exhaustion, ” and that the mesh “also caused Plaintiff to undergo multiple surgical interventions.” MTD Response at 8 (citing Amended Complaint ¶ 38, at 8). Moreover, adds Nowell, paragraph 46 alleges that the mesh “was made from material that is both biologically incompatible with human tissue and susceptible to mechanical failure, ” which, “when implanted in the human body, . . . promotes (and in Ms. Nowell['s] case it promoted) infection and disintegration.” MTD Response at 8-9 (citing Amended Complaint ¶ 46, at 12). Nowell insists that paragraph 38 contains “scientific references” which show that “non-biologically compatible Paritex mesh” causes the type of injuries that Nowell suffered, i.e., “disintegration and infection.” MTD Response at 9 (citing Amended Complaint ¶ 38, at 8).

         Regarding her failure-to-warn claim, Nowell maintains that the allegations in the Amended Complaint are sufficient, because paragraph 67 states that the “‘Defendants failed to provide sufficient warnings' . . . to put Ms. Nowell ‘on notice of the dangers and adverse effects caused by implantation of the Product'” and because paragraph 70 states that the Defendants marked the mesh “as safe” and as “free from the kinds of risks and hazards that the [Product] actually posed.” MTD Response at 9 (alteration in MTD Response)(citing Amended Complaint ¶ 70, at 17). Further support for this claim, according to Nowell, is seen in paragraph 139, which states that “[b]ut for the Defendants' failure-to-warn, the Plaintiff would not have sustained [the alleged] injuries, ” MTD Response at 9 (citing Amended Complaint ¶ 139, at 33), paragraph 138, which states that Nowell's injuries “would not have occurred if adequate warning and instruction had been provided, ” MTD Response at 9 (citing Amended Complaint ¶ 138, at 33), and paragraph 129, which states that the Defendants' “failure to warn caused . . . Plaintiff not to be aware of the defects [that] cause her injury, ” MTD Response at 9 (alteration in MTD Response)(citing Amended Complaint ¶ 129, at 30)). According to Nowell, these allegations are sufficient for a reasonable jury to find that, had the Defendants warned Nowell of the mesh's “actual risks, ” “she would have declined to have it surgically implanted in her body.” MTD Response at 9.

         Nowell concedes that she has not obtained information regarding the mesh's “exact manufacturing process and specific warranty language, ” but insists that this information is within the Defendants' “exclusive control.” MTD Response at 9. Hence, Nowell requests the Court's permission to amend further the Amended Complaint “once this information becomes available through the discovery process.” MTD Response at 10.

         Nowell next responds to the Defendants' averment that “significant overlap” exists between Nowell's negligence and strict-liability claims, and asserts that “this overlap results from the similarity of elements between the two causes of action.” MTD Response at 10 (citing MTD at 11). Nowell argues that the “breach” and “defect” elements in a strict liability claim, and in a negligence claim, respectively, are “closely related, ” because both elements “require an unreasonable departure from ordinary care.” MTD Response at 10. Nowell adds that “causation” is another element that strict liability and negligence claims share, because “products liability law evolved from negligence law.” MTD Response at 10 (citing MacPherson v. Buick Motor Co., 217 N.Y. 382, 382 (N.Y. 1916)(Cardozo, J.)). Nowell suggests that the Court should focus on whether the Amended Complaint adequately places the Defendants on notice of her claims and not whether such claims overlap. See MTD Response at 10.

         Nowell disputes the Defendants' contention that she engaged in a “post hoc ergo prompter hoc logical fallacy, ” because her causation theories are “based on scientific research.” MTD Response at 10-11 (citing MTD at 11). Nowell further disputes the Defendants' contention that she “seems to concede that a safer hernia mesh design is not possible, ” because the Amended Complaint alleges that the Defendants should have made their mesh from “biologically compatible” material that “was not susceptible to mechanical failure” and that “it is allegedly possible to manufacture a product with these attributes.” MTD Response at 11 (citing MTD at 14). Nowell asserts that her punitive damages request is not an allegation that the Court can dismiss for failure to state a claim upon which relief can be granted, because, according to Nowell, the Tenth Circuit has concluded that a punitive damages claim is “part and parcel of a liability determination, ” and “does not have any independent being until a jury has decided, based on the preponderance of the evidence, that not only was a defendant's conduct negligent, but that it was gross, willful, wanton or malicious.” MTD Response at 11 (internal quotation marks omitted)(quoting Mason v.Texaco, Inc., 948 F.2d 1546, 1554 (10th Cir. 1991)). Moreover, Nowell argues that the Amended Complaint alleges, in paragraphs 85, 91, 98, 102, 114, 119, 139, and 162, conduct that qualifies for punitive damages. MTD Response at 12.

         Nowell next disputes the Defendants' allegations that she did not bring her claims within the applicable statutes of limitations, because, according to Nowell, the discovery rule tolls the limitations period and she did not discover that the Defendants' mesh was causing her injury until October 8, 2014, when Dr. Pollard advised her “for the first time that there was a problem with the mesh and that it had to be removed.” MTD Response at 12-13 (citing Williams v. Stewart, 2005-NMCA-061, ¶ 10, 112 P.3d 281, 285). Nowell asserts that Martinez v. Showa Denko, K.K., 1998-NMCA-111, 964 P.2d 176, wherein the Court of Appeals of New Mexico stated that, under the discovery rule, the statute of limitations is triggered when the plaintiff “acquires knowledge of facts, conditions, or circumstances which would cause a reasonable person to make an inquiry leading to the discovery of the concealed cause of action, ” further supports her position. MTD Response at 13 (internal quotation marks omitted)(quoting Martinez v. Showa Denko, K.K., 1998-NMCA-111, ¶ 24, 964 P.2d at 182). Nowell adds that the October 6, 2014, CT scan, attached to the MTD Response as Exhibit B, and which Dr. Pollard memorialized in his clinic notes, attached to the MTD Response as Exhibit A, informed Dr. Pollard's decision to remove the mesh. See MTD Response at 13.

         Nowell concedes that she was skeptical about the mesh's safety before October 8, 2014, but relied on Dr. Pollard's opinion that the mesh was not her symptoms' source. See MTD Response at 14. Hence, Nowell argues that it would have been unreasonable for her to assume that the mesh was the cause of her symptoms until October 8, 2014, which, according to Nowell, the Amended Complaint alleges in paragraph 38. See MTD Response at 13-14. Nowell adds that her April 16, 2018, declaration, attached to the MTD Response as Exhibit C, further alleges these facts. See MTD Response at 14. Nowell therefore maintains that, because she acquired “sufficient knowledge to pursue a cause of action” on October 8, 2014, and because she filed her original Complaint on October 5, 2017, she brought this action within the statute of limitations. MTD Response at 14. Nowell adds that, although she has “presented matters outside the pleadings in the form of three exhibits, ” MTD Response at 14, the exhibits rebut the Defendants' assertion that “uncontroverted facts” show that Nowell filed her claim outside the statute of limitations. MTD Response at 14 (quoting MTD at 6). Nowell requests that, should the Court consider her exhibits, the Court treat the MTD as a motion for summary judgment pursuant to rule 12(d) of the Federal Rules of Civil Procedure. See MTD Response at 15 (citing Fed.R.Civ.P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.”)).

         3. The MTD Reply.

         The Defendants reply to the MTD Response. See Reply in Support of Defendants' Motion to Dismiss, filed May 4, 2018 (Doc. 32)(“MTD Reply”). In the MTD Reply, the Defendants assert that the Court should grant the MTD, because the MTD Response does not identify well-pled allegations which could support the elements necessary to prove Nowell's claims, and because it confirms that the statutes of limitations bar Nowell's claims. See MTD Reply at 1. The Defendants repeat their argument that the “uncontroverted facts” establish that the applicable statutes of limitations bar Nowell's claims, which warrant dismissal pursuant to rule 12(b)(6). MTD Reply at 1 (quoting Anderson Living Tr. v. WPX Energy Prod., LLC, 2015 WL 3543011, at *34). The Defendants contend that the MTD Response does not address the Defendants' argument that Nowell's warranty claims are untimely, “and thus concedes the point.” MTD Reply at 1 (citing MTD at 7; Pennington v. Northrop Grumman Space & Mission Sys. Corp., 269 Fed.Appx. 812, 820 (10th Cir. 2008)). Nowell's claims are untimely, argue the Defendants, because the discovery rule is inapplicable, see MTD Reply at 2 (citing N.M. Stat. Ann. § 55-2-725), and because Nowell filed suit on October 5, 2017, which is outside the statutorily permitted four-year period to bring a warranty claim arising from her October 27, 2010 surgery, see MTD Reply at 2 (citing Porcell v. Lincoln Wood Prods., Inc., 2010 WL 1541264, at *4).

         The Defendants reassert that Nowell's negligence and strict liability claims are also untimely, because such claims carry a three-year statute of limitations period, and because Nowell did not file suit “until almost seven years” after her October 27, 2010, surgery. MTD Reply at 2. Defendants dispute that Nowell can salvage her claims “by contending that she ‘did not reasonably discover that the Parietex was causing her injuries until October 8, 2014, '” MTD Reply at 2 (quoting MTD Response at 13), because she acknowledges that she underwent a second surgery on April 27, 2011, after the Defendants' mesh “allegedly ‘began to pull away from the actual edges, '” MTD Reply at 2 (emphasis in MTD Reply)(quoting Amended Complaint ¶ 38, at 8). The Defendants aver, in a footnote, that, although the MTD Response alleges that Nowell's physician “affirmatively told her that there was not a problem with the mesh” and specifically advised her that the mesh “was not causing her symptoms, ” MTD Reply at 2 n.1 (quoting MTD Response at 14), the Amended Complaint alleges only that, following her April 27, 2011, surgery, “she was ‘not informed by the doctor that there was any problem with the mesh itself,' . . . and that ‘[b]etween April 27, 2011 and March 1, 2014,' she was ‘not advised that [her symptoms] were caused by the mesh, '” MTD Reply at 2 n.1 (emphasis and alterations in MTD Reply)(quoting Amended Complaint ¶ 38, at 8). The Defendants contend that, if Nowell's “new claims” about her physician's statements are true, they “raise serious questions” about Nowell's ability to establish causation. MTD Reply at 2 n.1. The Defendants contend that Nowell had the “knowledge of facts, conditions, or circumstances” to cause a “reasonable person to make an inquiry” whether the mesh caused her injuries more than six years before she filed suit. MTD Reply at 2-3 (internal quotation marks omitted)(quoting Butler v. Deutsche Morgan Grenfell, Inc., 2006-NMCA-084, ¶ 34, 140 P.3d at 540).

         Nowell's duty to inquire “only intensified, ” the Defendants insist, because, “[b]etween April 27, 2011 and March 1, 2014, [Nowell] began experiencing symptoms including but not limited to exhaustion and pain in the area of the mesh.” MTD Reply at 3 (emphasis in MTD Reply)(internal quotation marks omitted)(quoting Amended Complaint ¶ 38, at 8). The Defendants assert that the Amended Complaint does not allege why Nowell did not ensure whether the mesh was sufficiently defective to file suit at the time of her April 27, 2011, surgery or in the three years between that surgery and her March, 2014, CT scan, i.e., allegations “that if she had diligently investigated the problem she would have been unable to discover the cause of her injury.” MTD Response at 3 (internal quotation marks omitted)(quoting Martinez v. Showa Denko, K.K., 1998-NMCA-111, ¶ 22, 964 P.2d at 180). Hence, the Defendants conclude that the Amended Complaint does not allege facts that could toll Nowell's negligence and strict liability claims. See MTD Reply at 3.

         The Defendants argue that the three exhibits which Nowell attaches to the MTD Response “show a lack of respect for the pleadings requirements of the federal rules, ” given that Nowell has had three opportunities -- “an initial complaint and two amended pleadings” -- to raise the fact issues that Nowell's exhibits address. MTD Reply at 3. Nonetheless, the Defendants assert, the first two exhibits, the CT scan and physician's notes, are irrelevant, because they relate to Nowell's 2014 surgery, which occurred after the statute of limitations had run. See MTD Reply at 3. The Defendants contend that the Court cannot consider Nowell's exhibits, see MTD Reply at 3 (citing Great Am. Ins. Co. v. Crabtree, No. CIV 11-1129 JB/KBM, 2012 WL 3656500 at *21 (D.N.M. Aug. 23, 2012)(Browning, J.)(citing Casanova v. Ulibarri, 595 F.3d 1120, 1125 (10th Cir. 2010)), but even if it could, “they do not address the fact that she was on discovery notice prior to the expiration of the statute of limitations in October 2013, ” MTD Reply at 4. The Defendants add that the Court likewise cannot consider the Declaration of Janice Nowell, filed April 16, 2018 (Doc. 30-3)(“Nowell Affidavit”), in which she alleges that her physician told her that the pain in the area around her mesh did not relate to the mesh itself. See MTD Reply at 4 (citing Anderson Living Tr. v. WPX Energy Prod., LLC, 2015 WL 3543011, at *13; Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1261 (D.N.M. 2010)(Browning, J.), aff'd, 499 Fed.Appx. 771 (10th Cir. 2012)). Even if the Court could consider the Nowell Affidavit, according to the Defendants, the Nowell Affidavit does not save Nowell's time-barred claims, because Dr. Pollard's diagnosis either was true, which would negative Nowell's claims, or was a misdiagnosis, which would not relieve Nowell of her responsibility to pursue her symptom's cause. See MTD Reply at 4 (citing Robinson v. BNSF Ry. Co., No. 11-2464-JWL, 2012 WL 4747155, at *4 (D. Kan. Oct. 4, 2012)(Lungstrum, J.)(“[A] misdiagnosis does not relieve a patient of all responsibility in pursuing the cause of her symptoms, and continued reliance on a misdiagnosis in the face of contrary evidence may be unreasonable.”), aff'd sub nom. Robinson v. BNSF Ry. Co., 553 Fed.Appx. 792 (10th Cir. 2014)). Here, according to the Defendants, Nowell cannot rely on her physician's alleged misdiagnosis to toll her claims, because she “affirmatively alleges” that she had surgery to repair the mesh within a year of its implantation and that she continued to suffer pain in the area around the mesh for three additional years. MTD Reply at 4-5.

         The Defendants contend that Nowell's request that the Court exercise its discretion to accept her exbibits and to treat the MTD as a motion for summary judgment pursuant to rule 12(d) is moot, because, “even if considered, they do not save her claims.” MTD Reply at 5. Moreover, the Defendants insist, rule 12(d) permits the conversion that Nowell requests “only if ‘all parties [are] given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.'” MTD Reply at 5 (quoting Fed. R. Civ. P 12(d)). In contrast to Nowell's “repeated opportunities to include all necessary and relevant information” in the Amended Complaint, the Defendants assert that they have not had the opportunity to discover material germane to a rule 56 motion, and that, for this reason, the Court should deny Nowell's request for a rule 12(d) conversion. See MTD Reply at 5. Should the Court convert the MTD into a motion for summary judgment, the Defendants request the opportunity to obtain discovery “limited to the statute of limitations issue, before the Court considers the motion.” MTD Reply at 5 (emphasis in MTD Reply).

         Turning to Nowell's negligence claim, the Defendants argue that the MTD Response does not identify any well-pled facts in the Amended Complaint which allege that the Defendants breached a duty that caused Nowell's injuries. See MTD Reply at 6. The Defendants dispute that Breidenbach v. Bolish and Currier v. Doran support Nowell's pleading standards assertions, because those cases, according to the Defendants, discuss pleading requirements only in the qualified-immunity context, “which obviously has no bearing in this case.” MTD Reply at 6 n.3 (citing MTD Response at 3). The Defendants add that none of Nowell's pleadings refer to “any specific acts or omissions” which suggest that the Defendants breached their duty of care to Nowell but instead provide “general allegations” that the Defendants did not properly inspect, test or package the mesh “without specifying how the inspections, testing, or packaging failed to satisfy a manufacturer's duty to exercise ordinary care.” MTD Reply at 6 (emphasis in MTD Reply)(citing Mims v. Davol, Inc., 2017 WL 3405559, at *4). The Defendants insist that, because the FDA has never recalled any of their mesh products, the Amended Complaint's lack of allegations as to how the Defendants breached their duty is “especially problematic.” MTD Reply at 7.

         The Defendants reassert their dispute that the three scientific articles which the Amended Complaint cites support Nowell's causation theories, because these articles do not suggest that the Defendants' mesh caused Nowell's injuries. See MTD Reply at 7. According to the Defendants, each article focuses on well-known risks attendant to all hernia surgeries. See MTD Reply at 7. The Defendants assert that Nowell “misses the point” when she contends that the overlap between her negligence and strict liability claims “arises from the ‘similarity of elements between the two causes of action, '” because the Defendants' argument is that pleading negligence requires more than pleading strict liability, and it therefore follows that, because Nowell has inadequately pled strict liability, the Court should dismiss her negligence claims. MTD Reply at 8 (quoting MTD Response at 10).

         According to the Defendants, Nowell's strict liability claims for design defect and for failure-to-warn both require pleading that the mesh was “‘defective' and ‘unreasonably dangerous, '” but Nowell has neither pled a specific defect in the Defendants' mesh design, nor a feasible design alternative that lacked the defect and that would have prevented her injuries. MTD Reply at 8 (citing Morales v. E.D. Etnyre & Co., 382 F.Supp.2d at 1283 (“Thus, to the extent that a plaintiff could come to court and merely criticize a product, the Court believes that the New Mexico law required the plaintiff to propose an alternative design.”)). The Defendants note that the MTD Response proposes a design alternative “made from a material that a) was biologically compatible; and b) was not susceptible to mechanical failure, ” and assert that, even if Nowell includes this allegation in her Amended Complaint, which the Defendants contend she does not, the inclusion does not answer what alternative design is allegedly compatible with Nowell's specific biology and not susceptible to mechanical failure. MTD Reply at 9 (internal quotation marks omitted)(quoting MTD Response at 11). The Defendants repeat their argument that Nowell has not pled facts sufficient to satisfy the elements of a failure-to-warn claim, because her allegations do not “disclose the nature and extent of the danger” about which the Defendants should have warned. MTD Reply at 10 (quoting Jones v. Minnesota Min. & Mfg. Co., 1983-NMCA-106, ¶ 32, 669 P.2d 744, 750 (“A warning, to be adequate, must disclose the nature and extent of the danger.”)). Furthermore, the Defendants continue, Nowell has not pled facts to indicate that “proper warnings” would have altered her physician's treatment decisions. MTD Reply at 10 (citing Silva v. Smithkline Beecham Corp., 2013 WL 4516160, at *3 (“Plaintiffs must show that adequate warnings would have altered Dr. Lopez-Colberg's decision to treat Patient with Paxil or its generic equivalent.”); Black v. Covidien PLC, No. 17-CV-6085-FPG, 2018 WL 573569, at *4)).

         The Defendants insist that Nowell concedes that she has insufficiently pled her manufacturing defect and warranty claims when she states that “despite due diligence she has been unable to obtain information pertaining to the exact manufacturing process and specific warranty language.” MTD Reply at 10 (quoting MTD Response at 9). In response to Nowell's assertion that the information necessary to plead her claims is within the Defendants' exclusive control, and “will be developed after discovery is complete and an expert witness evaluates the information, ” MTD Reply at 10-11 (quoting MTD Response at 4), the Defendants assert that Nowell cannot rely on “vague allegations and the hope that discovery eventually will reveal some basis” for Nowell's claim, MTD Reply at 11 (citing DM Research v. Coll. of Am. Pathologists, 170 F.3d 53, 56 (1st Cir. 1999)(“[C]onclusory allegations in a complaint, if they stand alone, are a danger sign that the plaintiff is engaged in a fishing expedition.”)).

         The Defendants maintain that Nowell is not entitled to punitive damages, and contend that she “misses the point” when she asserts that “punitive damages is not an allegation that can be dismissed for failure to states a claim, ” MTD Reply at 11 (internal quotation marks omitted)(quoting MTD Response at 11), because, according to the Defendants, Nowell's punitive damages request “requires” an allegation that the Defendants engaged in conduct that was “maliciously intentional, fraudulent, oppressive, or committed recklessly or with a wanton disregard to the plaintiffs' rights, ” MTD Reply at 11 (emphasis in MTD Reply)(internal quotation marks omitted)(quoting Loucks v. Albuquerque Nat. Bank, 1966-NMSC-176, ¶ 48, 418 P.2d 191, 199). Hence, punitive damages should not arise, the Defendants conclude, because the Amended Complaint pleads no facts that could support this claim. See MTD Reply at 11-12.

         4. The Hearing.

         At the hearing on August 10, 2018, the Defendants began by asking the Court to grant their MTD, because, according to the Defendants, Nowell's Amended Complaint fails to state claims upon which relief can be granted, and because the applicable statutes of limitations bar her inadequately pled claims. See Transcript of Hearing at 4:24-5:4 (taken August 10, 2014), filed August 22, 2018 (Doc. 43)(Reyes)(“Tr.”). The Defendants note that the Amended Complaint is Nowell's second amended complaint after seeing the Defendants' initial motion to dismiss, which indicates to the Defendants that Nowell is unable to cure the Amended Complaint's deficiencies. See Tr. at 5:5-9 (Reyes). The Defendants further note that the three exhibits which Nowell attached to the MTD Response are improper on a 12(b)(6) motion and that any allegations therein “should have, of course, been made in any one of her three complaints.” Tr. at 5:14-18 (Reyes).

         The Court then asked Nowell whether, after considering the briefing and her reply, she is willing to concede any of her claims. See Tr. at 6:9-12 (Court). Nowell responded that she concedes that the applicable statute of limitations bars her express warranty claim. See Tr. at 6:14-17 (Montclare). The Court next asked Nowell to describe what she sees as the defect in the Defendants' mesh. See Tr. at 7:1-3 (Court). Nowell responded that the defect, as she sees it, has two elements: first, that the mesh “was made from a material that was unreasonable, . . . and that the propensity of the material used to promote infection, as evidenced by the scientific literature, would make it an unreasonable product and unsafe product”; and second, that “the way that it was manufactured, the physical integrity of the mesh itself was not sturdy enough to withstand the forces of [Nowell's] body and therefore, it did not -- it caused physical injury due to the fact that the mesh was mechanically unfit.” Tr. at 7:7-22 (Montclare).

         The Court confirmed that Nowell is asserting a manufacturing defect claim and a design defect claim. See Tr. at 7:23-8:1 (Court, Montclare). The Court then asked Nowell whether she has proposed an alternative material that the Defendants should have used to design their mesh. See Tr. at 8:2-9 (Court). Nowell responded that she does not have alternatives “at this time.” Tr. at 8:10-15 (Montclare). The Court asked whether Nowell has retained an expert that has advised her that the Defendants could have manufactured their mesh using alternative materials. See Tr. at 8:18-22 (Court). Nowell responded that, although she has not retained such an expert and cannot “argue the weight of the evidence in that regard at this time, ” “the types of surgical mesh that are being used now are improvements on the older manufacturing methods employed by defendants, ” and that she is “confident” that she can show this to the Court's satisfaction. Tr. at 8:23-9:5 (Montclare).

         The Court confirmed that Nowell does not have an alternative material, see Tr. at 9:6-13 (Court, Montclare), and asked Nowell to make an opening statement, see Tr. at 9:14-16 (Court). In response, Nowell stated that she is not here to weigh the evidence, but merely to determine whether the Amended Complaint is plausible on its face. See Tr. at 9:17-21 (Montclare). Nowell added that she “has articulated, almost element by element, factual assertions that are plausible as to each and every claim, ” which, according to Nowell, is unnecessary “at this early stage.” Tr. at 9:24-10:2 (Montclare). Nowell added that the Court should not expect her “to give complex scientific arguments on how she could improve the product at this time, ” evidence which Nowell contends will “be forthcoming as the case progresses.” Tr. at 11:1-5 (Montclare). Turning to the statute of limitations, Nowell asserted that the Court should not deem her to have discovered the injury until her physician diagnosed it and that cases, in particular Robinson v. BNSF Railway Co., “investigate the relationship between a misdiagnosis and the discovery of an injury.” Tr. at 11:9-14 (Montclare). Nowell asserted that, because the question when the cause of action occurred is a factual issue, the Court should analyze it in the summary judgment context, after the Court affords Nowell the ability to depose witnesses. See Tr. at 11:14-21 (Montclare). Nowell summarized her response to the Court's concern regarding an alternate material by asserting that “a better alternative product would be one that didn't cause her injury.” Tr. at 12:2-4 (Montclare).

The Defendants asserted that Nowell's implied breach of warranty claim
carries the same four-year statute of limitations as the express warranty claim, and that there is no discovery tolling with respect to any warranty claim, including an implied breach of warranty claim. And because plaintiff did not file her complaint until seven years after the mesh was implanted, both of the warranty claims are barred by the statute of limitations.

Tr. at 12:13-22 (Reyes). The Defendants added that Nowell has not set out either warranty claim's elements sufficient to withstand rule 12(b)(6). See Tr. at 12:23-13:2 (Reyes).

         The Court then asked Nowell why she is conceding that her express-warranty claim is time-barred, but arguing that her implied warranty claim is timely. See Tr. at 13:3-7 (Court). Nowell responded that a New Mexico statute makes clear that the discovery rule cannot toll an express warranty claim, but that “New Mexico law . . . has not made a decision anywhere in the case law or in statutory law that would either apply or not apply the discovery rule to implied warranty claims such as that for a particular fitness of purpose or merchantability.” Tr. at 13:14-19 (Montclare).

         The Court then asked why a federal court should predict that the Supreme Court of New Mexico would apply the discovery rule to an implied warranty claim and whether other courts have done so, see Tr. at 13:22-14:6 (Court), to which Nowell responded that she has observed a trend in New Mexico appellate jurisprudence which indicates that the Court of Appeals of New Mexico or the Supreme Court of New Mexico would apply the discovery rule to implied warranty claims “because this particular type of claim is very tort-related, whereas most express warranty claims are more sales-related, ” Tr. at 14:7-19 (Montclare).

         The Defendants then directed the Court to AIG Aviation Insurance v. Avco Corp., 709 F.Supp.2d 1124 (D.N.M. 2010)(Black, J.), wherein the Honorable Bruce Black, former United States District Judge for the District of New Mexico, concluded that implied warranties “by their very nature ‘do not explicitly guarantee future performance'” and therefore cannot be tolled pursuant to the applicable statute. Tr. at 15:4-16 (Reyes)(quoting AIG Aviation Ins. v. Avco Corp., 709 F.Supp.2d at 1132). The Defendants add that no reason exists to distinguish between an implied-warranty claim and an express-warranty claim in the discovery rule context, because “[t]he question is: What is the product being guaranteed for?” Tr. at 15:20-25 (Reyes). The Court asked the Defendants whether any court has held or suggested that the discovery rule applies to an implied-warranty claim. See Tr. at 16:2-6 (Court). The Defendants responded that they “have not seen that in our research to date” and that Nowell apparently also has not seen it, Tr. at 16:9-11 (Reyes), to which Nowell replied that she believes that federal courts in the United States District Court for the District of Kansas have interpreted State of Kansas law to hold that the discovery rule does apply to implied warranties, see Tr. at 16:12-17 (Montclare). The Defendants responded that they “are trying really hard not to make a We're-not-in-Kansas joke.” Tr. at 16:22-23 (Reyes).

         The Defendants turned next to their argument that the Amended Complaint fails to state a claim for the breach of implied warranty, and asserted that Nowell “does not set out what the warranty was, what the implied warranty was, or what the breach of that was with respect to that.” Tr. at 17:10-15 (Reyes). The Court asked Nowell what the implied warranty is in this case. See. Tr. at 17:16-17 (Court). Nowell responded: “merchantability, . . . due to the fact that . . . the particular type of mesh that was used was causing injuries, . . . and that an implied warranty would extend from the discovery of that injury.” Tr. at 17:18-25 (Montclare). The Defendants rejoined: “[I]f an implied warranty could be tolled under the discovery rule, it would gut the express warranty rule with respect to the statute of limitations.” Tr. at 18:6-9 (Reyes).

         The Defendants insisted that the parties agree that Nowell did not file her claims until seven years after her initial surgery involving the Defendants' mesh, and, thus, “because the face of the complaint establishes that the statute of limitations bar the claim without some form of tolling, ” Nowell now bears the burden to make allegations that, if proven at trial, could convince a reasonable jury to reject the limitations. Tr. at 18:20-19:4 (Reyes). The Defendants insisted further that Nowell has not carried this burden and that she misconstrues the discovery rule when she states that it became reasonable to assume that the Defendants' mesh was causing her symptoms only on October 8, 2014, i.e., after her physician diagnosed the mesh as her injury's cause despite its implantation nearly four years before, in October, 2010. See Tr at 19:5-19 (Reyes). The Defendants continued:

The question under the discovery rule is not when a plaintiff gets a definitive diagnosis of the injury and its cause. The question is when the plaintiff, quote, “experiences physical symptoms that would cause an ordinary person to make an inquiry about the discovery of the cause of the symptoms. That is the point at which the statute of limitations begins to accrue.”

         Tr. at 19:20-20:2 (Reyes)(quoting Gerke v. Romero, 2010-NMCA-60, ¶ 14, 237 P.3d. 111, 116). The Defendants added that Gerke v. Romero is a case which Nowell herself directed the Court in the MTD Response. See Tr. at 20:3-6 (Reyes). The Defendants maintained that, “as a matter of law, ” Nowell's cause of action accrued “no later than April 27, 2011, ” because, on that date, Nowell underwent a second hernia mesh surgery, which “was necessitated because the mesh had begun to, quote, ‘pull away from the edges,' end quote.” Tr. at 20:8-15 (Reyes)(quoting Amended Complaint, ¶ 38, at 8). The Defendants insisted that Nowell was “on inquiry notice that there may have been an issue with the mesh, ” not only because of the second surgery but also because, from April 27, 2011, to March 1, 2014, “she continued to experience exhaustion and pain, quote, ‘in the area of the mesh,' end quote.” Tr. at 20:16-22 (Reyes)(quoting Amended Complaint ¶ 38, at 8). The Defendants added that the statutes of limitation on Nowell's remaining claims are three years and therefore are timed-barred even if tolled until April 27, 2011. See Tr. at 21:8-11 (Reyes).

         Nowell responded that the parties and the Court are “not here to weigh the evidence of . . . the specific facts that went to when this cause of action ensued” and that the cases which the Defendants cite are “summary judgment cases where the few facts have been . . . fully developed through the discovery process including the depositions of all the witnesses.” Tr. at 21:15-22:1 (Montclare). Nowell added that even the Defendants' “most powerful case, ” Robinson v. BNSF Railway Company, “which investigated the relationship between the misdiagnosis and the discovery of an injury” is a summary judgment case that is distinguishable from the facts here, because the patient in Robinson v. BNSF Railway Company was not under a physician's constant care, unlike Nowell, and because the patient's physician did not discuss potential other causes for the patient's injury, whereas here Nowell's physician “discussed the possibility that the staph infection could have been normal.” Tr. at 22:5-18 (Montclare). Nowell added that, in Robinson v. BNSF Railway Co., the Honorable John Lungstrum, United States District Judge for the District of Kanasas, “discussed [Mest v. Cabot Corp., 449 F.3d 502, 514 (3d Cir. 2006)], which indicates affirmatively that a negative diagnosis on the part of the doctor would toll the statute of limitations.” Tr. at 22:15-18 (Montclare). Nowell contended that Mest v. Cabot Corp. is relevant here, because here her physician, “up until October 8, [2014, ] had affirmatively said that the mesh did not cause the injury.” Tr. at 22:19-25 (Montclare). Nowell maintained that her claims are plausible and that, “at the very least, there is a material issue of fact . . . as to when the statute of limitations accrued, ” which, according to Nowell, is a summary judgment standard that the Court need not consider on a motion pursuant to rule 12(b)(6). Tr. at 23:2-8 (Montclare).

         The Court asked Nowell whether she has anything further to say regarding the discovery issue, i.e., any facts to add that are not already in the Nowell Affidavit or in her Amended Complaint, because, in the Court's experience, plaintiffs avoid addressing statutes-of-limitations questions at the motion-to-dismiss stage by omitting dates, which the Court previously has permitted, but here the Amended Complaint and the Nowell Affidavit include dates and facts such that the issue arguably is ripe for decision. See Tr. at 23:10-24:6 (Court). Nowell responded in the affirmative and argued that the case has not ripened to the point where the Court can make a final decision, because Nowell, for example, has not deposed her physician “so that he can explain in detail how he had indicated that he affirmatively said that the mesh was not involved.” Tr. at 24:7-14 (Montclare). “So we have not even scratched the surface as far as our ability to marshal the evidence in support of the claim, because we simply don't believe that that's our burden at this juncture.” Tr. at 24:14-18 (Montclare). The Court asked whether Nowell is suggesting that a split exists among jurisdictions or whether, among New Mexico cases, “there were some cases that read a certain way which suggest your facts would be time-barred, that the discovery rule -- the discovery would have occurred earlier; and then there are some cases that you're saying it would not satisfy the discovery rule[.]” Tr. at 24:22-25:4 (Court). In response, Nowell asserted that the cases to which she directs the Court explain how a physician's misdiagnosis could toll the statute of limitations when the misdiagnosis prevents the plaintiff from discovering the issue, and that such cases might help the defense to build arguments “during summary judgment” whether Nowell's cause of action accrued before the misdiagnosis. Tr. at 25:8-19 (Montclare). The Court asked what about Robinson v. BNSF Railway Co. tells Nowell that her case is not appropriate either to decide on a motion to dismiss or to decide that the discovery rule does not apply. See Tr. at 25:22-26:5 (Court). Nowell responded that Robinson v. BNSF Railway Co. cites Mest v. Cabot Corp., which “basically says that if the doctor gives a misdiagnosis to the plaintiff, as he did in this case, the statute of limitations tolls. Because . . . the plaintiff did not know that there was an injury, because the doctor told the plaintiff that that was not a cause of the injury.” Tr. at 26:12-22 (Montclare). The Court then asked whether Nowell is alleging that her physician committed malpractice. See Tr. at 26:24-27:1 (Court). Nowell responded that her physician's statement --that the Defendants' mesh was not the cause of Nowell's injury until October 8, 2014, when he changed his opinion -- “may very well be malpractice, ” but that she has not developed that argument and therefore considers it a misdiagnosis. Tr. at 27:3-8 (Montclare).

         The Defendants conceded that Robinson v. BNSF Railway Co. “does indicate that a misdiagnosis is not a basis not to toll the discovery rule, ” but asserted that the issue here is “[w]hen the individual was on inquiry notice and should have taken reasonable action, reasonable actions would have uncovered the injury.” Tr. at 27:25-28:5 (Reyes). The Defendants emphasized that Mest v. Cabot Corp. is a United States Court of Appeals for the Third Circuit case and called the Court's attention to Martinez v. Showa Denko, K.K., which is a Court of Appeals of New Mexico case. See Tr. at 28:7-11 (Reyes). The Defendants contended that, in Martinez v. Showa Denko, K.K., the Court of Appeals of New Mexico addresses the interplay between a misdiagnosis and the discovery rule:

“This case involves contrary diagnoses in which the overwhelming diagnosis was that the individual had not suffered a particular injury that was caused by a product.” It later turned out that she had, and the Court wrote, “Although we are sympathetic to plaintiff's situation, nothing in the discovery rule serves to suspend the running of the statute of limitations merely because there are divergent medical opinions concerning the nature or cause of the illness or injuries. As observed by another court” -- they cite another court in Texas -- “because of the discovery rule's requirement of reasonable diligence, the tolling of the applicable statute of limitations by the rule ends when the person claiming the benefit of the rule acquires knowledge of facts, conditions, or circumstances which would cause a reasonable person to make an inquiry leading to the discovery of the concealed cause of action. This is so because the knowledge of such matters is, in the law, equivalent to knowledge of the cause of action itself for limitation purposes.”

Tr. at 28:13-29:9 (Reyes)(quoting Martinez v. Showa Denko, K.K., 1998-NMCA-111, ¶ 24, 964 P.2d 176, 182).

         The Defendants noted that, although the Court cannot take the Nowell Affidavit into consideration if the case proceeds to discovery, the Defendants assume that Nowell will testify consistent with the Nowell Affidavit, and that the Nowell Affidavit's statements, specifically,

“I was concerned that there was a problem with the surgical mesh that was implanted on October 27, 2010. I talked about my concerns with my physician. He advised me that he did not think that my symptoms were caused by the mesh. Since he is my doctor, I accepted his advice that the mesh was not causing my symptoms. However, I still had my suspicions.”

         indicate as a matter of law that Nowell's claims are time-barred. Tr. at 29:10-24 (Reyes)(quoting Nowell Affidavit at 1)). The Defendants reasserted that the statute of limitations began to run after Nowell's second surgery put Nowell on inquiry notice and expired well before Nowell filed her initial Complaint. See Tr. at 29:25-30:5 (Reyes). Because Nowell was on inquiry notice as of the day of her second surgery, in April, 2011, the Defendants argued, discovery will not change the facts in the Amended Complaint and in the Nowell Affidavit, and will confirm only that the statutes of limitations bar Nowell's claims. See Tr. at 30:614 (Reyes).

         Turning to Nowell's strict-liability claims, the Defendants asserted that Nowell conceded in the MTD Response that she did not plead facts sufficient to state a manufacturing-defect claim. See Tr. at 30:22-31:10 (Reyes)(quoting MTD Response at 9 (“In regard to the manufacturing and warranty defects, Ms. Nowell concedes that despite due diligence, she has been unable to obtain information pertaining to the exact manufacturing process and specific warranty [language].”)). The Defendants urged the Court to take Nowell's assessment to its logical conclusion and dismiss her manufacturing-defect claim, because she does not “state in any way, shape, or form how this particular mesh was defective when it came out of the plant with respect to the manufacturing.” Tr. at 31:11-17 (Reyes). The Court asked the Defendants whether this argument applies to all three of Nowell's strict-liability theories -- design, manufacture, and failure-to-warn. See Tr. at 31:18-24 (Court). The Defendants responded that their understanding is that Nowell's concession is limited to her manufacturing-defect claim. See Tr. at 31:25-32:5 (Reyes). Nowell replied that her inability to articulate plausible facts regarding the manufacturing defect is because that information is available to her only through the discovery process: “The nuances of the manufacturing process are not known and cannot be known by my client until further discovery.” Tr. at 32:8-15 (Montclare). She therefore asked the Court to dismiss that count without prejudice. See Tr. at 32:16-17 (Montclare).

         The Defendants turned next to Nowell's design-defect claim and disputed Nowell's assertion that, because the mesh material did not prevent accumulation of infection, it was therefore unreasonable. See Tr. at 33:11-20 (Reyes). Instead, the Defendants argued that all hernia repair surgeries carry a well-known infection risk, and, thus Nowell's infection allegation is insufficient to indicate that the Defendants' mesh is unreasonably dangerous. See Tr. at 33:20-34:2 (Reyes). The Defendants provided the Court with three grounds to dismiss Nowell's claim:

[F]irst, the claim must be dismissed because they haven't alleged an actual design defect. Secondly, the claim should be dismissed because there's nothing in her allegation that makes it plausible as opposed to just consistent with or possible that her injury was caused by a defect in the mesh as opposed to it just being a known side effect of a well-functioning mesh and would have happened regardless of what mesh was used. And third . . ., Your Honor, you had another good question . . ., which is: What safer alternative design is she proposing with respect to the mesh? And . . . they don't have one. And . . . they don't have one because all meshes carry this potential risk of infection that Ms. Nowell was injured by.

Tr. at 34:3-20 (Reyes).

         The Defendants reminded the Court of its opinion in Morales v. E.D. Etnyre & Co. wherein, the Defendants argued, the Court “rightfully said that we should be concerned with the plaintiff coming to court ‘merely to criticize a product' without proposing any alternative.” Tr. at 34:21-25 (Reyes)(quoting Morales v. E.D. Etnyre & Co., 382 F.Supp.2d at 1283 (“Thus, to the extent that a plaintiff could come to court and merely criticize a product, the Court believes that the New Mexico law required the plaintiff to propose an alternative design.”). The Defendants disputed Nowell's position that she can later obtain an expert to deduce a safer alternative: “We don't put parties to the expense of litigation in the hopes that someone will be able to manufacture a claim with further discovery. The very purpose of [Ashcroft v.] Iqbal and [Bell Atlantic Corp. v.] Twombly is that we use the complaint process as a gatekeeping function.” Tr. at 35:5-10 (Reyes).

         An alternative theory for Nowell's infection, the Defendants contended, is that, because “it's clear from her complaint that for four years, she didn't seem to have an infection in her abdomen, ” Nowell developed a staph infection, “which began at the skin, at the drainage site, [and] migrated down to her body[, ] to include the mesh.” Tr. at 35:14-36:1 (Reyes). The Defendants insist that this theory is consistent with the Amended Complaint's allegations and with the physician's notes that Nowell attaches to the MTD Response. See Tr. at 36:2-9 (Reyes).

         The Court stated that it has dealt with competing designs at trial, “so it's clear to the jury what they're being asked to compare the current design with, ” but questioned whether state or federal pleading law requires the plaintiff in a products liability case “to put their competing designs on the table at the time they file the case.” Tr. at 36:21-37:5 (Court). In response, Nowell asserted that the Court in Morales v. E.D. Etnyre & Co. made clear to the parties that it would not permit that case to go to trial unless the plaintiff proposed a safer alternative. See Tr. at 37:8-12 (Reyes). The Defendants added that Nowell has not alleged that a safer hernia mesh product design exists which could reduce the risk of infection, because “the very injury that she's complaining of is an injury that's inherent in every single mesh product.” Tr. at 37:13-24 (Reyes). The Defendants insisted that the Court should require Nowell to propose a safer alternative design before allowing Nowell to proceed with discovery. See Tr. at 38:3-8 (Reyes). The Defendants informed the Court that, after its decision in Morales v. E.D. Etnyre & Co., the Court of Appeals of New Mexico issued a decision in Bustos v. Hyundai Motor Co., 2010-NMCA-090, 243 P.3d 440, which distinguished Morales v. E.D. Etnyre & Co., because the Court of Appeals of New Mexico discussed whether a safer alternative design was an element with respect to enhanced injuries, and it concluded that the jury should consider the safer alternative as a factor but not as a requirement. See Tr. at 38:9-22 (Reyes)(citing Bustos v. Hyundai Motor Co., 2010-NMCA-090, ¶ 57, 243 P.3d at 453). The Defendants noted, however, that the Court of Appeals of New Mexico in Bustos v. Hyundai Motor Co. quoted the Court favorably regarding whether a plaintiff can come to court merely to criticize a product. See Tr. at 38:23-39:2 (Reyes). The Defendants added that, after the Supreme Court's decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, Nowell must present the Court with a hernia mesh alternative that does not carry a risk of infection, which, the Defendants maintain, is a product that does not exist. See Tr. at 39:2-9 (Reyes).

         In response, Nowell argued that an alternative design better than the Defendants' mesh is not an element of her claims, and she therefore does not need to articulate one at this time. See Tr. at 39:13-18 (Reyes). Nevertheless, Nowell asserted, the Amended Complaint cites three scientific articles which indicate how the Defendants' “actual, specific mesh” is dangerous. Tr. at 39:23-40:2 (Montclare). “Central Failures of Monofiliment Polyester Mesh Causing Hernia Recurrence: A Cautionary Note, ” Nowell averred, describes how a mesh type similar to the Defendants' “was deemed to have had a high incidence of mechanical failure.” Tr. at 40:2-7 (Montclare). Further evidence, alleged Nowell, is in “Postoperative Mesh Infection -- Still A Concern in Laparoscopic Era, ” which “states that this type of synthetic mesh was . . . dangerous, ” and in “Novel in Vitro Model for Assessing Susceptibility of Synthetic Hernia Meshes, ” which “state[s] that this type of mesh is a major cause of patient morbidity and results in substantial health care expenditures.” Tr. at 40:8-18 (Montclare). Because these articles indicate that the Defendants' mesh is “extremely dangerous, ” Nowell concluded, the question is not whether Nowell can present the Court with a better mesh but whether the Defendants' mesh “should be used in the first place.” Tr. at 40:21-24 (Montclare).

         The Defendants disputed that the three scientific articles support Nowell's allegation that the Defendants' mesh is dangerous, beginning with the first article, which “discusses a potential for a central mesh fracture, which is not an injury complained of here, not something that happened with the mesh here. It also discussed a different mesh.” Tr. at 41:7-14 (Reyes). Moreover, the Defendants continued, the second and third articles support the Defendants' position that infection is a known risk in all hernia repair surgeries and, therefore, Nowell cannot allege causation, because the Amended Complaint does not assert facts to suggest that Nowell's injury resulted from a design defect as opposed to a side effect associated with all surgical hernia repairs. See Tr. at 41:15-25 (Reyes).

         The Defendants next turned to Nowell's failure-to-warn claim and asserted that all hernia repair meshes, including their mesh, carry a warning that infection is a known side effect; “[s]o the physician was warned of the risk of the infection, and the duty here runs from the manufacturer to the physician.” Tr. at 42:7-14 (Reyes). The Defendants noted that the Amended Complaint does not allege that the Defendants did not warn Nowell's physician or that her physician would have made a decision not to use the Defendants' mesh had he had a different warning. See Tr. at 42:14-17 (Reyes).

         The Defendants acknowledged their familiarity with the Court's decision in Rimbert v. Eli Lilly & Co., wherein the Court concluded that the Supreme Court of New Mexico would not adopt the learned-intermediary doctrine, but asserted that the rationale underlying that decision does not apply here, because Rimbert v. Eli Lilly & Co. involved direct manufacturer-to-consumer advertising and the Defendants do not advertise their hernia mesh products to the consumer directly. See Tr. at 42:18-43:8 (Reyes). A patient's physician, the Defendants argued, makes the decision as to which hernia mesh to use, and this decision is based often on the physician's idiosyncratic preferences for one mesh over another or, once the surgery has commenced, after the physician can evaluate a given hernia's nature and extent. See Tr. at 43:11-17 (Reyes). Hence, the Defendants concluded, unlike the defendant in Rimbert v. Eli Lilly & Co., they do not have a duty to warn the ultimate consumer of the risks associated with their hernia mesh products; “[h]ere the duty does and must run to the physician.” Tr. at 43:18-22 (Reyes). The Defendants added that Nowell alleges neither the specific mesh-type that her physician used on her, nor the allegedly inadequate warnings associated with the specific mesh-type used, which, the Defendants argued, clouds the question what specific, adequate warning the Defendants could have provided. See Tr. at 44:5-11 (Reyes).

         Nowell replied by identifying two distinct issues: first, whether the Defendants should have given a warning in the first place, and second, whether any warning was sufficient or reasonable. See Tr. at 44:14-18 (Montclare). Regarding the first issue, Nowell asserted: “[W]e don't have any evidence that an actual warning was given.” Tr. at 44:19-20 (Montclare). Nowell asserted that the Defendants are liable for failing to warn her of the mesh's potential to cause injury but conceded that, “as far as any type of express warranties, we are not in a position to have that information yet, ” and therefore seeks discovery. Tr. at 44:23-45:7 (Montclare).

         The Court asked Nowell whether the Defendants accurately described her failure-to-warn claim. See Tr. at 45:8-10 (Court). Nowell responded that, although the Defendants did “a reasonable job” describing it, they did not address the “material issue of fact as to whether or not . . . a specific warning should have been given, given the dangerous propensity of this mesh.” Tr. at 45:11-17 (Montclare). Nowell added that, if the Defendants did not give a required warning, they violated their duty to warn. See Tr. at 45:18-20 (Montclare). The Defendants responded that the question is whether the Defendants should have warned Nowell's physician and then asserted that Nowell does not know whether the Defendants did so, which is a basis for dismissal, according to the Defendants, given that “we're far down the road and that we do have pleading standards.” Tr. at 45:23-46:9 (Reyes).

         The Defendants argued that the Court should dismiss Nowell's negligence claim for the same reason that it should dismiss her design-defect and failure-to-warn claims, i.e., because the Amended Complaint does not include factual allegations “with respect to a duty or respect to a breach of the duty.” Tr. at 46:15-23 (Reyes). Without an alleged design defect or an alleged failure-to-warn, the Defendants continued, Nowell cannot allege a breach and the Court, therefore, should dismiss her negligence claim. See Tr. at 46:23-47:2 (Reyes). Nowell responded that the MTD Response discusses “every element of negligence and what would have to be proven should this case go to trial, ” and includes citations to the relevant paragraphs in the Amended Complaint, which “provide a plausible claim for negligence.” Tr. at 48:6-20 (Montclare)(citing MTD Response at 5). The Defendants replied that the citations to which Nowell directs the Court in the MTD Response “are just conclusory allegations that are plainly not sufficient under Iqbal and Twombly.” Tr. at 48:25-49:4 (Reyes). The Defendants added that they have also asked the Court to dismiss Nowell's punitive damages claim. See Tr. at 49:5-6 (Reyes). In response, Nowell asserted that she is not “under the burden to discuss each element, ” but has nevertheless done so, and that, “as far as punitive damages are concerned, ” the MTD Response “cite[s] numerous paragraphs that support why punitive damages would be appropriate according to the elements of New Mexico Law.” Tr. at 49:14-25 (Montclare). The Defendants reasserted their position that the Amended Complaint does not “allege the type of egregious conduct that would warrant punitive damages.” Tr. at 50:4-7 (Reyes).

         The Court stated that, although it needs to consider further the implied-warranty issue, the Court nonetheless thinks that Nowell is “kind of pushing the envelope to try to get the discovery rule to apply to the implied warranty claim” and that the Court, therefore, is “inclined to think that it's just overwhelming that th[e] discovery rule shouldn't apply.” Tr. at 50:10-18 (Court). Turning to the facts that the Amended Complaint alleges, the Court stated that plaintiffs sometimes want bad news early, and that, “by putting all these facts and all these detailed allegations in the complaint, that there's a lot to work with here to decide whether the negligence and strict liability claims have been tolled.” Tr. at 51:1-7 (Court). The Court added that it looks to the Court like Nowell “was on notice that she had some problems outside the statute of limitations period, ” although the Court expressed its intention to review Robinson v. BNSF Railway Co. alongside Nowell's other cases and arguments. Tr. at 51:8-13 (Court). The Court stated that it needs to consider further the Defendants' remaining 12(b)(6) arguments and that it wants to review the Court of Appeals of New Mexico's decision in Bustos v. Hyundai Motor Co., but that it seems to the Court that “to embark on a case like this without some alternatives to the product that's being challenged here may just not get us anywhere.” Tr. at 51:14-52:3 (Court). The Court nonetheless expressed that it would review the three scientific articles attached to the Amended Complaint to “see if there's a design defect here that should go forward.” Tr. at 52:6-10 (Court). The Court declined to express any inclination regarding Nowell's failure-to-warn claim, because the Court desired to consider whether its decision in Rimbert v. Eli Lilly & Co. applies to the facts as Nowell alleges them. See Tr. at 52:11-15 (Court). The Court stated its inclination to dismiss Nowell's punitive damages claim, because “it doesn't look like . . . there's anything that's pled or even known by the plaintiff at the present time that would support punitive damages, ” but would permit Nowell to reassert it “[i]f something comes up down the road.” Tr. at 52:16-22 (Court). The Court similarly dismissed Nowell's manufacturing-defect claim, because it agreed with the Defendants that “we shouldn't have discovery going to the manufacturing defect” unless “something shows up in the discovery of the other claims, ” in which case Nowell “may be able to move to reinsert the manufacturing defect claim.” Tr. at 52:22-4 (Court). The Court dissuaded the parties from continuing to work on this case until the Court issues an opinion, “because I think some claims are going to be dismissed, if not the case.” Tr. at 53:6-10 (Court).

         LAW REGARDING RULE 12(b)(6)

         Rule 12(b)(6) authorizes a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). The sufficiency of a complaint is a question of law, and when considering a rule 12(b)(6) motion, a court must accept as true all well-pled factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiff's favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)(“[O]nly if a reasonable person could not draw . . . an inference [of plausibility] from the alleged facts would the defendant prevail on a motion to dismiss.”); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)(“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pled factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.” (citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006))).

         A complaint need not set forth detailed factual allegations, yet a “pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient. Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678. “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp v. Twombly, 550 U.S. at 555 (citation omitted).

         To survive a motion to dismiss, a plaintiff's complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)(emphasis omitted). The Tenth Circuit stated:

“[P]lausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)(internal citations omitted)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570).

         Although affirmative defenses must generally be pled in the defendant's answer, not argued on a motion to dismiss, see Fed.R.Civ.P. 8(c), there are exceptions where: (i) the defendant asserts an immunity defense -- the courts handle these cases differently than other motions to dismiss, see Glover v. Gartman, 899 F.Supp.2d 1115, 1137-39, 1141 (D.N.M. 2012)(Browning, J.)(citing Pearson v. Callahan, 555 U.S. 223 (2009); Robbins v. Oklahoma, 519 F.3d 1242 (10th Cir. 2008)); and (ii) where the facts establishing the affirmative defense are apparent on the face of the complaint, see Miller v. Shell Oil Co., 345 F.2d 891, 893 (10th Cir. 1965)(“Under Rule 12(b), a defendant may raise an affirmative defense by a motion to dismiss for the failure to state a claim. If the defense appears plainly on the face of the complaint itself, the motion may be disposed of under this rule.”). The defense of limitations is the affirmative defense most likely to be established by the uncontroverted facts in the complaint. See 5 Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Richard L. Marcus & Adam N. Steinman, Federal Practice & Procedure: Civil § 1277 (3d ed. 2014). If the complaint sets forth dates that appear, in the first instance, to fall outside of the statutory limitations period, then the defendant may move for dismissal under rule 12(b)(6). See Rohner v. Union Pac. R.R. Co., 225 F.2d 272, 273-75 (10th Cir. 1955); Gossard v. Gossard, 149 F.2d 111, 113 (10th Cir. 1945); Andrew v. Schlumberger Tech. Co., 808 F.Supp.2d 1288, 1292 (D.N.M. 2011)(Browning, J.). The plaintiff may counter this motion with an assertion that a different statute of limitations or an equitable tolling doctrine applies to bring the suit within the statute; the Tenth Circuit has not clarified whether this assertion must be pled with supporting facts in the complaint or may be merely argued in response to the motion. Cf. Kincheloe v. Farmer, 214 F.2d 604, 605 (7th Cir. 1954)(holding that, once a plaintiff has pled facts in the complaint indicating that the statute of limitations is a complete or partial bar to an action, it is incumbent upon the plaintiff to plead, either in the complaint or in amendments to it, facts establishing an exception to the affirmative defense). It appears, from caselaw in several Courts of Appeals, that the plaintiff may avoid this problem altogether -- at least at the motion-to-dismiss stage -- by simply refraining from pleading specific or identifiable dates, see Goodman v. Praxair, Inc., 494 F.3d 458, 465-66 (4th Cir. 2007); Hollander v. Brown, 457 F.3d 688, 691 n.1 (7th Cir. 2006); Harris v. New York, 186 F.3d 243, 251 (2d Cir. 1999); Honeycutt v. Mitchell, 2008 WL 3833472 (W.D. Okla. Aug. 15, 2008)(West, J.), and, although the Tenth Circuit has not squarely addressed this practice, the Court has permitted it, see Anderson Living Tr. v. WPX Energy Prod., LLC, 27 F.Supp.3d at 1235-36.

         LAW REGARDING JUDICIAL NOTICE OF DOCUMENTS WHEN RULING ON ...


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