Carl Alexander Cohen v. Boston Scientific Corporation

2021 DNH 033

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Carl Alexander Cohen

v. Case No. 20-cv-943-PB Opinion No. 2021 DNH 033 Boston Scientific Corporation

ORDER

Boston Scientific Corporation has moved to dismiss Carl

Alexander Cohen’s breach of warranty claim because Cohen failed

to give it timely notice of the claim in violation of N.H. Rev.

Stat. Ann. § 382-A:2-607(3). That provision, by its plain

terms, applies only to someone who is a “buyer.” Here, it is

undisputed that Cohen is not a buyer. Although the official

comments to this section can be read to suggest that any

litigant who may wish to assert a breach of warranty claim must

give notice of his claim to any seller, such comments are not

part of the statute and cannot be relied on to change the

meaning of unambiguous statutory text. Accordingly, I agree

with those courts that have concluded that the notice

requirement does not apply to someone who is not a buyer. See,

e.g., Cole v. Keller Indus., Inc., 132 F.3d 1044, 1047-48 (4th

Cir. 1998); McKnelly v. Sperry Corp., 642 F.2d 1101, 1107 (8th

Cir. 1981). Boston Scientific’s motion to dismiss (Doc. No. 16)

is denied.

1 SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

February 5, 2021

cc: Alfred T. Catalfo, Esq. Anne Dieruf, Esq. Benjamin R. Novotny, Esq. Emily D. Steeb, Esq. Lauren Pritchard, Esq. Michael J. Carroll, Esq. Edward J. Sackman, Esq. William Joseph Flanagan, Esq.