Matos v. Eli Lilly and Company

Filing 20

MEMORANDUM AND ORDER granting in part and denying in part 15 Defendant's Motion to Dismiss.. The motion is granted with respect to plaintiff's claims of negligence, negligence per se, breach of implied warranty, breach of express warrant y, misrepresentation by omission, and fraudulent misrepresentation, and those claims are hereby dismissed. Plaintiff's strict liability claim is deemed asserted under the Kansas Product Liability Act (KPLA). The motion is also granted with res pect to plaintiff's claim under the Kansas Consumer Protection Act (KCPA), although plaintiff is granted leave to amend that claim on or before June 4, 2012. The motion is denied with respect to plaintiff's claim under the KPLA. Signed by District Judge John W. Lungstrum on 5/23/2012. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

NANCI MATTOS,

)
)
Plaintiff,
)
)
v.
)
)
ELI LILLY AND COMPANY,
)
)
Defendant.
)
)
_______________________________________)

Case No. 12-1014-JWL

MEMORANDUM AND ORDER
This diversity action is presently before the Court on defendant’s motion to
dismiss (Doc. # 15). For the reasons set forth below, the motion is granted in part and
denied in part. The motion is granted with respect to plaintiff’s claims of negligence,
negligence per se, breach of implied warranty, breach of express warranty,
misrepresentation by omission, and fraudulent misrepresentation, and those claims are
hereby dismissed. Plaintiff’s strict liability claim is deemed asserted under the Kansas
Product Liability Act (KPLA). The motion is also granted with respect to plaintiff’s
claim under the Kansas Consumer Protection Act (KCPA), although plaintiff is granted
leave to amend that claim on or before June 4, 2012. The motion is denied with respect
to plaintiff’s claim under the KPLA.

I.

Plaintiff’s Complaint

Plaintiff alleges the following facts in her complaint: Defendant manufactures
the prescription medication Cymbalta, which is indicated for various mental health
disorders. In November 2009, plaintiff’s physician prescribed Cymbalta for her anxiety,
and plaintiff began taking the drug. Subsequently, as a result of her taking Cymbalta,
plaintiff suffered an adverse skin reaction. Specifically, plaintiff was diagnosed with
Stevens-Johnson Syndrome (SJS), and she developed a severe cutaneous adverse
reaction (SCAR).
Plaintiff alleges that defendant knew or should have known in 2009 that Cymbalta
presented a substantial risk of a patient’s development of SCAR disorders, including
SJS, which may result in severe injury or death. Plaintiff further alleges that defendant
failed to include an adequate warning of that risk in Cymbalta’s product insert or its
Patient Medication Guide (PMG). Plaintiff also alleges that Cymbalta was defectively
designed in light of that risk. Based on those allegations, plaintiff asserts the following
causes of action: strict product liability; negligence; negligence per se, based on an
alleged violations of federal and Kansas state laws and regulations; breach of implied
warranty; breach of express warranty; misrepresentation by omission; fraudulent
misrepresentation; and a violation of the KCPA, K.S.A. §§ 50-626, -627.

2

II.

Standards for a Motion to Dismiss

Defendant seeks dismissal of most of plaintiff’s claims for failure to state a claim
pursuant to Fed. R. Civ. P. 12(b)(6). The Court will dismiss a cause of action for failure
to state a claim only when the factual allegations fail to “state a claim to relief that is
plausible on its face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), or
when an issue of law is dispositive, see Neitzke v. Williams, 490 U.S. 319, 326 (1989).
The complaint need not contain detailed factual allegations, but a plaintiff’s obligation
to provide the grounds of entitlement to relief requires more than labels and conclusions;
a formulaic recitation of the elements of a cause of action will not do. See Bell Atlantic,
550 U.S. at 555. The Court must accept the facts alleged in the complaint as true, even
if doubtful in fact, see id., and view all reasonable inferences from those facts in favor
of the plaintiff, see Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006). Viewed as
such, the “[f]actual allegations must be enough to raise a right to relief above the
speculative level.” Bell Atlantic, 550 U.S. at 555. The issue in resolving a motion such
as this is “not whether [the] plaintiff will ultimately prevail, but whether the claimant is
entitled to offer evidence to support the claims.” Swierkiewicz v. Sorema N.A., 534 U.S.
506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

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III.

Merger of Causes of Action

Defendant seeks dismissal of all claims other than a single claim under the KPLA
on the basis that those other claims are all merged into a single product liability claim
under the KPLA, K.S.A. § 60-3301 et seq.1 Section 60-3302(c) defines the claim
authorized by the KPLA as follows:
“Product liability claim” includes any claim or action brought for harm
caused by the manufacture, production, making, construction, fabrication,
design, formula, preparation, assembly, installation, testing, warnings,
instructions, marketing, packaging, storage or labeling of the relevant
product. It includes, but is not limited to, any action based on[] strict
liability in tort, negligence, breach of express or implied warranty, breach
of, or failure to, discharge a duty to warn or instruct, whether negligent or
innocent, misrepresentation, concealment or nondisclosure, whether
negligent or innocent, or under any other substantive legal theory.
Id. § 60-3302(c). By virtue of this definition, the KPLA “consolidates all product
liability actions, regardless of theory, into one basis for liability.” See David v. Hett, 293
Kan. 679, 685 (2011) (citing Patton v. Hutchinson Wil-Rich Mfg. Co., 253 Kan. 741, 756
(1993)). Thus, because they seek redress for harm caused by Cymbalta’s design or
warnings, plaintiff’s strict liability, negligence, warranty, and misrepresentation claims
(but not her claim under the KCPA) are merged into and subsumed by a single claim
under the KPLA. See Cooper v. Zimmer Holdings, Inc., 320 F. Supp. 2d 1154, 1163 (D.

1

Plaintiff alleges that she is a Kansas resident, and the parties agree that plaintiff’s
claims are governed by Kansas law. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S.
487, 496 (1941) (forum state’s choice-of-law rules determine which state’s substantive
law applies); Ling v. Jan’s Liquors, 237 Kan. 629, 634-35 (1985) (in Kansas, tort claims
are governed by the law of the state in which the tort occurred, that is, where the wrong
was felt).
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Kan. 2004) (Lungstrum, J.) (stating reasons why KCPA claims should not merge into
KPLA claims).
Plaintiff argues that her fraud claims also should not be merged into her KPLA
claim. The statute’s definition clearly encompasses claims based on misrepresentation
or concealment, however, or on any “substantive legal theory.” See K.S.A. § 603302(c). Plaintiff’s misrepresentation claims are based on her same allegations that
defendant failed to warn of risks associated with Cymbalta; accordingly, those claims
are also subsumed by the KPLA claim.
Plaintiff also notes that she seeks damages for medical expenses and for lost
wages, and she argues that she may seek to recover such “economic” damages under her
alternative causes of action. For purposes of the above definition of a product liability
claim, “harm” is defined as follows:
“Harm” includes: (1) Damage to property; (2) personal physical injuries,
illness and death; (3) mental anguish or emotional harm attendant to such
personal physical injuries, illness or death. The term “harm” does not
include direct or consequential economic loss.
Id. § 60-3302(d). Plaintiff argues that because a product liability claim under the KPLA
cannot redress “economic loss,” her claims for medical expenses and lost wages may
proceed under other theories. See, e.g., Gonzalez v. Pepsico, Inc., 489 F. Supp. 2d 1233,
1242-43 (D. Kan. 2007) (claims for economic damage caused by defective products are
not foreclosed by the KPLA but may be brought under a different legal theory, for
instance under the UCC).

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The Court rejects this argument. Kansas courts have defined “economic loss” for
purposes of this exception to the KPLA as follows:
[E]conomic loss [under the KPLA] includes damages for inadequate value,
costs of repair, replacement costs, and loss of use of the defective product.
Generally economic loss is a result of the failure of the product to perform
to the level expected by the buyer, which is the core concern of traditional
contract law.
Northwest Ark. Masonry, Inc. v. Summit Specialty Prods., Inc., 29 Kan. App. 2d 735,
742 (2001) (citations omitted); see also City of Winfield, Kan. v. Key Equip. & Supply
Co., 2012 WL 1207256, at * 2 (D. Kan. Apr. 11, 2012) (citing Northwest’s definition of
economic loss); Gonzalez, 489 F. Supp. 2d at 1242 (same). Plaintiff’s claims for medical
expenses and lost wages do not constitute damages to the defective product itself or
consequential business damages caused by the product’s defect that are typically within
the province of contract or warranty law; rather, these damages, although pecuniary, are
traditional tort remedies that relate to plaintiff’s physical injury claim. Thus, all of
plaintiff’s damages are recoverable under the KPLA and do not provide a basis for any
alternative cause of action. Cf. Kestrel Holdings I, L.L.C. v. Learjet Inc., 316 F. Supp.
2d 1071, 1076 (D. Kan. 2004) (plaintiff’s alleged damages could be recovered under
claims outside the KPLA because they related to the defective product itself and did not
relate to personal physical injuries).
Finally, plaintiff argues that her non-KPLA claims need not be dismissed because
of their merger into a single KPLA claim. Plaintiff cannot recover under those
alternative theories of liability, however; thus, there is no reason to allow such causes of
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action asserted by plaintiff to continue as claims in this case. Accordingly, plaintiff’s
claims for negligence, negligence per se, breach of implied warranty, breach of express
warranty, misrepresentation by omission, and fraudulent misrepresentation are hereby
dismissed for failure to state a claim, and plaintiff’s strict liability claim is deemed
asserted under the KPLA. Only plaintiff’s claims under the KPLA and the KCPA
remain.

IV.

KPLA Claim – Failure to Warn

Plaintiff asserts two bases for liability under the KPLA—a failure to warn and a
design defect. The Court first addresses plaintiff’s failure-to-warn claim.
In her complaint, plaintiff alleges that defendant failed to include an adequate
warning concerning the risk of certain skin disorders in either Cymbalta’s product insert
or the Patient Medication Guide (PMG) for the drug. Defendant first seeks dismissal of
any claim based on a failure to include a warning in the PMG, which was intended for
the patient, not the prescribing physician. Defendant relies on the learned intermediary
doctrine, which has been adopted in Kansas. See Ralston v. Smith & Nephew Richards,
Inc., 275 F.3d 965, 974 (10th Cir. 2001). “Under that rule, the manufacturer’s duty to
warn its customers is satisfied when the prescribing physician is made aware of the risks
and dangers of the product, since the patient cannot obtain the medical product except
through the physician.” Id. (citing Humes v. Clinton, 246 Kan. 590, 600 (1990)).
Defendant argues that because this doctrine allows it to warn only the prescribing
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physicians, plaintiff cannot base her claim on an omission from a document intended for
the patient, and that any analysis of this claim should consider only the product insert.
The learned intermediary doctrine does not relieve defendant of its duty to warn plaintiff
adequately of risks of the product, however; rather, it merely allows defendant to have
satisfied that duty by warning plaintiff’s physician. Defendant could also have satisfied
that duty by warning plaintiff directly. Thus, plaintiff’s allegation that defendant failed
to warn of certain risks in either the product insert or the PMG is entirely appropriate.
Plaintiff’s failure-to-warn claim is not based on any particular document, but rather
alleges that defendant failed to warn plaintiff adequately in a general sense. Thus, there
is no basis to dismiss part of that claim as it pertains to particular documents.
The Court also rejects defendant’s argument that plaintiff has failed to plead
reliance and proximate causation sufficiently. Specifically, defendant argues that
plaintiff has failed to allege specific facts concerning her physician’s reaction to or
reliance on particular warnings from defendant concerning Cymbalta. Plaintiff has
alleged, however, that she and her physician relied on defendant’s warnings; that she
would not have consented to use Cymbalta, and her physician would not have prescribed
it, if defendant had included adequate warnings; and that defendant’s failure to warn
caused her injuries. The Court concludes that these allegations are not so conclusory as
to run afoul of Twombly. Moreover, as plaintiff points out, she is not necessarily
required to prove causation, as an inadequate warning gives rise to a rebuttable
presumption of causation in plaintiff’s favor. See Ralston, 275 F.3d at 977 n.6 (citing
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cases).
Finally, defendant argues that its product insert includes an adequate warning as
a matter of law.2 Defendant relies specifically on the following statement in the “adverse
reactions” section of the product insert: “Serious skin reactions including StevensJohnson Syndrome that have required drug discontinuation and/or hospitalization have
been reported with duloxetine [Cymbalta].” Defendant argues that this statement was
adequate as a matter of law because it warned of the very conditions—SJS and severe
skin disorders—that plaintiff allegedly suffered. Defendant cites to two cases in which
warnings concerning SJS in the “adverse reactions” sections of inserts were deemed
adequate. See Ames v. Apothecon, Inc., 431 F. Supp. 2d 566, 573 (D. Md. 2006); Serna
v. Roche Labs., 684 P.2d 1187, 1188-90 (N.M. Ct. App. 1984).
The Court rejects this argument as well. “Under Kansas law, the standard for
determining whether a warning is adequate is whether it is reasonable under the
circumstances.” Ralston, 275 F.3d at 975 (citations and internal quotations omitted).
Even if a warning mentions the very harm suffered by the plaintiff, the warning must
have been adequate. See Johnson v. American Cyanamid Co., 239 Kan. 279, 288 (1986)

2

Defendant has attached the product insert to its motion and relies on that
document in arguing for dismissal. In ruling on a motion to dismiss, “[i]n addition to the
complaint, the district court may consider documents referred to in the complaint if the
documents are central to the plaintiff’s claim and the parties do not dispute the
documents’ authenticity.” Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir.
2002). The product insert is central to plaintiff’s failure-to-warn claim, and plaintiff has
not disputed the authenticity of the document attached to defendant’s motion;
accordingly, the Court will consider the product insert.
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(because warning warned of the plaintiff’s injury, the question was one not of a failure
to warn, but of the adequacy of the warning). The Court thus considers the product
insert as a whole.
Cymbalta’s product insert did not mention any skin reactions in its “warnings and
precautions” section. In the “adverse reactions” section, with respect to reactions
experienced in clinical trials of Cymbalta, the insert mentioned the following skin-related
conditions: hyperhidrosis (excessive sweating), rash, pruritis (itchy skin), cold sweat,
dermatitis contact (localized inflammation), erythema (redness), increased tendency to
bruise, night sweats, photosensitivity reaction, and ecchymosis (small hemorrhage); that
subsection did not mention SJS or SCAR disorders or any other severe skin condition.
Then, in the “adverse reaction” section’s subsection on “postmarketing spontaneous
reports,” the insert stated as follows:
The following adverse reactions have been identified during
postapproval use of Cymbalta. Because these reactions are reported
voluntarily from a population of uncertain size, it is not always possible
to reliably estimate their frequency or establish a causal relationship to
drug exposure.
Adverse reactions reported since market introduction that were
temporally related to duloxetine therapy and not mentioned elsewhere in
labeling include: anaphylactic reaction [allergic reaction], . . . erythema
multiforme [a type of hypersensitivity skin reaction], . . . rash, . . . .
Serious skin reactions including Stevens-Johnson Syndrome that
have required drug discontinuation and/or hospitalization have been
reported with duloxetine.
The Court cannot conclude that this language adequately warned of a risk of

10

SCAR disorders and SJS as a matter of law. In particular, the disclaimer language at the
beginning of this subsection significantly weakens any warning imparted, as defendant
was effectively stating that it did not know whether or not the listed conditions, including
SJS, could be linked to use of the drug. The presence of that disclaimer easily
distinguishes the present case from the cases cited by defendant. Moreover, the
manufacturer’s knowledge is relevant to the adequacy of a warning, see Wheeler v. John
Deere Co., 935 F.2d 1090, 1100 (10th Cir. 1991) (applying Kansas law); Wooderson v.
Ortho Pharmaceutical Corp., 235 Kan. 387, 400 (1984) (drug manufacturer’s duty to
warn is commensurate with its actual and constructive knowledge), and plaintiff has
alleged that defendant knew or should have known that its product did cause an
increased risk of SJS and SCAR disorders.
The Court’s consideration of this issue is governed by the Tenth Circuit’s decision
in Thom v. Bristol-Myers Squibb Co., 353 F.3d 848 (10th Cir. 2003).3 In Thom, the court
reversed a district court’s conclusion that a warning was reasonable and therefore
adequate as matter of law. See id. at 853-55. The Tenth Circuit first noted that
“[a]lthough the adequacy of warnings concerning drugs is generally a question of fact,
it can become a question of law where the warning is accurate, clear and unambiguous.”

3

In Thom, the failure-to-warn claim was governed by Oklahoma law.
Nevertheless, the case is instructive and provides persuasive authority because the court
applied a standard of reasonableness under the circumstances, see 353 F.3d at 853, and
the court relied almost entirely on cases from other jurisdictions, as if stating rules of law
that would apply in any of the court’s constituent jurisdictions, see id. at 853-55.
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Id. at 853 (citations and internal quotation omitted). In concluding that the warning at
issue there did not meet that standard, the court concluded that certain language noting
a temporal relation but stating that a causal relationship had not been established was
equivocal and thus was not adequate as a matter of law. See id. The court also noted
that adequacy is commensurate with the manufacturer’s knowledge of danger, which is
therefore relevant to the analysis, and that a factual dispute existed concerning the
defendant’s knowledge in that case. See id. at 854-55.
Similarly in the present case, the Court cannot conclude that defendant’s warning
was adequate as a matter of law under the fact-dependent standard of reasonableness,
particularly in light of the equivocal nature of the warning and the allegations of
defendant’s knowledge of the risk. Accordingly, defendant’s motion to dismiss this
claim on this basis is denied.4

V.

KPLA Claim – Design Defect

Defendant seeks dismissal of plaintiff’s claim of a design defect on the basis that
plaintiff has not pleaded that claim with sufficient factual specificity. In a design-defect
case under Kansas law, a plaintiff must show that the defendant’s product was defective
and unreasonably dangerous, and under the applicable “consumer expectation test,” the

4

The Court also rejects defendant’s argument that plaintiff did not allege the
inadequacy of defendant’s warnings with sufficient specificity. Plaintiff’s complaint
includes numerous factual allegations in support of its failure-to-warn claim, and that
claim therefore is not improperly conclusory.
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product must have been dangerous to an extent beyond that contemplated by the ordinary
consumer. See Jenkins v. Amchem Prods., Inc., 256 Kan. 602, 630 (1994). Moreover,
the plaintiff may not simply show that the product causes injury, but must put forth “a
specific claim concerning what aspect of the design was defective.” See id. at 636-37.
Defendant argues that plaintiff has not alleged a specific defect in this case.
This Court ruled in a previous case that, although the plaintiff would be required
at some point, under Jenkins, to identify specifically “what aspect of defendants’
products was defectively designed,” the failure to do so in the complaint did not provide
a basis for dismissal. See Burton v. R.J. Reynolds Tobacco Co., 884 F. Supp. 1515, 1522
(D. Kan. 1995) (Lungstrum, J.); see also Vanderwerf v. SmithKlineBeecham Corp., 414
F. Supp. 2d 1023, 1026 (D. Kan. 2006) (citing Burton in concluding that the plaintiffs
were not required to allege specifically how the products were defective at the pleading
stage). Nevertheless, defendant argues that the Court should reach a different result
under Twombly, which was decided after Burton and Vanderwerf.
The Court rejects this argument. The cases cited by defendant do not actually
support defendant’s statement that “the clear trend in federal district court decisions
since Twombly and Iqbal is to hold that the plausibility standards require plaintiffs
alleging design-defect claims against a pharmaceutical manufacturer to specify the
precise aspect of the design or formulation that plaintiffs contend caused the product at
issue to be defective.” (Emphasis in original.) In fact, those cases are not really directed
at the plausibility requirement; instead, they generally support a rule that under Twombly
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a plaintiff may not merely allege a design defect, but must go beyond such a conclusory
allegation or a formulaic recitation of elements and allege supporting facts. See Tillman
v. Taro Pharmaceutical Indus. Ltd., 2011 WL 3704762, at *4 (N.D. Ill. Aug. 17, 2011)
(formulaic recitation of elements without specific facts to support design defect
allegation was insufficient); Rollins v. Wackenhut Servs., 802 F. Supp. 2d 111, 123-24
(D.D.C. 2011) (plaintiff did not plead sufficient non-conclusory allegations of design
defect; plaintiff did not allege that risks outweighed benefits); Bodley v. Foster Wheeler
Energy Corp., 2011 WL 1576673, at *3 (D.V.I. Apr. 26, 2011) (a mere allegation of
defective design is conclusory); Ivory v. Pfizer Inc., 2009 WL 3230611, at *3 (W.D. La.
Sept. 30, 2009) (pleading was insufficient where the plaintiff made no reference to an
alternative design, which was a required element under the governing law); Frey v.
Novartis Pharmaceuticals Corp., 642 F. Supp. 2d 787, 795 (S.D. Ohio 2009) (formulaic
recitation of elements without facts was insufficient).
In this case, plaintiff has not merely and conclusorily alleged a design defect
without supporting facts. For instance, plaintiff has alleged a propensity of Cymbalta
to cause SCAR disorders; that the benefits of the drug were outweighed by product risks
for plaintiff and other consumers, particularly in comparison with alternative drugs or
therapies; and that an alternative antidepressant drug with a more favorable benefit-risk
profile was feasible. The Court concludes that these allegations are sufficient to state a

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claim under the Twombly standard.5
Accordingly, the Court denies defendant’s motion to dismiss plaintiff’s KPLA
claim based on an allegation of a design defect.6

VI.

KCPA Claim

Plaintiff alleges that defendant committed deceptive and unconscionable acts in
violation of the KCPA, based on plaintiff’s allegation that defendant misrepresented the
safety or concealed life-threatening characteristics of Cymbalta. Defendant argues that
plaintiff’s KCPA claim should be dismissed because plaintiff has failed to plead that
claim with particularity as required by Fed. R. Civ. P. 9(b). See Burton, 884 F. Supp. at
1524 (concluding that Rule 9(b) applies to allegations of deceptive trade practices under
the KCPA). Plaintiff does not dispute that Rule 9(b) applies to this claim. To comply
with the rule, a complaint must “set forth the time, place and contents of the false
representation, the identity of the party making the false statements and the consequences
thereof.” See Tal v. Hogan, 453 F.3d 1244, 1263 (10th Cir. 2006).

5

The Court expresses no opinion at this time concerning whether such allegations
would eventually satisfy Jenkins’s requirement of a claim showing which aspect of the
product’s design is defective.
6

The Court does not consider defendant’s argument that the design was not
defective as a matter of law, which defendant raised for the first time in its reply brief.
See, e.g., U.S. Fire Ins. Co. v. Bunge N. Am., Inc., 2008 WL 3077074, at *9 n.7 (D. Kan.
Aug. 4, 2008) (court will not consider issues raised for first time in reply brief) (citing
Minshall v. McGraw Hill Broadcasting Co., 323 F.3d 1273, 1288 (10th Cir. 2003)).
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Plaintiff notes that she has identified the time frame and the place in which she
was prescribed Cymbalta, and the Court concludes that plaintiff has sufficiently
identified the content that defendant allegedly omitted (i.e., the risks of which defendant
allegedly should have warned). The Court agrees with defendant, however, that
plaintiff’s general references to marketing brochures and other materials, in which
defendant allegedly made misrepresentations or misleading statements, are insufficient
to satisfy Rule 9(b). Plaintiff must identify the particular acts that she alleges provide
a basis for liability under the KCPA, and if she intends to rely on particular statements
in particular documents as deceptive or unconscionable acts, she must identify those
statements and documents with particularity. Accordingly, plaintiff’s KCPA claim is
subject to dismissal.7
Because there is no basis to believe that plaintiff could not cure this pleading
defect, the Court grants plaintiff leave to amend her complaint to state this claim with
the required particularity.8 Plaintiff should file any such amended complaint on or before
June 4, 2012.

7

The Court does not agree with defendant that plaintiff’s allegations of reliance
are insufficient under Rule 9(b). Plaintiff has alleged that she and her physicians relied
on defendant’s statements and omissions concerning Cymbalta, and the Tenth Circuit’s
standard for compliance with Rule 9(b) does not require more.
8

In her complaint, plaintiff alleges that defendant failed to state material facts “and
otherwise committed deceptive and unconscionable acts.” To the extent that plaintiff
intends to rely on allegedly deceptive or unconscionable acts other than
misrepresentations or omissions by defendant, she must identify any such acts with
particularity.
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IT IS THEREFORE ORDERED BY THE COURT THAT defendant’s motion
to dismiss (Doc. # 15) is granted in part and denied in part. The motion is granted
with respect to plaintiff’s claims of negligence, negligence per se, breach of implied
warranty, breach of express warranty, misrepresentation by omission, and fraudulent
misrepresentation, and those claims are hereby dismissed. Plaintiff’s strict liability claim
is deemed asserted under the Kansas Product Liability Act (KPLA). The motion is also
granted with respect to plaintiff’s claim under the Kansas Consumer Protection Act
(KCPA), although plaintiff is granted leave to amend that claim on or before June 4,
2012. The motion is denied with respect to plaintiff’s claim under the KPLA.

IT IS SO ORDERED.

Dated this 23rd day of May, 2012, in Kansas City, Kansas.

s/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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