United States: New Hampshire Court Applies New Hampshire Product Liability Law And Denies Motion To Dismiss Plaintiff's Product Liability Claims

Last Updated: August 27 2019
Article by John Sullivan

Choice of law analyses are confounding. They involve multi-factor tests and come with histories of decisional law that rarely apply those factors consistently. When you lower the microscope on the details and struggle to find a reliable uniformity, it just isn't there. It begins to seem as if the only real conclusion to be reached from these tests and decisions is to ignore them. That's when you have your moment of clarity. You fall back on first principles and conclude that it's actually quite simple. So you advise your client of the obvious: at the far end of its analysis of multiple factors and case law, the court will mostly likely decide to apply the law of its home state. Would you bet against that prediction?

In Shumaker v. Atrium Med. Corp., 2019 U.S. Dist. LEXIS 136091 (D.N.H. Aug. 13, 2019), a hernia mesh case in New Hampshire federal court, the court chose to apply New Hampshire law to a statute of limitations analysis on a motion to dismiss. Id. at *5. That decision wasn't controversial. It simply applied the law of the forum state to a procedural issue. Id. The Court allowed plaintiff's product liability and express warranty claims to survive under New Hampshire's discovery rule but dismissed plaintiff's implied warranty claim to which the discovery rule did not apply. Id. at *5-10. Simple enough.

But it was during the choice of law analysis on whether to apply the substantive product liability law of New Hampshire or Kansas when things became confounded. Since it was a federal court sitting in diversity, the Court applied New Hampshire choice of law principles, which meant trotting out a five-factor test:

(1) predictability of results; (2) maintenance of reasonable orderliness and good relationship among the states in our federal system; (3) simplification of the judicial task; (4) advancement by the court of its own state’s governmental interests rather than those of other states; and (5) the court’s preference for what it regards as the sounder rule of law.

Id. (emphasis added).

Good luck applying those factors. Predictability of results? How is that possible with a jury? Simplification of the judicial task? What does that even mean? Analyzing these five factors doesn't seem to simplify anything.

Now, with that said, the fifth factor is interesting. That's why we highlighted it: the court's preference for the sounder rule of law. That harkens back to our first principle, which is that the court will apply the law of its home state—the law that it knows. We've just never seen a factor that lays it out so brazenly.

And so the Shumaker court walked through eight Lexis pages discussing New Hampshire's choice of law analysis and its five factors. Id. at *10-18. Toward the end of that analysis, it came to this fifth factor, which it found the most important (no surprise). Which state's law—New Hampshire's or Kansas's—did this New Hampshire court prefer as "sounder"? Well, no surprise, it chose New Hampshire law:

The Kansas Product Liability Act is more than thirty-five years old and, as set out in Shumaker’s objection, appears to restrict a plaintiff’s opportunity to redress injuries caused by defective products. By contrast, New Hampshire common law continues to evolve in response to “the socio-economic facts of life” through the development of case law and provides plaintiffs a fair opportunity to seek redress for their injuries in product liability cases. For these reasons, New Hampshire provides the sounder rule of law.

Id. at *17-18 (citations omitted). And so the court applied New Hampshire law, under which plaintiff's product liability claims (except for one expressly stated under Kansas law) survived the motion to dismiss.

Now, this analysis seems very subjective to us. Suggesting that Kansas's statutory product liability scheme is old and not as sound because it's been on the books for 35 years, while New Hampshire based product liability law is evolving and sounder because it's based on common law isn't all that convincing. We expect that there are sound principles underlying the Kansas legislature's decision to enact its product liability regime and that the case law applying it over the years has shown some evolution, just as the New Hampshire common law on product liability may be based on some very old principles. Similarly, declaring that New Hampshire law is sounder because it gives a plaintiff broader opportunities to recover on its claims seems like a one-sided analysis that doesn't delve into the public policy reasons why Kansas would choose not to allow recoveries against defendants in certain circumstances.

But that's lowering the microscope and delving into the details, and that's when things get confounded. It's simpler to just fall back on first principles. The court applied the law of its home state. That's what you told your client, and you were right.

Choice of law analyses are confounding. They involve multi-factor tests and come with histories of decisional law that rarely apply those factors consistently. When you lower the microscope on the details and struggle to find a reliable uniformity, it just isn't there. It begins to seem as if the only real conclusion to be reached from these tests and decisions is to ignore them. That's when you have your moment of clarity. You fall back on first principles and conclude that it's actually quite simple. So you advise your client of the obvious: at the far end of its analysis of multiple factors and case law, the court will mostly likely decide to apply the law of its home state. Would you bet against that prediction?

In Shumaker v. Atrium Med. Corp., 2019 U.S. Dist. LEXIS 136091 (D.N.H. Aug. 13, 2019), a hernia mesh case in New Hampshire federal court, the court chose to apply New Hampshire law to a statute of limitations analysis on a motion to dismiss. Id. at *5. That decision wasn't controversial. It simply applied the law of the forum state to a procedural issue. Id. The Court allowed plaintiff's product liability and express warranty claims to survive under New Hampshire's discovery rule but dismissed plaintiff's implied warranty claim to which the discovery rule did not apply. Id. at *5-10. Simple enough.

But it was during the choice of law analysis on whether to apply the substantive product liability law of New Hampshire or Kansas when things became confounded. Since it was a federal court sitting in diversity, the Court applied New Hampshire choice of law principles, which meant trotting out a five-factor test:

(1) predictability of results; (2) maintenance of reasonable orderliness and good relationship among the states in our federal system; (3) simplification of the judicial task; (4) advancement by the court of its own state’s governmental interests rather than those of other states; and (5) the court’s preference for what it regards as the sounder rule of law.

Id. (emphasis added).

Good luck applying those factors. Predictability of results? How is that possible with a jury? Simplification of the judicial task? What does that even mean? Analyzing these five factors doesn't seem to simplify anything.

Now, with that said, the fifth factor is interesting. That's why we highlighted it: the court's preference for the sounder rule of law. That harkens back to our first principle, which is that the court will apply the law of its home state—the law that it knows. We've just never seen a factor that lays it out so brazenly.

And so the Shumaker court walked through eight Lexis pages discussing New Hampshire's choice of law analysis and its five factors. Id. at *10-18. Toward the end of that analysis, it came to this fifth factor, which it found the most important (no surprise). Which state's law—New Hampshire's or Kansas's—did this New Hampshire court prefer as "sounder"? Well, no surprise, it chose New Hampshire law:

The Kansas Product Liability Act is more than thirty-five years old and, as set out in Shumaker’s objection, appears to restrict a plaintiff’s opportunity to redress injuries caused by defective products. By contrast, New Hampshire common law continues to evolve in response to “the socio-economic facts of life” through the development of case law and provides plaintiffs a fair opportunity to seek redress for their injuries in product liability cases. For these reasons, New Hampshire provides the sounder rule of law.

Id. at *17-18 (citations omitted). And so the court applied New Hampshire law, under which plaintiff's product liability claims (except for one expressly stated under Kansas law) survived the motion to dismiss.

Now, this analysis seems very subjective to us. Suggesting that Kansas's statutory product liability scheme is old and not as sound because it's been on the books for 35 years, while New Hampshire based product liability law is evolving and sounder because it's based on common law isn't all that convincing. We expect that there are sound principles underlying the Kansas legislature's decision to enact its product liability regime and that the case law applying it over the years has shown some evolution, just as the New Hampshire common law on product liability may be based on some very old principles. Similarly, declaring that New Hampshire law is sounder because it gives a plaintiff broader opportunities to recover on its claims seems like a one-sided analysis that doesn't delve into the public policy reasons why Kansas would choose not to allow recoveries against defendants in certain circumstances.

But that's lowering the microscope and delving into the details, and that's when things get confounded. It's simpler to just fall back on first principles. The court applied the law of its home state. That's what you told your client, and you were right.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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