Cosh v. Atrium Medical Corporation

Background

Tina M. Cosh and Lester A. Cosh sued Atrium Medical Corporation over an Atrium ProLite Mesh device implanted during Tina Cosh’s hernia-repair surgery on February 5, 2015. The complaint alleged that the device caused injuries, including stomach pain, and that Tina Cosh later underwent surgery to repair a nonhealing wound and remove infected mesh.

The complaint asserted claims for strict-liability design defect, manufacturing defect, and failure to warn; negligence; breach of express and implied warranties; punitive damages; fraudulent and negligent misrepresentation; unjust enrichment; consumer fraud; and loss of consortium. Atrium moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal when a complaint does not state a legally sufficient claim.

Court’s analysis

Design defect, manufacturing defect, and failure to warn

The court analyzed the strict-liability and negligence theories together because, under the New York law applied by the court, those theories are functionally equivalent for these product-liability claims.

The design-defect claims failed because the complaint did not adequately plead a feasible safer alternative design. The court found that the allegations identifying other materials or hernia-repair procedures were conclusory and lacked supporting facts. The court also stated that alleging the product should not be used at all would not satisfy the alternative-design requirement.

The manufacturing-defect claims failed because the Coshes did not identify a specific defective component, deviation in the manufacturing process, improper workmanship, or defective material. The court also rejected reliance on Tina Cosh’s injuries as circumstantial evidence because the complaint described those injuries as common and known consequences of hernia surgery using mesh, meaning the allegations did not show that this device failed to perform as intended.

The failure-to-warn claim failed because the allegations were largely conclusory and did not identify the actual warning language on the device. The court found that the complaint did not provide factual content explaining how the warnings or information were inadequate or misleading.

Fraud-based claims

The fraudulent-misrepresentation claims failed under the heightened pleading requirements of Rule 9(b), which requires fraud allegations to identify the statements, speaker, place and time, and reasons the statements were fraudulent. The complaint identified some statements from a product brochure but did not explain why they were fraudulent. Its omission-based allegations also did not adequately allege reliance because they lacked facts showing what information Tina Cosh or her physician received and whether they relied on it.

The negligent-misrepresentation claims failed because the complaint did not adequately allege false representations or identify what statements Tina Cosh or her physician relied on. The consumer-fraud claim also failed because the complaint did not provide factual support for the allegation that Atrium made misleading or deceptive representations.

Warranty and unjust enrichment

The express-warranty claim failed because the Coshes did not identify a specific warranty made by Atrium on which they relied. The implied-warranty claim failed because the complaint did not adequately allege that the mesh was not reasonably fit for its intended purpose; the alleged stomach pain and other common consequences of hernia surgery did not establish that the product was unsafe for hernia repair.

The unjust-enrichment claim failed because the Coshes had not plausibly alleged that the product was defective or that the sale was induced by misrepresentations or omissions. The court therefore found no basis for restitution.

Punitive damages and loss of consortium

The court did not reach Atrium’s remaining arguments concerning punitive damages, stating that punitive damages were not an independent claim and that the other claims had been dismissed. The court likewise did not separately address loss of consortium, explaining that it was a derivative claim dependent on the injured spouse’s underlying claims.

Disposition

The court granted Atrium’s motion to dismiss. The court also granted the Coshes leave to amend their complaint because Atrium had not shown bad faith or prejudice. The Coshes were ordered to submit an amended complaint by March 5, 2020. Judge Andrew L. Carter, Jr. signed the order.