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Aguirre v. Atrium Medical Corp.

United States District Court, D. New Mexico

May 22, 2019

JESUITA AGUIRRE, Plaintiff,
v.
ATRIUM MEDICAL CORPORATION, GETINGE GROUP, GETINGE USA, INC., AND MAQUET CARDIOVASCULAR, LLC, Defendants.

          MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS GETINGE USA'S AND MAQUET'S MOTION TO DISMISS AND GRANTING IN PART AND DENYING IN PART DEFENDANT ATRIUM'S MOTION TO DISMISS

         THIS MATTER comes before the Court upon Defendant Atrium Medical Corporation's Motion to Dismiss, filed on February 1, 2019 (Doc. 29) and Defendants Getinge USA, Inc.'s and Maquet Cardiovascular, LLC's Motion to Dismiss, filed on February 1, 2019 (Doc. 30). Having reviewed the parties' pleadings and the applicable law, the Court finds that Defendants Getinge USA's and Maquet's motion is well-taken in part and, therefore, is GRANTED IN PART AND DENIED IN PART. The Court further finds that Defendant Atrium's motion is well taken in part and, therefore, is GRANTED IN PART AND DENIED IN PART.

         BACKGROUND

         Plaintiff brings this case following an injury allegedly caused by Defendant Atrium's polypropylene mesh used in a hernia repair. Plaintiff alleges the following claims:

Count I: Negligence
Count II: Strict Liability: Design Defect
Count III: Strict Liability: Manufacturing Defect
Count IV: Strict Liability: Failure to Warn
Count V: Breach of Express Warranty
Count VI: Breach of Implied Warranty

         Plaintiff is a resident of Alamogordo, New Mexico. She underwent hernia surgery on or about October 25, 1994. Doc. 25, ¶ 6. Defendant Atrium's mesh product was used to repair her hernia. She had a second surgery in 1995.

         On February 17, 2015, Plaintiff became ill with lower stomach pain, and she had trouble breathing. Her daughter took her to the emergency room. Her hands and fingers had turned blue, and Dr. William Pollard found that the mesh covering her hernia had embedded itself into a section of her bowels, causing an obstruction and twisting her intestines. She had emergency surgery on February 18, 2015, as Dr. Pollard feared the obstruction could burst and kill her. Dr. Pollard had to remove a section of her bowels that died, because it was not receiving blood and oxygen.

         Her recovery took six weeks, during which she had to hire a nurse and was out of work. After eight months, once she healed, she needed another surgery to repair the hernia on November 4, 2015. Dr. Pollard repaired the hernia with a metal mesh, and she had to miss work for another four weeks.

         Defendant Atrium Medical Corporation is a Delaware Corporation headquartered in New Hampshire. Plaintiff alleges that Defendant Getinge Group is a Swedish corporation. Defendant Getinge USA is a Delaware Corporation headquartered in New York. Defendant Maquet Cardiovascular LLC is a German corporation.

         Plaintiff alleges that Getinge USA and Maquet acquired Atrium through a merger and acquired Atrium's assets and assumed Atrium's liabilities. She alleges Defendant Atrium operates as a “business unit” of Getinge subsidiary Maquet. Plaintiff also alleges that Atrium is an alter ego and agent of Getinge USA and Maquet.

         In response, Defendants Getinge USA and Maquet submitted affidavits asserting that Defendant Atrium is a separate, active entity, and Getinge USA and Maquet are “sibling” corporations who have a common parent corporation with Atrium. They assert facts, which, if true, would tend to show that Defendants Getinge USA and Maquet do not control Atrium's day-to-day activities.

         DISCUSSION

         I. Personal Jurisdiction over Getinge USA and Maquet Cardiovascular.

         Defendants Getinge USA and Maquet argue this Court lacks personal jurisdiction over them. Federal courts sitting in diversity have personal jurisdiction over nonresident defendants to the extent permitted by the law of the forum. Benally v. Amon Carter Museum of Western Art, 858 F.2d 618, 621 (10th Cir. 1988) (citations omitted). The New Mexico long-arm statute extends personal jurisdiction to the extent permitted by due process. Tercero v. Roman Catholic Diocese of Norwich, Connecticut, 48 P.3d 50, 54 (N.M. 2002). Therefore, in this diversity case, the Court will generally limit its analysis to binding Tenth Circuit and United States Supreme Court precedent analyzing personal jurisdiction under the due-process clause. Federated Rural Electric Ins. Corp. v. Kootenai Electric Coop., 17 F.3d 1302, 1305 (10th Cir. 1994); Melea, Ltd. v. Jawer SA, 511 F.3d 1060, 1065 (10th Cir. 2007).

         A. Fed. R. Civ. P. 12(b)(2) standard

         Plaintiff bears the burden of establishing personal jurisdiction over Getinge USA and Maquet. See Kuenzle v. HTM Sport-Und Freizeitgeräte AG, 102 F.3d 453, 456 (10th Cir. 1996). Plaintiff need only make a prima facie showing of jurisdiction to defeat a motion to dismiss. See Shrader v. Biddinger, 633 F.3d 1235, 1239 (10th Cir. 2011). “The allegations in the complaint must be taken as true to the extent they are uncontroverted by the defendant's affidavits.” Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995). If the facts in the complaint are controverted, Plaintiff may make the required showing by coming forward with facts, via affidavit or other written materials, that would support jurisdiction. See OMI Holdings v. Royal Ins. Co., 149 F.3d 1086, 1091 (10th Cir. 1998). All factual disputes must be resolved in Plaintiff's favor. Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995). The Court need only accept as true well-pled facts, i.e. facts that are non-conclusory and non-speculative.

         B. Personal Jurisdiction and Due Process.

         To comport with due process, Plaintiff must establish that Defendants Getinge USA and Maquet have “such minimum contacts with the forum state that he should reasonably anticipate being haled into court there.” Emp'rs Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1159- 60 (10th Cir. 2010) (quotations omitted). If Plaintiff does so, she must also establish that exercise of personal jurisdiction over Defendants does not offend ...


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