Jackson v. Boehringer Ingelheim Pharmaceuticals, Inc. et al
Filing
23
ORDER granting in part and denying in part 6 Motion to Dismiss for Failure to State a Claim. Signed by Chief Judge David R. Herndon on 7/17/2013. (dsw)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
EAST ST. LOUIS DIVISION
______________________________________________________________________________
IN RE PRADAXA
)
MDL No. 2385
(DABIGATRAN ETEXILATE) )
3:12-md-02385-DRH-SCW
PRODUCTS LIABILITY
)
Judge David R. Herndon
LITIGATION
)
______________________________________________________________________________
This Document Relates to:
MARK A. JACKSON,
ON BEHALF OF HIMSELF AND
THOSE SIMILARLY SITUATED,
Plaintiff,
v.
Case No. 3:12-cv-60004-DRH-SCW
BOEHRINGER INGELHEIM
PHARMACEUTICALS, INC.,
BOEHRINGER INGELHEIM PHARMA
GMHB & CO. KG, BOEHRINGER
INGELHEIM INTERNATIONAL
GMBH, BIDACHEM S.P.A.
Defendants.
ORDER
Herndon, Chief Judge:
I. INTRODUCTION
The above captioned action was filed by the plaintiff, Mark A. Jackson, a
citizen of Louisiana for injuries he allegedly suffered as a result of ingesting the
prescription drug Pradaxa (dabigatran etexilate). The plaintiff’s claims are
directed against four defendants, Boehringer Ingelheim Pharmaceuticals, Inc.
(“BIPI”), Boehringer Ingelheim International GmbH (“BII”), Boehringer Ingelheim
1
Pharma GmbH & Co. KG (“Pharma KG”), and Bidachem S.p.A. (“Bidachem”),
Pending before the Court is a motion to dismiss (Doc. 6) under Federal Rule of
Civil Procedure 12(b)(6), 12(b)(3) and 12(f) filed by BIPI. The three remaining
defendants are foreign entities that have not been served and do not appear or
join this motion (Doc. 6-1 p. 4 n.6).
BIPI seeks dismissal of all Counts. Specifically, BIPI argues, the Louisiana
Products Liability Act (“LPLA”) provides the exclusive remedy for the plaintiff’s
alleged injuries and the vast majority of the plaintiff’s claims (Counts III - VI, VIII,
and X - XIII) are not cognizable under the LPLA. BIPI further contends that any
remaining claims should be dismissed as inadequately pled under Iqbal/Twombly
and federal/state law.
In the alternative, BIPI contends the case should be
dismissed based on improper venue.
BIPI further argues that the plaintiff’s
purported class claims should be dismissed, under Rule 12(b)(6), or stricken,
under Rule 12(f) (Doc. 6-1 p.2). Finally, BIPI seeks dismissal of any
punitive/exemplary damages and/or requests for attorney’s fees.
The plaintiff responds arguing that he has provided more than enough
information to give BIPI fair notice of his claims and the grounds upon which they
rest. The plaintiff further contends the LPLA does not bar his claims because his
complaint and all counts contained within that complaint satisfy the federal
pleading requirements. In the alternative, in the event the Court determines that
any of the plaintiff’s allegations are deficient, the plaintiff seeks leave to amend his
complaint to correct any deficiencies.
2
II. BACKGROUND
The plaintiff brings this action seeking damages for injuries allegedly
suffered as a result of ingesting the prescription medication Pradaxa.
The
plaintiff’s claims, thirteen in total, are directed against “Defendants” collectively.
Three of the plaintiff’s claims are brought under the Louisiana Products Liability
Act (“LPLA”) and sound in theories of negligence, strict liability, and warranty
(Counts I, II, VII). The plaintiff’s remaining claims are brought outside of the LPLA
and are based on theories of redhibition (IX), negligence (Counts III, IV, XIII),
warranty (Counts V, VI, VIII, X), fraud/misrepresentation (Count XI), and
deceptive trade practices (XII). The plaintiff originally brought his complaint in the
United States District Court for the Eastern District of Louisiana on the basis of
diversity
jurisdiction.
The
action
was
subsequently
transferred
to
this
Multidistrict Litigation.
BIPI, asserts the plaintiff’s claims are subject to dismissal under Federal
Rule of Civil Procedure 12(b)(6). BIPI alleges that most of the plaintiff’s claims
should be dismissed because they fall outside the LPLA which is the only avenue
in Louisiana for bringing product liability claims against a manufacturer. The
claims that do fall within the scope of the LPLA, BIPI contends, should also be
dismissed because the plaintiff has failed to plead any unreasonably dangerous
condition that proximately caused the plaintiff’s alleged injuries.
Additionally,
BIPI asks this court to dismiss the plaintiff’s overall complaint because of
improper venue and to strike the class allegations put forth by the plaintiff.
3
III. PRELIMINARY MATTERS
A. Venue
In the alternative, BIPI has moved for this suit to be dismissed pursuant to
Federal Rule of Civil Procedure 12(B)(3) for improper venue (Doc. 6-1 p. 24). Rule
12(B)(3) allows a party to move for dismissal of an action when it is not filed in
the proper venue. When considering a motion to dismiss under Rule 12(b)(3), the
plaintiff bears the burden of establishing proper venue. See Bremen v. Zapata
Off Shore Co., 407 U.S. 1, 18, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972); Grantham
v. Challenge–Cook Bros., Inc. et al., 420 F.2d 1182, 1184 (7th Cir.1969).
The Court must take all allegations in the complaint as true, draw all
reasonable inferences in favor of the plaintiff, and may consider matters outside
the complaint without converting the motion to one for summary judgment.
Faulkenberg v. CB Tax Franchise Sys., LP, 637 F.3d 801, 809-812 (7th Cir.
2011).
The venue of all civil actions brought in district courts of the United States
is governed by 28 U.S.C. § 1391. 28 U.S.C. § 1391(a). Under 28 U.S.C. § 1391(b)
venue is proper in:
1) a judicial district in which any defendant resides, if all defendants
are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of
property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought
as provided in this section, any judicial district in which any
4
defendant is subject to the court's personal jurisdiction with respect
to such action.
28 U.S.C. § 1391(b). Further, with regard to residency, 28 U.S.C. § 1391(c)
provides, in pertinent part, as follows:
(2) an entity with the capacity to sue and be sued in its common
name under applicable law, whether or not incorporated, shall be
deemed to reside, if a defendant, in any judicial district in which
such defendant is subject to the court's personal jurisdiction with
respect to the civil action in question and, if a plaintiff, only in the
judicial district in which it maintains its principal place of business;
and
(3) a defendant not resident in the United States may be sued in any
judicial district, and the joinder of such a defendant shall be
disregarded in determining where the action may be brought with
respect to other defendants.
28 U.S.C. § 1391(c). Finally, with regard to the residency of corporations in states
with multiple districts, 28 U.S.C. § 1391(d) provides as follows:
For purposes of venue under this chapter, in a State which has more
than one judicial district and in which a defendant that is a
corporation is subject to personal jurisdiction at the time an action is
commenced, such corporation shall be deemed to reside in any
district in that State within which its contacts would be sufficient to
subject it to personal jurisdiction if that district were a separate
State, and, if there is no such district, the corporation shall be
deemed to reside in the district within which it has the most
significant contacts.
28 U.S.C. § 1391(d).
The complaint states that venue is proper in the Eastern District of
Louisiana pursuant to 28 U.S.C. §1391(b)(1) because the plaintiff is a resident of
the state of Louisiana. As noted by BIPI, this is clearly wrong. Section 1391(b)(1)
5
provides that a civil action may be brought in “a judicial district in which any
defendant resides” as long as “all defendants are residents of the State in which
the district is located.” Accordingly, the plaintiff’s state of residence is irrelevant.
Additionally, the complaint states that venue is proper in the Eastern
District of Louisiana “pursuant to 28 U.S.C. §1391 because a substantial part of
the events giving rise to Plaintiff’s claims occurred, in part, in the Eastern District
of Louisiana” (Doc. 1 ¶ 9). BIPI contends that this assertion of venue is not
sufficient because “the Complaint contains no facts to establish venue on this
basis” (Doc. 6-1 p. 24). Specifically, BIPI states that the complaint contains “no
facts stating where the Pradaxa allegedly was purchased or ingested, the name or
location of Plaintiff’s prescribing physician(s), the name or location of any medical
facility where Plaintiff may have received treatment, or any other details that
would indicate where a substantial part of the events in this case occurred” (Doc.
6-1 pp. 24-25).
While the complaint is devoid of the facts noted by BIPI, the complaint does
assert that BIPI (and the three foreign defendants) have been and are doing
business in the State of Louisiana and are subject to personal jurisdiction in the
State of Louisiana. BIPI does not dispute this assertion. As BIPI is subject to
personal jurisdiction in the State of Louisiana it is deemed to reside in any
judicial district in Louisiana. See 28 U.S.C. § 1391(c) and (d). With regard to the
foreign defendants, their joinder is disregarded for the purpose of determining
venue as it relates to BIPI. 28 U.S.C. § 1391(c)(3). Finally, the Court notes that the
6
foreign defendants have not entered their appearance, joined in BIPI’s motion to
dismiss, or asserted any venue arguments. (venue is a personal defense and may
not be raised by BIPI on behalf of the foreign defendants). See Vance Trucking
Co. v. Canal Ins. Co., 338 F.2d 943, 944 (4th Cir.1964) (citing Camp v. Gress,
250 U.S. 308, 39 S.Ct. 478, 63 L.Ed. 997 (1919)). See also Id. (“Venue is a
doctrine of convenience and is not jurisdictional, and since the protesting parties
are not inconvenienced by [the joined defendant’s] nonresidence, they cannot
complain that the requirements of the venue statute are not satisfied as to him.”).
Considering the above, the Court finds that the complaint contains
sufficient allegations for establishing that venue is proper in the Eastern District
of Louisiana. 1
B. Class Allegations
Before addressing the individual claims at issue here, the court will address
the purported class allegations and BIPI’s motion to strike or dismiss the same.
BIPI contends that the class allegations contain a mere formulaic recitation and,
as a result, must be dismissed under Rule 12(b)(6) and the Iqbal/Twombly
pleading standard. In the alternative, BIPI contends that the class allegations
should be stricken under Rule 12(f) because it is facially apparent from the
pleadings that there is no ascertainable class. The plaintiff has not sought to
certify the purported class, contends that consideration of the class allegations is
1
This case was transferred here for inclusion in this multidistrict litigation for pretrial purposes.
Thus, the venue analysis properly considers whether venue is proper in the Eastern District of
Louisiana – the venue where the action originated.
7
premature, and has asked the Court to allow additional time to brief class related
issues.
Under other circumstances, the Court might agree with the plaintiff and find
that BIPI’s motion, with regard to the class allegations, is premature. In the
instant case, however, the class allegations are so woefully deficient that dismissal
is required under Rule 12(b)(6) and the Iqbal/Twombly pleading standard. The
plaintiff’s class allegations amount to nothing more than a mere recital of the
elements in Rule 23 in relation to an unidentified class. 2 Accordingly, the Court is
dismissing the plaintiff’s class allegations without prejudice. The Court will grant
leave to amend the complaint. However, the Court notes that, given the nature of
this case, it is highly unlikely that a statewide class governed by the law of
Louisiana could meet the requirements of Rule 23(b)(3). See e.g., Brandner v.
Abbott Laboratories, Inc.
2012 WL 195540, 2 (E.D. La. Jan. 23, 2012).
Moreover, a nationwide class, governed by the laws of all 50 states is likely
unmanageable. See In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1015 (7th
Cir. 2002).
IV. APPLICABLE LEGAL STANDARDS
A. Federal Law
Under the Erie doctrine, federal courts sitting in diversity apply state
substantive law and federal procedural law. Erie R.R. Co. v. Tompkins, 304 U.S.
2
The purported class is presently represented by the plaintiff and defined as “those similarly
situated.”
8
64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). With regard to federal law, the Court
must determine whether it is governed by the law of the Seventh Circuit or the law
of the transferor forum. Although the Seventh Circuit has yet to decide which law
governs federal claims in cases transferred under 28 U.S.C. § 1407, it has
adopted the rationale of Korean Air when resolving the question under 28 U.S.C.
§ 1404(a), which authorizes district courts to transfer cases for reasons of
convenience. See McMasters v. U.S., 260 F.3d 814, 819 (7th Cir. 2001) Eckstein
v. Balcor Film Investors, 8 F.3d 1121, 1126 (7th Cir. 1993), cert. denied, 510
U.S. 1073, 114 S.Ct. 883, 127 L.Ed.2d 78 (1994).
Under the Korean Air
rationale, when an action is transferred under § 1404(a), a transferee court is
“free to decide [federal claims] in the manner it views as correct without deferring
to the interpretation of the transferor circuit.” McMasters v. U.S., 260 F.3d at 819
(quoting Korean Air, 829 F.2d at 1174). The law of the transferor forum is only
applied when the applicable federal law is intended to be geographically nonuniform. Eckstein, 8 F.3d at 1127. Considering the foregoing cases, this Court
holds that Seventh Circuit law applies to questions of federal law in the instant
case.
B. Louisiana Law Governs the Plaintiff’s Claims
The Court must also determine which state’s substantive law governs. BIPI
expressly contends that the substantive law of Louisiana governs (Doc. 6-1 p. 8).
In his memoranda in opposition to BIPI’s motion, the plaintiff addresses his
claims
in
terms
of
Louisiana
law,
9
and
thus
implicitly
agrees
that
the substantive law of Louisiana applies. In addition, the Court notes that there is
a significant relation between Louisiana and the subject dispute: Louisiana is the
state where the plaintiff resided when he was prescribed Pradaxa, when he
ingested Pradaxa, and when he was allegedly injured by Pradaxa. Because the
parties are in agreement regarding the application of Louisiana law and there is a
reasonable relation between Louisiana and the subject dispute, the Court will
apply the substantive law of Louisiana. See Home Valu, Inc. v. Pep Boys, 213
F.3d 960, 963 (7th Cir. 2000) (citing Harter v. Iowa Grain Co., 211 F.3d 338,
352–53 n. 12 (7th Cir. 2000) (“[W]e forego choice of law analysis when the parties
agree on the law that governs a dispute and there is a reasonable relation between
the dispute and the forum whose law has been selected.”)).
C. Dismissal Under Rule 12(b)(6) - Standard of Review
The purpose of a Rule 12(b) motion to dismiss is not to decide the merits of
the case. A Rule 12(b)(6) motion tests the sufficiency of the complaint. Gibson v.
City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In reviewing a motion to
dismiss under Rule 12(b)(6), the Court takes as true all factual allegations in
plaintiff’s
complaint
and
draws
all reasonable
inferences
in
his
favor.
Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007);
Long, 182 F.3d at 554.
To survive a Rule 12(b)(6) motion to dismiss, the claim first must comply
with Rule 8(a) by providing “a short and plain statement of the claim showing that
10
the pleader is entitled to relief” (Fed.R.Civ.P.8(a)(2)), such that the defendant is
given “fair notice of what the * * * claim is and the grounds upon which it rests.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d
80 (1957)). Second, the factual allegations in the claim must be sufficient to raise
the possibility of relief above the “speculative level,” assuming that all of the
allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc.,
496 F.3d 773, 776 (7th Cir.2007) (quoting Twombly, 550 U.S. at 555). “Detailed
factual allegations” are not required, but the plaintiff must allege facts that, when
“accepted as true, * * * ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)
(quoting Twombly, 550 U.S. at 555). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. “[O]nce a
claim has been stated adequately, it may be supported by showing any set of facts
consistent with the allegations in the complaint.” Twombly, 550 U.S. at 563.
V. ANALYSIS
A. Applicability of the Louisiana Products Liability Act
1. Exclusivity of the LPLA
The LPLA provides “the exclusive theories of liability for manufacturers for
damage caused by their products.” La. Rev. Stat. Ann. § 9:2800.52. “A claimant
may not recover from a manufacturer for damage caused by a product on the
basis of any theory of liability that is not set forth in [the LPLA].” Id. (emphasis
11
added). See also Stahl v. Novartis Pharms. Corp., 283 F.3d 354, 261 (5th Cir.
2002) (non-LPLA causes of action are not available against the manufacturer of a
product for damages caused by that product).
The only exception to LPLA exclusivity is for redhibition claims for
economic loss. See Touro Infirmary v. Sizeler Architects, 947 So.2d 740, 744
(La. App. 2006) (“the LPLA subsumes all possible causes of action [against a
manufacturer] with the exception of redhibition”); De Atley v. Victoria’s Secret
Catalogue, LLC, 876 So.2d 112, 115 (La. App. 2004) (Louisiana courts have
interpreted the LPLA as preserving a plaintiff’s claim of redhibition as a cause of
action only to the extent that the claimant seeks to recover the value of the
product or other economic loss).
2. The LPLA Applies Only to Manufacturers
The LPLA applies only to manufacturers and does not govern claims
against non-manufacturing sellers. See La. Rev. Stat. 9.2800.53. A manufacturer
is defined as “a person or entity who is in the business of manufacturing a
product for placement into trade or commerce.” Id. § 2.800.53(1). Pursuant to
the LPLA, “manufacturing a product” means “producing, making, fabricating,
constructing, designing, remanufacturing, reconditioning or refurbishing a
product.” Id.
A seller, by contrast, is defined as one “who is not a manufacturer and who
is in the business of conveying title to or possession of a product to another
12
person or entity in exchange for anything of value.” Id. Because the LPLA does not
apply to non-manufacturing sellers, seller liability is judged according to the preLPLA standard – in essence a negligence standard. See Slaid v. Evergreen
Indem., Ltd., 32,363, 745 So. 2d 793, 797 (La. App. Ct. 1999) (nonmanufacturing seller is liable for damages caused by a product he sold “if he
knew or should have known that the product sold was defective, and failed to
declare it.”).
Under certain circumstances, a seller can also be a manufacturer under the
LPLA. See La. Rev. Stat. § 9:2800.53(1)(a)-(d). First, a seller “who labels a
product as his own or who otherwise holds himself out to be the manufacturer of
the product” is a manufacturer. Id. § 53(a)(a). Second, a seller is a manufacturer
if he is in the business of importing or distributing “the product of an alien
manufacturer” for resale and “the seller is the alter ego of the alien manufacturer.”
Id. § 53(1)(d). A product of an alien manufacturer is “a product that is
manufactured outside the United States by a manufacturer who is a citizen of
another country or who is organized under the laws of another country.” Id.
3. The LPLA Governs the Plaintiff’s Claims Against the Defendants
In light of the legal principles discussed above, the plaintiff’s non-LPLA
claims sounding in negligence (Counts III, IV, XIII), warranty (Counts V, VI, VIII,
X), fraud/misrepresentation (Count XI), and deceptive trade practices (XII) are
13
precluded by the LPLA to the extent that the defendants are manufacturers of
Pradaxa as that term is defined in the LPLA.
In the instant case, the plaintiff alleges that the “Defendants 3…designed,
manufactured, marketed, advertised, distributed, promoted, labeled, tested and
sold Pradaxa” (Doc. 1 ¶ 10) (emphasis added). 4 See also (Doc. 1 p. 1) (defining
Pradaxa as “a prescription medication used as a blood thinner, which at all times
relevant
hereto,
was
manufactured,
designed,
tested,
packaged,
labeled,
marketed, advertised, distributed, and sold by Defendants Boehringer Ingelheim
Pharmaceuticals, Inc., Boehringer Ingelheim Pharma GmbH & Co. KG,
Boehringer Ingelheim International GmbH, and Bidachem S.p.A.”) (emphasis
added).
Considering only the allegations in the plaintiff’s complaint, as is
appropriate at this stage of the litigation, the non-LPLA claims are precluded and
must be dismissed. The plaintiff alleges that his injuries are the fault of the
defendants as the alleged manufacturers Pradaxa. Accordingly, the LPLA controls.
The LPLA’s exclusivity provision bars all of the plaintiff’s claims beyond the scope
of the LPLA except for any claim that the plaintiff may have in redhibition for
economic loss only.
3
Defined as Boehringer Ingelheim Pharmaceuticals, Inc., Boehringer Ingelheim Pharma GmbH &
Co. KG, Boehringer Ingelheim International GmbH, and Bidachem S.p.A. (Doc. 1 p. 1).
4
Significantly, the plaintiff does not plead in the alternative that the defendants are either
manufacturers or sellers of Pradaxa.
14
Therefore, BIPI’s motion to dismiss the non-LPLA claims sounding in
negligence
(Counts
III,
IV,
XIII),
warranty
(Counts
V,
VI,
VIII,
X),
fraud/misrepresentation (Count XI), and deceptive trade practices (XII) is
GRANTED. These claims are dismissed without prejudice, with leave to amend,
should discovery reveal that the named defendants are non-manufacturing
defendants.
B. Sufficiency of the LPLA Claims
Three of the plaintiff’s claims are cognizable under the LPLA: Count I
(Failure to Warn); Count II (combining claims alleging Design Defect, Marketing
Defect, Construction or Composition Defect and Manufacturing Defect); and
Count VII (Breach of Express Warranty).
BIPI argues that the plaintiff has failed to sufficiently allege any claim under
the LPLA. The Court, finds that the factual allegations in the plaintiff’s complaint
are sufficient to state a claim under the LPLA for failure to warn (Count I) and for
design/marketing defect (Count II). The plaintiff, however, has failed to allege facts
sufficient to state a claim under the LPLA for breach of express warranty.
1. Requirements for Stating a Claim Under the LPLA
To state a claim under the LPLA, a plaintiff must establish: “damage
proximately caused by a characteristic of the product that renders the product
unreasonably dangerous when such damage arose from a reasonably anticipated
use of the product by the claimant or another person or entity.” La. R.S.
15
9:2800.54A. The product is unreasonably dangerous if, and only if, the product is
(1) unreasonably dangerous in construction, 92) unreasonably dangerous in
design, (3) unreasonably dangerous due to an inadequate warning, or (4)
unreasonably dangerous because it does not conform to an express warranty. La.
R.S. 9:2800.54B. Stated differently, to state a cause of action under the LPLA, the
plaintiff must allege as follows:
1. that the defendant is a manufacturer of the product;
2. that the claimant’s damage was proximately caused by a
characteristic of the product;
3. that the characteristic made the product unreasonably dangerous
in one of the four ways provided in the statute; and
4. that the claimant’s damage arose from a reasonably anticipated
use of the product by the claimant or someone else.
Jefferson v. Lead Industries Ass'n, Inc., 106 F.3d 1245, 1251 (5th Cir. 1997).
2. Count 1 (Failure to Warn) and Count 2 (Design and Marketing
Defects)
The plaintiff contends that Pradaxa is defective and unreasonably
dangerous in design as well as unreasonably dangerous due to an inadequate
warning. As discussed above, the plaintiff contends that the defendants
manufactured Pradaxa. The plaintiff further contends that he was prescribed
Pradaxa and as a result suffered mental and physical injuries.
The plaintiff goes on to allege that the defendants failed to provide timely
and adequate warnings to physicians, pharmacies, and consumers, including the
plaintiff and the plaintiff’s prescribing physician. Specifically, the plaintiff alleges
16
that the defendants failed to include adequate warnings and/or adequate clinical
data regarding the risk of irreversible and/or uncontrollable bleeds, the lack of a
reversal agent, and how to intervene and stabilize a patient should a bleed occur
(Doc. 1 ¶¶ 32-38, 41, 57, 59).
The plaintiff further contends that Pradaxa was defective because its levels
in the blood are difficult or impossible to assess and bleeds cannot be stopped
since there is no known reversal agent (Doc. 1 ¶ 29). The plaintiff claims that
these defects place patients at an increased risk for developing life-threatening
bleeds (Doc. 1 ¶ 29).
The plaintiff further alleges that the Pradaxa administered to him was
defective in design and formulation because the benefits of taking the drug did not
outweigh the serious and “undisclosed” risks of its use. (Doc. 1, p. 21, ¶72-73).
Additionally, the plaintiff alleges that the “one size fits all” dosage of Pradaxa is
unreasonably dangerous, there are no patients for whom the benefits of Pradaxa
outweigh the risks of ingesting it, and there were safer alternatives, such as
Warfarin, that did not carry the same risks and dangers as Pradaxa. Id. Finally,
the plaintiff claims that as a direct and proximate result of the design, marketing,
and manufacturing defects of Pradaxa, he suffered serious and permanent injury.
(Doc. 1, p. 21, ¶80-82). These allegations combined with other allegations
contained in Counts I and II of the complaint are sufficient to survive BIPI’s
motion to dismiss.
17
The Court notes BIPI’s assertions regarding data that was contained in
Pradaxa’s label regarding the risk of bleeding and accidental overdose as well as
the data pertaining to the lack of a reversal agent. However, the fact that the
Pradaxa label contained some information pertaining to a risk of bleeding and/or
referenced the lack of a reversal agent does not establish that the warnings and
information contained in the Pradaxa label were adequate and does not warrant
dismissal at this stage in the litigation.
For the reasons discussed above, the motion to dismiss as to Counts I and
II is DENIED.
3. Count VII (Express Warranty)
The plaintiff alleges that Pradaxa is unreasonably dangerous due to nonconformance to an express warranty. The plaintiff asserts that the defendants
“researched, developed, designed, tested, manufactured, inspected, labeled,
distributed, marketed, promoted, sold, and/or otherwise released into the stream
of commerce Pradaxa, in the course of the same, directly advertised or marketed
the product to the FDA, health care professionals and consumers, including
Plaintiff, or persons responsible for consumer” (Doc. 1 ¶ 118). The plaintiff
further alleges that Pradaxa “materially failed to conform to those representations
made by Defendants in package inserts, and otherwise, concerning the properties
and effects of Pradaxa” (Doc. 1 ¶ 119). The plaintiff, however, fails to identify
“those representations” made by the defendants. In other words, the plaintiff has
18
not identified any express warranty made by the defendants that could be the
basis for the plaintiff’s breach of express warranty claim. Because the plaintiff
fails to specify any representation or statement of alleged fact or promise about
Pradaxa that could form the basis of an express warranty claim, the claim fails
the Iqbal/Twombly pleading standard.
Accordingly, the motion to dismiss as to Count VII is GRANTED. The
dismissal is without prejudice and the plaintiff is granted leave to amend.
C. Count IX Redhibition Claim
Under the LPLA, a claim for redhibition provides that “[t]he seller warrants
the buyer against redhibitory defects, or vices, in the thing sold.” La. Civ. C. Art.
2520.
A defect is redhibitory when it renders the thing useless, or its use so
inconvenient that it must be presumed that a buyer would not have bought
the thing had he known of the defect. The existence of such defect gives a
buyer the right to obtain rescission of the sale.
A defect us redhibitory also when, without rendering the thing totally
useless, it diminishes its usefulness or its value so that it must be
presumed that a buyer would still have bought it but for a lesser price. The
existence of such a defect limits the right of a buyer to a reduction of the
price.
La. Civ. C. Art. 2520
The LPLA allows for a redhibition claim only to the extent that the
plaintiff seeks recovery of economic losses. Here, the
plaintiff
alleges
that
Pradaxa contains a vice or defect which renders the product useless or
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unreasonably dangerous. (Doc. 1, p. 32-33, ¶127-30). Accordingly, the plaintiff
claims he is entitled to a “rescission of the sale of the subject product” or “a
reduction in the purchase price,” as well as attorney’s fees. (Doc. 1, p. 32-33,
¶128-30).
BIPI argues that Pradaxa does not contain a vice or defect and that the drug
performed exactly as it was supposed to. (Doc. 6-1, p. 18). Furthermore, BIPI
alleges that the plaintiff’s complaint “otherwise contains no sufficient factual
allegation of a discernible economic loss that could sustain a claim for
redhibition.” (Doc. 6-1, p. 18). Having already deemed Counts I and II of the
plaintiff’s complaint as sufficiently stating a claim under the LPLA, this Court also
rejects BIPI’s argument relating to redhibition and finds that plaintiff’s redhibition
claim should be preserved for further proceedings.
Accordingly, BIPI’s motion to dismiss is DENIED as to the plaintiff’s
redhibition claim (Count IX).
D. Request for Exemplary and/or Attorney’s Fees Damages
To the extent that the plaintiff requests exemplary/punitive damages for the
LPLA claims that have not been dismissed (Doc. 1 ¶154(C) and attorney’s fees for
the same (Doc. 1 p. 40), such request must be dismissed. Louisiana law does not
permit exemplary/punitive damages, except where expressly authorized by statute.
See International Harvester Credit v. Seale, 518 So.2d 1039 (La. 1988). The
LPLA does not provide for recovery of punitive damages or attorney’s fees. See
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International Harvester Credit v. Seale, 518 So.2d 1039 (La. 1988); Bladen v.
C.B. Fleet Holding Co., 487 F. Supp. 2d 759 (W.D. La. 2007); La. R.S. §
9:2800.53(5) (expressly providing that attorney’s fees are not recoverable).
Therefore, the motion to dismiss is GRANTED insofar as it seeks dismissal
of the plaintiff’s request for punitive/exemplary damages and/or attorney’s fees in
relation to the non-dismissed LPLA claims.
Likewise, exemplary/punitive damages are not recoverable under Louisiana
redhibition law. Accordingly, the motion to dismiss is GRANTED to the extent
that it seeks dismissal of the plaintiff’s requests for exemplary/punitive damages
in relation to the redhibition claim.
It appears that attorney’s fees are recoverable under the redhibition
articles, only “insofar as those fees relate to the recovery of purely economic
loss”). DeAtley v. Victoria's Secret Catalogue, L.L.C., 876 So. 2d 112, 115 (La.
App. 2004). Accordingly, the motion to dismiss is DENIED to the extent that it
seeks dismissal of the plaintiff’s request for attorney’s fees for the redhibition
claim in relation to purely economic loss.
V. CONCLUSION
In light of the legal principles discussed above, the Court ORDERS as
follows:
The plaintiff’s non-LPLA claims sounding in negligence (Counts III, IV, XIII),
warranty (Counts V, VI, VIII, X), fraud/misrepresentation (Count XI), and
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deceptive trade practices (XII) are DISMISSED without prejudice, with leave to
refile, should facts reveal that the defendants are non-manufacturing defendants.
The plaintiff’s LPLA claim for breach of express warranty (Count VII) is
DISMISSED without prejudice, with leave to refile.
The plaintiff’s class allegations are DISMISSED without prejudice, with
leave to refile.
The motion to dismiss is DENIED to the extent that it seeks dismissal of
the plaintiff’s LPLA claims for failure to warn (Count I) and design or marketing
defects (Count II).
The motion to dismiss is DENIED to the extent that it seeks dismissal of
plaintiff’s redhibition claim (Count IX).
The motion to dismiss is GRANTED to the extent that it seeks dismissal of
any request for punitive/exemplary damages and/or attorney’s fees in relation to
the non-dismissed LPLA claims. Any such requests are DISMISSED WITH
PREJUDICE.
The motion to dismiss is GRANTED to the extent that it seeks dismissal of
any request for punitive/exemplary damages in relation to the redhibition claim,
Any such requests are DISMISSED WITH PREJUDICE.
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The motion to dismiss is DENIED to the extent that it seeks dismissal of
any request for attorney’s fees, for purely economic loss, in relation to the
plaintiff’s redhibition claim.
IT IS SO ORDERED.
Digitally signed by
David R. Herndon
Date: 2013.07.18
17:09:17 -05'00'
Chief Judge
United States District Court
Date: July 18, 2013
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