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Gonzales v. Ethicon Corp., Inc.

United States District Court, D. New Jersey

September 11, 2019

Domingo Gonzales, Plaintiff,
Ethicon Corp., Inc., et al, Defendants.


          PETER G. SHERIDAN, U.S.D.J.

         This 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 protection violations.

         Plaintiff 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.

         The 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).


         Plaintiff 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).

         "In 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.

         Legal Analysis

         On a 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. 1997).

         A 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 omitted).

         Choice of Law

         This 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. 569 (2017).

         The New 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.[1] In general, unless the exceptional circumstances ...

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