Darbro et al v. Boehringer Ingelheim Pharmaceuticals, Inc. et al

Filing 34

MEMORANDUM OPINION & ORDER,; DENYING 21 MOTION to Dismiss 20 MOTION to Dismiss filed by defendants.. Signed by Judge Henry R. Wilhoit, Jr on 3/31/17.(SMT)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
ASHLAND
Civil Action No. 16-57-HRW
BONNIE DARBRO
and
JERRY GIBSON,

v.

PLAINTIFFS,

MEMORANDUM OPINION AND ORDER

BOEHRINGER INGELHEIM
PHARMACEUTICALS, INC.,
BOEHRINGER INGELHEIM GMBH & CO.,
BOEHRINGER INGELHEIM INTERNAT'L GMBH,
and
ELI LILLY & COMPANY,

DEFENDANTS.

This matter is before the Defendants' Motions to Dismiss [Docket Nos. 20 and 21). The
motions have been fully briefed by the parties [Docket Nos. 20-1, 28, 29, 30 and 31]. For the
reasons stated herein, the Comi finds that dismissal would not be appropriate at this time.
I.

This case arises out of Plaintiff Bonnie Darbro's alleged development of diabetic
ketoacidosis ("DKA") shmily after she began taking Jardiance. Boehringer Ingelheim
Pharmaceuticals, Inc. (" BIPI") holds the New Drug Application ("NDA") for Jardiance, and
BIPI and Eli Lilly and Company ("Lilly") co-market and distribute the product.
In their Complaint, Plaintiffs state that Plaintiff Bonnie Darbro was prescribed Jardiance
to treat her diabetes by her physician [Complaint, Docket No. 1,

ii 32].

Jardiance (empaglijlozin)

was approved by the FDA in August 2014 as a safe and effective for the treatment of Type 2

diabetes. Id.

iJ 21. Plaintiffs allege that Ms. Darbro began treatment with Jardiance "in or about

October 14, 2014, primarily to treat diabetes." Id.

iJ 32. Approximately 10 days after beginning

treatment with Jardiance, Plaintiffs allege that Ms. Darbro developed and was diagnosed with
DKA "resulting in admission to the intensive care unit." Id.

if 37.

In addition to developing

DKA, Plaintiffs allege that Ms. Darbro experienced "severe and permanent physical and
emotional injuries ... pain and suffering, emotional distress, loss of enjoyment of life, and
economic loss, including significant expenses for medical care and treatment which will continue
in the future" and "other related health complications." Id.

iii! 45, 66.

Based on these allegations, Plaintiffs filed this civil action, seeking "actual
compensatmy, and punitive damages from Defendants and asserting thirteen causes of action:
(Count I) Products Liability- Design Defect (Strict Liability); (Count II) Products LiabilityFailure to Warn (Strict Liability); (Count III) Willful and Wanton Conduct or Gross Negligence;
(Count IV) Negligence; (Count V) Breach of Express Warranty; (Count VI) Breach oflmplied
Warranty; (Count VII) Fraudulent Misrepresentation; (Count VIII) Negligent Misrepresentation;
(Count IX) Negligent Design; (Count X) Fraudulent Concealment; ( Count XI) Fraud; (Count
XII) Violation of the Kentucky Consumer Protection Act ("KCP A"); and (Count XIII) Loss of
Consortium on behalf of Plaintiff Jerry Gibson. Plaintiffs assert each of these thirteen claims
against all named Defendants based on their alleged role in the design, manufacture, marketing,
advertisement, licensing, distribution, and sale of Jardiance. Id.

ifil 1, 5.

Defendants seek dismissal of all claims asserted herein, arguing that the Complaint pleads
insufficient facts and recites conclusory allegations, thereby failing to meet threshold federal
pleadings requirements, and it asserts several claims not recognized under Kentucky law.

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Defendant Lilly also argues that all claims asserted against are preempted and, as such, fails to
state a claim upon which relief can be granted.

II.
The purpose of a motion to dismiss is to allow a defendant to test whether, as a matter of
law, the plaintiff is entitled to legal relief. See, Mayer v. Mylod, 988 F.2d 635, 638 (6 1h Cir.
1993). In scrntinizing a complaint under Rule 12(b)(6), the Court is required to "accept all wellpleaded factual allegations of the complaint as trne and constrne the complaint in the light most
favorable to the plaintiff." Dubay v. Wells, 506 F.3d 422, 426 (6th Cir.2007). A complaint need
not contain "detailed factual allegations". However, it must allege more than "a formulaic
recitation of the elements ofa cause of action." Bell At/. Corp. v. Twombly, 550 U.S. 544, 555,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A complaint will withstand a motion to dismiss if it
"contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face." Ashcrojl v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). A
complaint has "facial plausibility" if the plaintiff pleads factual content that allows the comi to
draw the reasonable inference that the defendant is liable for the misconduct alleged." Hensley
Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir.2009) (quoting Iqbal, 129 S.Ct. at 1949).

III.
Defendants' arguments urging dismissal elevate form over substance. Defendants implore
this Court to engage in a word by word dissection of the Complaint, suggesting, in effect, that the
trees should obscure the forest. The Court disagrees. At the very least, the sequence of events
alleged by Plaintiffs, to-wit, that Ms. Darbro was prescribed a medication designed and
distributed by the Defendants and a mere 10 days after after she began taking the drug, she

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developed a serious illness, requiring hospitalization, present a plausible scenario of negligence
and perhaps other wrongdoing.

Without the benefit of discovery, indeed the first interrogat01y

has yet to be served, the first deposition yet to be noticed, there is not much more to discern.
Such is the point of discove1y, is it not? Defendants' argument that Plaintiffs' case is lost is
woefully premature.
The Court finds that Plaintiffs have plead sufficient facts upon which one could draw a
reasonable inference that the Defendants are liable for the misconduct alleged, thereby passing

Iqbal muster.
This is not to say that Plaintiffs will ultimately prevail. However, if Plaintiffs' claims are
to fail before a trial, they will fail upon summary judgment, not at this early juncture of the case.
IV.

Accordingly, IT IS HEREBY ORDERED that Defendants' Motions to Dismiss [Docket
Nos. 20 and 21] be OVERRULED.
This

3/ 5t- of March, 2017.
day
Slgn11d By:

. t

lhlllCY B, .wJ/holLJr.
Unlt11d 811111111 Dl11trl11t Judge

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