Hardwick v. Bayer Healthcare Pharmaceuticals Inc.

Filing 25

MEMORANDUM OPINION AND ORDER denying 5 Motion to Dismiss for Failure to State a Claim. Signed by Senior Judge John G. Heyburn, II on 8/12/2014. cc: Counsel(JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISIVILLE
CIVIL ACTION NO. 14-CV-0082-H
LAUREN HARDWICK

PLAINTIFF

vs.
BAYER HEALTCARE
PHARMACEUTICALS INC.

DEFENDANT

MEMORANDUM OPINION AND ORDER
Before the Court is the motion of Defendant Bayer Healthcare Pharmaceuticals, Inc.
(“Bayer”) to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons that follow,
the Court will deny Defendant’s motion without prejudice.
I.
Plaintiff, Lauren Hardwick, is a 42-year-old woman seeking to recover damages for
injuries she alleges were caused by Mirena, a contraceptive device manufactured by Defendant.
Mirena is a t-shaped polyethylene frame inserted into the uterus by a healthcare practitioner
during an office visit. The device contains a steroid reservoir that releases levonorgestrel, a
synthetic progestogen, directly into the uterus for birth control.
According to Plaintiff, the levonorgestrel released by Mirena “causes or contributes” to
the development of a condition called “pseudotumor cerebri,” also known as “idiopathic
intracranial hypertension” (hereinafter, “PTC/IIH”). Patients suffering from PTC/IIH “typically
develop symptoms of severe migraines or migraine-like headaches with blurred vision, diplopia
(double vision), temporary blindness, blind spots, or other visual deficiencies.” PTC/IIH also
may cause “whooshing” or “ringing” in the ear, clinically called tinnitus. PTC/IIH is reversible
in some cases, but may be irreversible in others.
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Plaintiff claims that she had the Mirena device “inserted . . . by a healthcare practitioner”
and that she was subsequently diagnosed with PTC/IIH. Plaintiff further alleges that Mirena
caused her PTC/IIH. She brings this action seeking recovery for her injuries under several causes
of action including negligence, failure to warn, defective design, manufacturing defect, breach of
implied warranty, breach of express warranty, negligent misrepresentation, fraudulent
misrepresentation, fraud by suppression and concealment, and punitive damages.
Bayer now moves to dismiss Plaintiff’s complaint under Fed. R. Civ. P. 12(b)(6) for
failure to state a claim.
II.
To survive a motion to dismiss, a “complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, (2007)). This
standard “requires more than labels and conclusions, and a formulaic recitation of the elements
of a cause of action.” Twombly, 550 U.S. at 555. Instead, the plaintiff must “plead[] factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678. In determining whether the plaintiff has complied
with this standard, the court must view the allegations in the complaint in the light most
favorable to the plaintiff. Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir.
2009). This means the court will treat all well-pleaded facts as true. Id. Nevertheless,
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, [will] not suffice.” Iqbal, 556 U.S. at 678.

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III.
Here, Plaintiff’s complaint runs for 203 paragraphs across thirty-four pages. Despite its
length, however, the plaintiff-specific facts alleged in the complaint amount to no more than the
following: Plaintiff is a 42-year-old woman who had a Mirena device inserted by an unspecified
doctor, on an unspecified date, in an unspecified location; Plaintiff subsequently experienced
headaches and blurred vision for an unknown period of time; Plaintiff was diagnosed with
PTC/IIH by an unspecified doctor, on an unspecified date, in an unspecified location. The
absence of such basic and readily accessible information as when, where, and by whom the
allegedly defective Mirena was inserted renders the complaint facially implausible and precludes
the Court from inferring that Defendant is liable for Plaintiff’s alleged injuries. Consequently,
Plaintiff has failed to state a claim upon which relief may be granted.
Rather than dismissing the complaint outright, however, the Court will grant Plaintiff
leave to amend pursuant to Fed. R. Civ. P. 15(a)(2). This decision is consistent with Sixth Circuit
precedent holding that “[i]f it is at all possible that the party against whom the dismissal is
directed can correct the defect in the pleading or state a claim for relief, the court should dismiss
with leave to amend.” Brown v. Matauszak, 415 F. App'x 608, 614 (6th Cir. 2011). The Sixth
Circuit has authorized such an order even where, as here, the plaintiff does not file a motion to
amend. Id.
In highlighting the complaint’s basic factual deficiency, the Court notes that it does not
address whether Plaintiff’s specific causes of actions suffer from additional shortcomings.
Indeed, the Sixth Circuit has stated that plaintiffs are “not entitled to an advisory opinion from
the Court informing them of the deficiencies of the complaint and then an opportunity to cure
those deficiencies.” Begala v. PNC Bank, 214 F.3d 776, 784 (6th Cir. 2000).

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Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that on or before September 7, 2014, Plaintiff shall file an
amended complaint.
IT IS FURTHER ORDERED that Defendant’s motion to dismiss for failure to state a
claim is DISMISSED WITHOUT PREJUDICE.
This _____ day of August, 2014.

August 12, 2014

cc:

Counsel of Record

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