United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter comes before the Court on a motion filed by Defendants
Johnson & Johnson and Ethicon, Inc., to dismiss the
complaint. (ECF No. 7). In this product liability action,
Plaintiff contends Defendants' defective hernia mesh
product was implanted in him, causing injury. Defendants seek
dismissal based on the statute of limitations and for failure
to state a claim of express and implied warranty and consumer
Domingo Gonzales is a Texas resident. (Complaint, ECF No. 1
at ¶ 1). Defendants Johnson & Johnson and Ethicon
are New Jersey corporations with their principal places of
business in New Jersey. (Id. at ¶¶ 2-5).
Further, the amount in controversy is greater than $75, 000.
(Id. at ¶ 6). Therefore, the Court has
diversity jurisdiction in each action. 28 U.S.C. § 1332.
complaint contains seven counts: negligence (Count I); strict
product liability (Counts II, III, and IV); breach of express
warranty (Count V); breach of implied warranty (Count VI);
and violation of consumer protection laws (Count VII).
Gonzales was diagnosed with an inguinal hernia and underwent
surgery on in April 2011. (Complaint at ¶ 23). Gonzales
was implanted with a "Prolene Hernia System Patch."
(Id. at ¶¶ 10, 23). Although it is not
explicitly set forth in the complaint, it appears that
Defendants "designed, manufactured, packaged, labeled,
marketed, sold and distributed" the product to
hospitals. (Id. at ¶ 10). The hospital, in
turn, sold the mesh to Gonzales. (Id. at
¶¶ 9, 18).
the months following the implant" - the complaint does
not provide dates - Gonzales experienced chronic abdominal
pain and multiple infections. (Id. at ¶ 25).
The product was surgically removed on February 17, 2017.
(Id. at ¶ 25). Gonzales filed his complaint on
December 26, 2018.
motion to dismiss for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6), the Court is
required to accept as true all allegations in the Complaint
and all reasonable inferences that can be drawn therefrom,
and to view them in the light most favorable to the
non-moving party. See Oshiver v. Levin, Fishbein, Sedran
& Berman, 38 F.3d 1380, 1384 (3d Cir. 1994).
"To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its
face.'" Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). While
a court will accept well-pleaded allegations as true for the
purposes of the motion, it will not accept bald assertions,
unsupported conclusions, unwarranted inferences, or sweeping
legal conclusions cast in the form of factual allegations.
Iqbal, 556 U.S. at 678-79; see also Morse v.
Lower Merion School District, 132 F.3d 902, 906 (3d Cir.
complaint should be dismissed only if the well-pleaded
alleged facts, taken as true, fail to state a claim. See
In re Warfarin Sodium, 214 F.3d 395, 397-98 (3d Cir.
2000). The question is whether the. claimant can prove any
set of facts consistent with his or her allegations that will
entitle him or her to relief, not whether that person will
ultimately prevail. Semerenko v. Cendant Corp., 223
F.3d 165, 173 (3d Cir.), cert, denied, Forbes v.
Semerenko, 531 U.S. 1149, 121 S.Ct. 1091 (2001). The
pleader is required to 'set forth sufficient information
to outline the elements of his claim or to permit inferences
to be drawn that these elements exist."' Kost v.
Kozakewicz, 1 F.3d 176, 183 (3d Cir. 1993) (quoting 5A
Wright & Miller, Fed. Practice & Procedure: Civil 2d
§ 1357 at 340). "While a complaint attacked by a
Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff's obligation to provide
the 'grounds' of his 'entitle[ment] to relief
requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do,
... . 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), ...." Twombly, 550 U.S. at
555, 127 S.Ct. at 1964-65 (internal citations and quotations
motion presents a choice-of-law issue relating to application
of the proper statute of limitations. Courts faced with
choice-of-law issues must "apply the forum's
choice-of-law principles." Noye v. Johnson &
Johnson Servs., Inc., 765 Fed.Appx. 742 (3d Cir. 2019).
The application of the proper statute of limitations is
governed by McCarrell v. Hoffman-LaRoche, 227 N.J.
Jersey Supreme Court has adopted the Second Restatement of
Conflict of Laws with regard to statutes of limitations, and
thus has adopted the following framework:
Whether a claim will be maintained against the defense of the
statute of limitations is determined under the principles
stated in § 6. In general, unless the
exceptional circumstances ...