Jacobsen v. Wyeth LLC et al
Filing
139
ORDER & REASONS re dfts 103 Motion to Dismiss Case: for the reasons stated, IT IS HEREBY ORDERED that Defendants' 103 Motion to Dismiss is GRANTED and that the above-captioned case is DISMISSED WITH PREJUDICE. Signed by Judge Nannette Jolivette Brown on 8/20/2012. (rll, ) Modified on 8/20/2012 to edit doc type (rll, ).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MILDRED JACOBSEN
CIVIL ACTION
VERSUS
NO. 10-0823
WYETH, LLC, et al.
SECTION: “G”(4)
ORDER AND REASONS
Before the Court is Defendants Actavis, Inc.; Actavis Elizabeth LLC; PLIVA, Inc.; and
Northstar Rx LLC’s (collectively, “Defendants”) Motion to Dismiss,1 wherein Defendants seek to
dismiss the pending action for failure to state a claim on the basis that Plaintiff’s claims brought
under the Louisiana Product Liability Act2 (“LPLA”) are preempted by federal law and that Plaintiff
fails to adequately plead a design defect claim.3 Having considered the motion, the response, the
supplemental responses, the reply, the notices of supplemental authority, the record, and the
applicable law, for the following reasons, the Court will grant the Motion to Dismiss and will
dismiss Plaintiff’s complaint with prejudice,4 finding Plaintiff’s claims to be preempted and, further,
that Plaintiff has not adequately pled a design defect claim.
1
Rec. Doc. 103.
2
La. R.S. § 9:2800.51, et seq.
3
The motion seeks to dismiss Plaintiff’s claims only on the basis of preemption or the alleged failure of
Plaintiff to adequately plead a design defect claim, but the Court notes that Defendants’ reply in further support of the
Motion to Dismiss argues that Plaintiff raises additional theories of liability not originally raised in her complaints. As
such, Defendants’ reply argues that, to the extent that the Court considers these claims, the claims should be dismissed
for failure to state a claim upon which relief may be granted. However, as explained later, to the extent that Plaintiff has
not stated such claims in her complaints, the Court will not consider them on their merits here.
4
Again, the Court notes that it here considers only the merits of those claims that were alleged by Plaintiff in
her complaints, rather than those claims which Plaintiff attempts to assert by argument in her opposition to the Motion
to Dismiss.
I. Background
A. Procedural and Factual Background
On March 9, 2010, Plaintiff Mildred Jacobsen filed her complaint in this matter,5 bringing
causes of action under the LPLA against various drug manufacturers,6 including Defendants. On
March 26, 2010, Plaintiff filed her First Amended and Restated Complaint,7 and on May 12, 2010,
Plaintiff filed her Second Amended and Restated Complaint.8 The case arises from injuries allegedly
sustained by Plaintiff as the result of taking the pharmaceutical drug metoclopramide.9 Specifically,
Plaintiff alleges that she suffers from tardive dyskinesia and/or involuntary movement disorder as
a result of ingesting metoclopramide.10 Metoclopramide is a generic form of a brand-name drug,
Reglan, which was originally designed and manufactured by a third party. Defendants are
manufacturers of the generic drug, and Plaintiff alleges that she was prescribed and later ingested
the generic versions of the drug manufactured by these manufacturers over various periods of time.11
Plaintiff alleges that Defendants are liable (1) for their alleged failure to safely monitor the drug; (2)
because the drug was unreasonably dangerous in design; (3) because the drug was unreasonably
5
Rec. Doc. 1.
6
A number of these manufacturers have since been terminated from this suit. The pending motion has been
brought by all remaining defendants.
7
Rec. Doc. 19.
8
Rec. Doc. 36.
9
Id. at ¶ 17 (“Plaintiff’s use of Reglan/metoclopramide, as prescribed, resulted in exposure to the drugs which
caused Plaintiff to suffer serious, permanent and disabling injuries, including but not limited to, injuries of or associated
with the central nervous and extrapyramidal motor systems.”).
10
Id. at ¶ 63.
11
Id. at ¶¶ 2-4.
2
dangerous for failure to conform to an express warranty; and (4) because Defendants failed to
provide an adequate warning for the drug.12
This case was originally assigned to Judge Lance M. Africk, Section “I” of the Eastern
District of Louisiana. However, after the filing of this case, the United States Supreme Court granted
certiorari in two cases involving the question of whether failure-to-warn claims against generic drug
manufacturers are preempted by federal law.13 Accordingly, on December 17, 2010, Judge Africk
granted an unopposed motion to stay these proceedings and administratively terminated this action.14
Following the Supreme Court’s decision in the consolidated case of PLIVA, Inc. v. Mensing,15 the
above-captioned matter was re-opened on July 25, 2011.16 The parties then filed a joint motion to
reinstate a limited stay for the purposes of briefing dismissal based on Mensing.17 However, Judge
Africk denied the motion18 and, at the parties’ request, conducted a status conference to discuss the
implications of Mensing.19 According to the Minute Entry for that status conference, “Plaintiff’s
counsel advised the Court that plaintiff’s allegations include failure to warn claims as well as
12
See, e.g., id. at ¶¶ 45-49, 52(A)-(E).
13
See Demahy v. Actavis, Inc., 593 F.3d 428 (5th Cir. 2010), cert. granted No. 09-1501, and Mensing v. Wyeth,
Inc., 588 F.3d 603 (8th Cir. 2009), cert. granted Nos. 09-993 and 09-1039.
14
Rec. Doc. 87.
15
564 U.S. __, 131 S.Ct. 2567 (2011) (expressly barring recovery from generic manufacturers on failure to
warn claims brought under state law as preempted by federal law that sets forth a generic manufacturer’s duty as one of
sameness).
16
Rec. Doc. 89.
17
Rec. Doc. 92.
18
Rec. Doc. 93.
19
The status conference was held on September 16, 2011. See Rec. Doc. 97.
3
defective design claims against a generic drug manufacturer. Counsel for defendants advised the
Court that it would file a motion to dismiss with respect to the failure to warn claims . . . .”20
On September 23, 2011, Defendants filed their motion, pending here, seeking to dismiss the
case in its entirety “because the Supreme Court’s decision is outcome determinative with respect to
Generic Defendants’ liability under both theories [i.e, failure to warn and defective design].”21
Alternatively, Defendants moved for judgment on the pleadings.22 While the motion to dismiss was
pending, the case was transferred to this Section, Section “G” of the Eastern District of Louisiana.23
B. Parties’ Arguments
1. The Pending Motion
On September 23, 2011, Defendants filed the pending Motion to Dismiss,24 seeking to
dismiss Plaintiff’s action under Federal Rule of Civil Procedure 12(b)(6) or, alternatively, under
Federal Rule of Civil Procedure 12(c), on the grounds that Plaintiff’s claims are preempted by
federal law under Supreme Court precedent in Mensing. Specifically, Defendants argue that
Mensing held that a failure to warn claim against a generic drug manufacturer was preempted by
federal law and that Plaintiff’s claims are precisely the type of claims that were held preempted in
20
Rec. Doc. 102.
21
Rec. Doc. 103.
22
Id. at p. 1.
23
Rec. Doc. 108.
24
Rec. Doc. 103.
4
Mensing.25 Additionally, Defendants argue that Plaintiff has not adequately pled a design defect
claim26 or, alternatively, that the same principles that applied to preempt a failure to warn claim also
preempt any design defect claim.27
2. Plaintiff’s Response
Plaintiff filed her response in opposition on October 4, 2011.28 Therein, Plaintiff readily
admits that “Mensing does affect the theories of liability asserted against Defendants in the present
case.”29 However, Plaintiff argues that Mensing “is by no means dispositive of all of the claims
asserted by Plaintiff.”30 Plaintiff argues that “[a]s Plaintiff has alleged theories of liability which
would not impose a requirement on generic manufacturers to provide warnings different or in
addition to the branded manufacturer, Mensing is distinguishable with regard to its finding of
25
See, e.g., Rec. Doc. 103-1 at p. 1 (“Plaintiff’s claims are indistinguishable from those the Supreme Court
found preempted in Mensing and those that have been dismissed by federal courts post-Mensing.”).
26
Id. at p. 10 (“But Plaintiff’s design defect claim is not well pled; she does no more than improperly provide
a ‘formulaic recitation of the elements of [the] cause of action,’ and alleges no facts to support her claim.”)
27
Id. (“. . . the same principles of conflict preemption applied in Mensing bar design defect claims against
generic drug manufacturers as well. Simply, the 21 U.S.C. § 355(j) ‘sameness’ requirement applies with equal force to
both the labeling and design of a generic drug.”).
28
Rec. Doc. 105.
29
Id. at p. 3.
30
Id. In support of the proposition that preemption does not automatically apply to all causes of action, Plaintiff
relies on three United States Supreme Court cases: Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992); Altria Group,
Inc. v. Good, 555 U.S. 70 (2008); and Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005). Plaintiff also relies on
Louisiana state and federal cases for this proposition. See Rec. Doc. 105 at pp. 18-20 (citations omitted). However, as
Defendants point out, these cases involved express preemption, rather than conflict preemption. See, e.g., Rec. Doc. 114
at p. 9 (citation omitted). Nonetheless, despite Plaintiff’s citation to cases that are not entirely on point, this Court will
consider whether each asserted claim is preempted under conflict or impossibility preemption because the Supreme Court
specifically identified this type as the applicable type of preemption in Mensing. See Mensing, 131 S.Ct. at 2577-78.
5
preemption.”31 Specifically, Plaintiff argues that Defendants remain liable (1) for their failure to
monitor the drug’s safety, (2) because the drug was unreasonably dangerous in design; (3) because
the drug failed to conform to an express warranty; and (4) because Defendants failed to provide an
adequate warning.
a. Failure to Monitor Drug Safety
First, Plaintiff contends that Defendants failed to safely monitor the drug once it entered the
marketplace, that Defendants were required to take action under federal law if they had concerns
about the safety of their products, and that Defendants took no such action.32 Specifically, Plaintiff
argues that “generic manufacturers have a duty to keep abreast of information regarding their drug’s
effect on consumers in the marketplace, and that they must take action (notifying the [Food and Drug
Administration (“FDA”)] and/or brand-name manufacturer) when there is evidence that [their] drug
may be harming people.”33 Plaintiff contends that “Mensing says absolutely nothing about a
manufacturer’s duty to provide a warning (i.e. communicate information appearing in FDA-approved
labeling to physicians or consumers)” or about a manufacturer’s duty “to discover and report the
risks associated with its product.”34
31
Rec. Doc. 105 at pp. 1-2.
32
Id. at p. 2.
33
Id. at p. 5.
34
Id. at p. 7.
6
b. Design Defect
Additionally, in Plaintiff’s response, Plaintiff alleges that metoclopramide was unreasonably
dangerous in design and that there existed available alternative designs that would have reduced the
risk of harm associated with the use of metoclopramide, such as “unit of use” packaging, which
limits the amount of a drug to be dispensed to a particular patient and which provides warning
information directly to the consumer.35 According to Plaintiff, “[s]uch an alternative design could
undoubtedly have reduced the risks posed by metoclopramide to Plaintiff.”36
c. Failure to Conform to Express Warranty
Plaintiff next argues that the package insert provided by Defendants contained false
statements regarding the risk of side effects posed by metoclopramide and that this induced
Plaintiff’s physician to prescribe the drug, thus failing to conform to an express warranty.37
d. Failure to Provide Adequate Warning
Finally, Plaintiff argues that Mensing only preempted claims regarding the inadequacy of
drug labeling as it applies to the label’s content38 and that Defendants failed to provide any additional
warning information to Plaintiff or her physicians.39 According to Plaintiff, “if the generic [drug
35
Id. at pp. 21-22.
36
Id. at p. 22.
37
Id. at p. 24.
38
Id. p. 2.
39
Id.
7
manufacturers] could have complied with any of [their] duties under state law by taking actions other
than changing the content of [the drug’s] label (such as refraining from putting its metoclopramide
on the market, which neither federal nor state law required it to do), a claim based on such law would
not be preempted.”40
Specifically, Plaintiff argues that the defendant manufacturers could have minimized risk by
such methods as sending “Dear Doctor” letters to healthcare practitioners, using specialized
packaging to enhance safe use of the drug products, or providing other training and notification
programs.41 According to Plaintiff, such tools “are available for use by all manufacturers, branded
and generic alike.”42 Further, Plaintiff contends that Mensing did not preempt “any claim where the
manufacturer could have satisfied its duty under state law by approaching the FDA with information
supporting a label change for metoclopramide. Instead, it addresses only those claims involving a
generic manufacturer’s duty to change the content of the drug’s labeling.”43
Additionally, by Plaintiff’s response in opposition, Plaintiff contends that defendant PLIVA,
Inc. (“PLIVA”) never updated its warning labels to include prohibitions on long-term use of
metoclopramide even after changes were made to the label for metoclopramide in 2004.44 In support
of this contention, Plaintiff attaches a letter from counsel for PLIVA, which appears to acknowledge
that PLIVA failed to update its warning label for metoclopramide after a 2004 change.45 Therefore,
40
Id. at p. 9.
41
Id. at pp. 16-17.
42
Id. at p. 17.
43
Id.
44
Rec. Doc. 105 at p. 2.
45
Id., Exhibit A.
8
Plaintiff alleges that PLIVA did not update its warning label during the majority of the time in which
Plaintiff was taking the drug.46 Plaintiff also filed a supplemental memorandum in opposition on
October 13, 2011,47 wherein Plaintiff further addressed this issue. There, Plaintiff cites Fisher v.
Pelstring,48 a District of South Carolina case in which Mensing was held not to be dispositive
regarding a failure to warn claim based on the failure of the defendant, PLIVA, to alter a warning
label following the FDA’s approval of an additional warning.49 In that case, the court relied on a
letter from PLIVA’s national counsel to the United States Supreme Court,50 the same letter cited by
Plaintiff here, in which PLIVA’s counsel informed the Supreme Court that 2004 revisions to the
drug’s label “were not included in certain post-2004 PLIVA metoclopramide package inserts.”51
Plaintiff argues that Mensing does not bar Plaintiff’s claims as they relate to inadequate notice of
information already appearing in FDA-approved labeling and that PLIVA failed to update its label
during the time Plaintiff was taking metoclopramide, thus violating its duties under the LPLA.
3. Defendants’ Reply
On October 27, 2012, Defendants filed a reply memorandum in support of their Motion to
Dismiss.52 Therein, Defendants argue that Plaintiff’s response advances new theories of liability not
46
Rec. Doc. 105 at p. 18.
47
Rec. Doc. 110.
48
817 F.Supp.2d 791 (D.S.C. 2011).
49
See id. at 805.
50
Id. at 805 n.4.
51
See Rec. Doc. 105-1.
52
Rec. Doc. 114.
9
included within her original complaint and/or not recognized under the LPLA.53 Defendants argue
that these claims must fail because they were not properly pled and, furthermore, that because the
LPLA provides the exclusive remedy under state law for product liability claims, Plaintiff’s “novel”
theories not recognized under the LPLA must fail as a matter of law.54 Additionally, Defendants
assert that many of Plaintiff’s claims are simply re-styled inadequate warning claims, such that they
are nonetheless preempted under Mensing.55
Specifically, Defendants first argue that Plaintiff’s failure to monitor drug safety claims must
fail because, even assuming such a duty exists, the duty would exist only under federal law and “only
the federal government may bring an action to enforce the provisions of the Food, Drug, and
Cosmetic Act (“FDCA”).”56 Additionally, Defendants argue that Mensing specifically held as
preempted claims based on the generic drug manufacturer’s failure to “take steps” and that
Mensing’s analysis would also govern alleged failures to conduct post-marketing activities.57
Concerning Plaintiff’s arguments that Defendants are liable for a design defect, Defendants
contend that “[g]eneric drug manufacturers are no more at liberty to use a different design than they
are to use a different warning.”58 Thus, Defendants conclude that “[d]esign defect claims are,
53
Id. at p. 1.
54
Id. at p. 2.
55
Id. (citation omitted).
56
Id. at p. 3 (citing 21 U.S.C. § 337(a); Buckman Co. v. Plaintiff’s Legal Comm., 531 U.S. 341, 349 n.4
57
Id. at p. 3-4.
58
Id. at p. 8.
(2001)).
10
therefore, preempted to the same extent as failure-to-warn claims.”59 Additionally, Defendants
contend that Plaintiff has not adequately pled a design defect claim because the necessary element
of an alternative design was only raised in Plaintiff’s opposition to the motion, rather than pled in
Plaintiff’s complaint, and further that the alleged alternative design was not an alternative design but
instead alternative packaging.60
Next, Defendants contend that Plaintiff’s argument that Defendants are liable for failure to
conform to an express warranty fails for two reasons. First, Defendants note that Plaintiff “fails to
identify any express representations made to her regarding metoclopramide other than those
contained in the product’s labeling,” which makes Plaintiff’s express warranty claim nothing more
than a failure to warn claim that is preempted under Mensing.61 Additionally, Defendants argue that
this claim fails factually because “Plaintiff argued in her response that Generic Defendants ‘never
provided Plaintiff or her physicians with ANY warning or other information with regard to
metoclopramide.’”62 Thus, argue Defendants, Defendants could not have made any express
warranties if they provided no information.63
Finally, Defendants argue that Plaintiff’s failure to warn claims are preempted. Specifically,
Defendants assert that Defendants’ failure to use other communication methods to warn potential
patients, such as Dear Doctor letters, cannot result in liability because Mensing has found such
59
Id.
60
Id. at p. 8 and n.4.
61
Id. at p. 7.
62
Id. at p. 7 (citing Rec. Doc. 105 at p. 2).
63
Id.
11
claims preempted.64 Regarding Plaintiff’s claims that Defendants are liable for a failure to warn
during the time period in which the brand-name drug company had made a label change but the
generic companies had failed to match the change, Defendants first note that this argument is absent
from Plaintiff’s complaint.65 Further, Defendants allege that this is a “basic failure-to-warn claim”
and that it is another impermissible attempt to enforce provisions of the FDCA.66
II. Standard of Review
The Federal Rules of Civil Procedure provide under Rule 12(b)(6) that an action may be
dismissed “for failure to state a claim upon which relief can be granted.” Likewise, under Federal
Rule of Civil Procedure 12(c), “[a]fter the pleadings are closed—but early enough not to delay
trial—a party may move for judgment on the pleadings.” Both a motion to dismiss and a motion for
judgment on the pleadings are governed by the same standard.67 Accordingly, to survive such a
motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for
relief that is plausible on its face.’”68 “Factual allegations must be enough to raise a right to relief
above the speculative level,”69 and a claim is facially plausible when the plaintiff has pled facts that
allow the court to “draw a reasonable inference that the defendant is liable for the misconduct
64
Id. at pp. 5-6.
65
Id. at p. 4.
66
Id.
67
Jebaco, Inc. v. Harrah’s Operating Co., 587 F.3d 314, 318 (5th Cir. 2009).
68
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2008)).
69
Twombly, 550 U.S. at 556.
12
alleged.”70
On a motion to dismiss or a motion for judgment on the pleadings, asserted claims are
liberally construed in favor of the claimant, and all facts pleaded are taken as true.71 However,
although required to accept all “well-pleaded facts” as true, the court is not required to accept legal
conclusions as true.72 “While legal conclusions can provide the framework of a complaint, they must
be supported by factual allegations.”73 Similarly, “[t]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements” will not suffice.74 The complaint need not
contain detailed factual allegations, but it must offer more than mere labels, legal conclusions, or
formulaic recitations of the elements of a cause of action.75 That is, the complaint must offer more
than an “unadorned, the defendant-unlawfully-harmed-me accusation.”76
From the face of the complaint, there must be enough factual matter to raise a reasonable
expectation that discovery will reveal evidence as to each element of the asserted claims.77 If factual
allegations are insufficient to raise a right to relief above the speculative level, or if it is apparent
70
Id. at 570.
71
Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); see
also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322-23 (2007).
72
Iqbal, 556 U.S. 662, 677-78.
73
Id. at 679.
74
Id. at 678.
75
Id.
76
Id.
77
Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009).
13
from the face of the complaint that there is an “insuperable” bar to relief, the claim must be
dismissed or judgment on the pleadings granted.78
III. Law and Analysis
A. Overview of the Louisiana Products Liability Act
Under Louisiana law, the LPLA establishes the exclusive remedy for injuries arising from
product defects79 and sets forth the only four theories of recovery under which a plaintiff may
recover.80 To establish liability under any of these theories, a plaintiff must prove: (1) that the
defendant is a “manufacturer” of the product, as that term is defined under the statute; (2) that the
plaintiff’s damages were proximately caused by a characteristic of the product; (3) that the damagecausing characteristic made the product “unreasonably dangerous”; and (4) that the plaintiff’s
damages arose from a reasonably anticipated use of the product.81 A plaintiff can establish that a
product is unreasonably dangerous under any of four theories: (1) a defect in construction or
composition; (2) a design defect; (3) a failure to provide an adequate warning; or (4) a failure to
comply with an express warranty.82
78
Moore v. Metro. Human Serv. Dep’t, No. 09-6470, 2010 W L 1462224, at * 2 (E.D. La. Apr. 8, 2010)
(Vance, C.J.) (citing Jones v. Bock, 549 U.S. 199, 215 (2007); Carbe v. Lappin, 492 F.3d 325, 328 & n. 9 (5th Cir.
2007)).
79
La. R.S. § 9:2800.52.
80
La. R.S. § 9:2800.54.
81
Stahl v. Novartis Pharms. Corp., 283 F.3d 254, 260-61 (5th Cir. 2002).
82
La. R.S. § 9:2800.54; see also Stahl, 283 F.3d at 260-61.
14
1. Construction or Composition Defect
To establish a construction or composition defect claim, a plaintiff must establish that, at the
time the product left the manufacturer’s control, the product “deviated in a material way from the
manufacturer’s specifications or performance standards for the product or from otherwise identical
products manufactured by the same manufacturer.”83 This LPLA provision provides a cause of
action for a product that is defective because of a mistake in the manufacturing process.84
2. Design Defect Claim
To establish a design defect claim, a plaintiff must establish that, at the time the product left
the manufacturer’s control, “[t]here existed an alternative design for the product that was capable
of preventing the claimant’s damage” and that the danger of the damage outweighed the burden on
the manufacturer of adopting the alternative design.85 An adequate warning about a product is
considered in evaluating the likelihood of damage when the manufacturer has used reasonable care
to provide an adequate warning to users of the product.
3. Failure to Provide Adequate Warning
Failure to provide adequate warning labels may result in liability under the LPLA where a
plaintiff can establish (1) that “the product possessed a characteristic that may cause damage” and
(2) that “the manufacturer failed to use reasonable care to provide an adequate warning of such
83
La. R.S. § 9:2800.55. See also Stahl, 283 F.3d at 263.
84
Stahl, 283 F.3d at 263 (citing La. R.S. § 9:2800.55).
85
La. R.S. § 9:2800.56.
15
characteristic and its danger to users and handlers of the product.”86 To meet the first prong of this
test, the Fifth Circuit has provided that a plaintiff must establish evidence about the “cause,
frequency, severity, or consequences” of the dangerous characteristic in question.87 To satisfy the
second prong of this test, a plaintiff must prove the language of the warning was inadequate to
reasonably inform the recipient about the nature of the danger involved.88 A plaintiff is not required
to prove a design defect in order to establish a failure to warn claim; even if a product is not
defective in design or construction, the manufacturer “may still have a duty to warn consumers about
any characteristic of the product that unreasonably may cause damage.”89 Further, a manufacturer’s
duty does not necessarily end when the product leaves the manufacturer’s control.90
4. Failure to Conform to Express Warranty
An express warranty exists where the manufacturer of a good voluntarily undertakes and
extends a guarantee to customers.91 Under the LPLA, an express warranty is defined as:
a representation of alleged fact or promise about a product or its nature, material or
workmanship that represents, affirms or promises that the product or its nature, material
or workmanship possesses specified characteristics or qualities or will meet a specified
86
La. R.S. § 9:2800.57(A).
87
See Krummel v. Bombardier Corp., 206 F.3d 548, 552 (5th Cir. 2010).
88
Stahl, 283 F.3d at 267.
89
Grenier v. Med Eng’g Corp., 243 F.3d 200, 205 (5th Cir. 2001).
90
La. R.S. § 9:2800.57(C) (“A manufacturer of a product who, after the product has left his control, acquires
knowledge of a characteristic of the product that may cause damage and the danger of such characteristic, or who would
have acquired such knowledge had he acted as a reasonably prudent manufacturer, is liable for damage caused by his
subsequent failure to use reasonable care to provide an adequate warning of such characteristic and its danger to users
and handlers of the product.”).
91
Fields v. Walpole Tire Serv., L.L.C., 37 So.3d 549, 557 (La. App. 2 Cir. 2010).
16
level or performance. “Express warranty” does not mean a general opinion about or
general praise of a product . . . .92
A warranty is not a warning, nor is it a mandatory packaging or labeling condition that constitutes
a state-imposed requirement.93 Under the LPLA, a manufacturer may be liable if a product contains
an express warranty that has “induced the claimant or another person or entity to use the product and
the claimant’s damage was proximately caused because the express warranty was untrue.”94
B. Preemption
Article VI of the United States Constitution provides, “This Constitution, and the Laws of
the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the
Land.”95 Therefore, where federal and state law directly conflict, the state law must “give way.”96
When it is “impossible for a private party to comply with both state and federal requirements,” such
a conflict exists and the state law is preempted by the federal.97 Therefore, “[w]hen the ‘ordinary
meaning’ of federal law blocks a private party from independently accomplishing what state law
requires, that party has established pre-emption.”98 However, the burden to establish the affirmative
92
La. R.S. § 9:2800.53(6).
93
Fields, 37 So.3d at 557 (citation omitted).
94
La. R.S. § 9:2800.58.
95
U.S. Const., Art. VI, cl. 2.
96
Mensing, 131 S.Ct. at 2577 (citing Wyeth v. Levine, 555 U.S. 555, 583 (2009) (Thomas, J., concurring in
judgment); Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000) (“state law is naturally preempted to the
extent of any conflict with a federal statute”)).
97
Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995).
98
Mensing, 131 S.Ct. at 2580.
17
defense of impossibility preemption rests on the party seeking to establish it.99 All causes of action
are not preempted by federal law simply because particular claims are preempted, and a court must
instead scrutinize each claim individually.100
In Mensing,101 the United States Supreme Court was confronted with the question of whether
a generic drug manufacturer’s alleged failure to provide an adequate warning label in accordance
with state law directly conflicted with federal drug regulations applicable to generic drug
manufacturers, such that federal law would preempt claims brought against generic drug
manufacturers for violations of applicable state laws.102 A majority of the Court held that federal law
did preempt such claims.103 The case involved two separate actions that were consolidated before
the Supreme Court, each of which brought claims under state tort law against a generic drug
manufacturer for failure to provide adequate warning labels104; one of the plaintiffs, Julie Demahy,
brought her claims under the LPLA.105 In the consolidated action, the defendant manufacturers
argued that federal statutes and FDA regulations preempted the state tort claims because the statutes
and regulations required their labels to provide the same safety and efficacy labeling as the brandname counterpart drugs.106 Therefore, argued the defendant manufacturers, it was impossible for
99
See Wyeth v. Levine, 555 U.S. 555, 573 (2009).
100
See, e.g., Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992).
101
131 S.Ct. 2567.
102
Id. at 2572.
103
Id.
104
Id. at 2573.
105
Id.
106
Id.
18
them simultaneously to comply with federal law and also to satisfy their state tort duties, which
would require the generic manufacturers to use a different label than that currently used by their
brand-name counterparts.107
The Court began by outlining the parameters of federal drug law, noting that a generic drug
gains FDA approval by demonstrating that it is the same as an already-approved brand name
version108 and concluding that “brand-name and generic drug manufacturers have different federal
drug labeling duties.”109 Specifically, the Court concluded that “generic drug manufacturers have
an ongoing federal duty of ‘sameness.’”110 In response, the plaintiffs each presented several
arguments that their state law claims were not preempted because, despite this duty of sameness,
there existed actions that the generic drug manufacturers could have taken but did not.111
Accordingly, argued the plaintiffs, there existed no impossibility such that their claims were
preempted.
First, the plaintiffs each argued that there existed an FDA process – the “changes-beingeffected” (“CBE”) process – that allowed generic drug manufacturers to change their labels when
necessary.112 However, the Court noted that the FDA denied that generic drug manufacturers could
unilaterally effect label change because a generic drug manufacturer would only be permitted to
107
Id.
108
Id. at 2574-75 (stating that generic drugs “gain FDA approval simply by showing equivalence to a reference
listed drug that has already been approved by the FDA”).
109
Id. at 2574.
110
Id. at 2574-75 (citing 57 Fed. Reg. 17961 (1992) (“[T]he [generic drug’s] labeling must be the same as the
listed drug product’s labeling because the listed drug product is the basis for [generic drug] approval.”)).
111
Id. at 2575-77.
112
Id. at 2575.
19
change a label to match an updated brand-name drug label or per FDA instructions113; accordingly,
the Court deferred to the FDA and found that unilateral change, as would be required by the state
laws in question, would violate the generic manufacturers’ duty of sameness.114 The plaintiffs further
argued that there existed other avenues by which manufacturers could provide additional warnings
to patients, such as “Dear Doctor” letters in which additional warnings were sent to physicians and
healthcare professionals.115 Again, the Court deferred to the FDA and determined that such an
avenue was unavailable to generic manufacturers because such letters would constitute labeling and,
therefore, would be in violation of the duty of sameness.116
Having denied that generic manufacturers could use the CBE process or “Dear Doctor” letters
to effect change, the FDA noted in its amicus brief that an additional avenue existed for generic
manufacturers to strengthen a label: proposing a stronger warning label to the FDA.117 However,
the Court determined that even if there existed a duty for the generic manufacturers to work toward
strengthening a drug’s label, preemption nonetheless existed because the generic manufacturer still
would not be in compliance with state law.118 The Court stated:
We find impossibility here. It was not lawful under federal law for the Manufacturers
to do what state law required of them. And even if they had fulfilled their [assumed]
113
Id. at 2575.
114
Id.
115
Id. at 2576.
116
Id.
117
See id.
118
Id. at 2577 (“Because we ultimately find pre-emption even assuming such a duty existed, we do not resolve
the matter [of whether a duty existed].”)
20
federal duty to ask for FDA assistance, they would not have satisfied the requirements
of state law.119
The Court found that even such a duty “to ask the FDA for help in strengthening the corresponding
brand-name label, assuming such a duty exists, does not change this analysis. Although requesting
FDA assistance would have satisfied the Manufacturers’ federal duty, it would not have satisfied
their state tort-law duty to provide adequate labeling.”120
However, the plaintiffs argued that because the defendant manufacturers had done nothing
to attempt to change the labels, the plaintiffs’ claims should not be preempted because the
manufacturers might have been able to accomplish what state law required of them and, therefore,
there existed no impossibility sufficient to support preemption.121 Specifically, “Mensing and
Demahy assert[ed] that when a private party’s ability to comply with state law depends on approval
and assistance from the FDA, proving pre-emption requires that party to demonstrate that the FDA
would not have allowed compliance with state law.”122 Although this argument persuaded four
members of the Court,123 it did not persuade the majority.124 The majority concluded that “[t]he
question for ‘impossibility’ is whether the private party could independently do under federal law
what state law requires of it,” and the majority determined that conflict preemption would be
119
Id.
120
Id. at 2578 (emphasis added).
121
Id. at 2578.
122
Id. at 2578-79.
123
See id. at 2582-83 (Sotomayor, J., dissenting).
124
Mensing, 131 S.Ct. at 2579 (“Here, [plaintiffs] argue, the M anufacturers cannot bear their burden of proving
impossibility because they did not even try to start the process that might ultimately have allowed them to use a safer
label. This is a fair argument, but we reject it.”) (internal citation omitted).
21
rendered largely meaningless if the Court were to accept plaintiffs’ argument.125 The Court
concluded, “pre-emption analysis should not involve speculation about ways in which federal agency
and third-party actions could potentially reconcile federal duties with conflicting state duties. When
the ‘ordinary meaning’ of federal law blocks a private party from independently accomplishing what
state law requires, that party has established pre-emption.”126 Therefore, the Court held that the
plaintiffs’ claims were preempted.127
In Mensing, the Court did not specifically reverse, or even address, one of the arguments that
had been raised before one of the appellate courts below.128 There, Mensing had put forth an
argument that the manufacturer could have removed the drug from the market and therefore could
have accomplished its duties under state law.129 However, on remand, the Eighth Circuit interpreted
the Supreme Court’s ruling in Mensing to encompass the failure-to-withdraw theory, and the Eighth
Circuit vacated the portion of its opinion that had embraced that theory.130 Moreover, federal courts
within Louisiana have considered this argument and have found it without merit:
Charging a generic drug manufacturer with a duty to withdraw its product from the market
fits uneasily into any of the four recognized claims under the LPLA. It is plainly not a
manufacturing or design defect claim, nor is it a warranty claim. If anything, it is a failure
to warn claim. The logic would go something like this: a manufacturer has a duty to warn
consumers of dangers; the drug labeling indicates some of its dangers, but the labeling is
not enough; federal law disallows stronger labeling, so the only way to responsibly
125
Id. at 2579.
126
Id. at 2580-81 (“[W ]hen a party cannot satisfy its state duties without the Federal Government’s special
permission and assistance, which is dependent on the exercise of judgment by a federal agency, that party cannot
independently satisfy those state duties for pre-emption purposes.”).
127
Id. at 2581.
128
Mensing v. Wyeth, Inc., 588 F.3d 603 (8th Cir. 2009).
129
Id. at 611.
130
See Mensing v. Wyeth, Inc., 658 F.3d 867 (8th Cir. 2011).
22
account for the danger is to take the drug off the market altogether. See Mensing v. Wyeth,
Inc., 588 F.3d 603, 611 (8th Cir. 2009), rev’d, 131 S.Ct. 2567 (2011). But if it is this logic
which permits a withdrawal from the market claim to stand, that claim did not survive the
Supreme Court’s reversal of the Eighth Circuit in Mensing. Such contentions cleverly
dress up failure to warn claims in a tempting but ultimately illegitimate guise. If state law
could require a generic drug manufacturer to wholly withdraw from the market based on
the unreasonable danger of the product (which is all a successful failure to withdraw from
the market claim could be), it necessarily must repudiate the label approved by the
FDA.131
Additionally, although the Supreme Court in Mensing was only confronted with the question
of whether a plaintiff’s failure to warn claim would be preempted by federal law, numerous lower
courts have since confronted the question of whether a design defect claim is also preempted as a
result of the generic manufacturer’s duty of sameness. Overwhelmingly, these courts have found that
such a claim is preempted,132 largely on the basis that federal law requires a generic drug to be of the
same design as its brand name counterpart.133 A generic drug must be the same as the reference
listed drug in active ingredients, safety, and efficiency.134 Therefore, these courts have found it
would be impossible for a generic manufacturer to alter the design of its product without violating
the generic manufacturer’s federal duty of sameness, creating impossibility and thus preempting such
claims.
131
Cooper v. Wyeth, Inc., No. 09-0929, 2012 W L 733846 (M .D. La. Mar. 6, 2012); see also Johnson v. Teva
Pharms. USA, Inc., No. 10-0404, 2012 W L 1866839, at *5 (W.D. La. May 21, 2012). Federal courts sitting in Louisiana
are not alone in their conclusion that a failure to withdraw from the market argument does not overcome impossibility
preemption. See, e.g., Eckhardt v. Qualitest Pharms., Inc., No. 11-0235, 2012 W L 1511817 (S.D. Tex. Apr. 30, 2012).
132
See, e.g., Stevens v. PLIVA, Inc., No. 10-0886, 2011 W L 6224569, at *2 (W.D. La. Nov. 15, 2011);
Johnson, 2012 W L 1866839, at *4; Eckhardt, 2012 W L 1511817, at *7 (“Therefore, Generics were required to produce
a drug that was equivalent to the brand-name drug and were not free to unilaterally pursue a safer alternative design in
order to comply with state law. The design defect claim is thus preempted and therefore dismissed.”).
133
See 21 U.S.C. § 355(j) (setting forth that a generic drug must be bioequivalent to its brand name reference
drug to receive FDA approval via an abbreviated process).
134
Id.
23
C. Analysis
In this case, Plaintiff primarily presents arguments of precisely the type rejected by the
Supreme Court in Mensing, and this Court finds that all of Plaintiff’s claims asserted in her
complaints135 either are preempted in accordance with that decision or fail to state a claim upon
which relief may be granted, or both.
1. Failure to Monitor Drug Safety
First, the Court notes that the LPLA provides the exclusive remedy for product liability
claims under Louisiana law,136 and failure to monitor drug safety does not fall under the available
avenues of relief.137 However, the Court also finds that Plaintiff’s claim asserted as failure to
monitor drug safety is more appropriately considered as a failure to warn claim. Plaintiff asserts that
Defendants failed to monitor the safety of their products once they entered the market, but the LPLA
provides that a manufacturer may be “liable for damage caused by his subsequent failure to use
reasonable care to provide an adequate warning . . .”138 and even post-market monitoring efforts must
necessarily result in warnings to patients and physicians if they are to have any effect. The Court in
135
Again, the Court notes that it need not consider the viability of Plaintiff’s claim that PLIVA failed to provide
an adequate warning because of its alleged failure to update its warning label following FDA approval of label changes,
given that Plaintiff has not alleged such a claim in any version of her complaints.
136
La. R.S. § 9:2800.52.
137
La. R.S. § 9:2800.54. Thus, even assuming that there existed a duty to report, such a duty would exist only
as a matter of federal law, and only the federal government may bring an action to enforce the provisions of the Food,
Drug, and Cosmetic Act (“FDCA”). See 21 U.S.C. § 337(a) (providing that proceedings for enforcement, or to restrain
violations, of the FDCA “shall be by and in the name of the United States”); see also Buckman Co., 531 U.S. at 349 n.4
(“FDCA leaves no doubt that it is the federal government rather than private litigants who are authorized to file suit for
noncompliance.”).
138
La. R.S. § 9:2800.57(C).
24
Mensing expressly found preempted such warnings in contravention of the generic manufacturer’s
federal duty of sameness, as further explained below. Thus, this claim fails and must be dismissed.
2. Design Defect
Next, Plaintiff asserts that metoclopramide was unreasonably dangerous in design. However,
to establish a design defect claim, among other requirements, Plaintiff must demonstrate the
“essential element”139 that there existed an available alternative design.140 Plaintiff’s complaints are
devoid of any such allegations of alternative design; it is only in Plaintiff’s arguments in response
to the pending motion that Plaintiff first alleges an available alternative design – “unit of use”
packaging, which would limit the amount of drug dispensed to a particular patient and provide
warning information directly to the patient. However, generally a court “must not go outside the
pleadings” when ruling on a motion to dismiss.141 Federal Rule of Civil Procedure 7 defines
“pleadings” to include only complaints, answers, and, if ordered by the Court, a reply to an answer.142
Thus, Plaintiff’s design defect claim must fail for being inadequately pled.
139
See, e.g., Ivory v. Pfizer, No. 09-0072, 2009 W L 323061, at *3 (W.D. La. Sept. 30, 2009) (citing Guidry
v. Events Pharms., Inc., 418 F. Supp. 835, 842 (M .D. La. 2006); Green v. BDI Pharms., 803 So.2d 68, 78 (La. App. 2
Cir. 2001)).
140
See La. R.S. § 9:2800.56.
141
See, e.g., Scanlan v. Texas A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003) (answering the question of
whether, on a motion to dismiss, a district court erred in relying on documents outside the complaints and noting that
a district court “may not go outside the complaint” except for the “limited exception” of when the court considers
documents that are attached to the motion to dismiss and those documents “are referred to in the plaintiff’s complaint
and are central to the plaintiff's claim”).
142
Fed. R. Civ. P. 7(a) (“PLEADINGS. Only these pleadings are allowed: (1) a complaint; (2) an answer to
a complaint; (3) an answer to a counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party
complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an answer.”). All other
documents fall within Rule 7(b), “M OTIONS AND OTHER PAPERS.”
25
Furthermore, even if this Court were to go outside the pleadings to consider the late-alleged
alternative design as pled, the alleged alternative design is a proposed alternative packaging, rather
than an alternative design for the drug. As such, even if this Court were not inclined to agree with
lower courts that have found design defect claims preempted under Mensing143 and if this Court had
not itself previously found design defect claims preempted under Mensing,144 Plaintiff cites no
authority that deems unit of use packaging an adequate alternative design. This Court finds that this
particular claim sounds in failure to warn and is preempted under Mensing. Thus, this claim also
must be dismissed.
3. Failure to Provide Adequate Warning
As in Mensing, the defendants here could not change, strengthen, or alter the label in any way
without the prior approval of the FDA, and thus, Defendants “could [not] independently do under
federal law what state law require[d] of [them]” without violating federal law, thus establishing
preemption. Plaintiff appears to acknowledge this result.145 However, Plaintiff argues that
Defendants were not prevented from “taking actions other than changing the content of [the drug’s]
143
In Mensing, the Supreme Court noted that a generic drug manufacturer has a duty of sameness, and federal
law specifically requires a generic drug to be the bioequivalent of its name-brand counterpart. See 21 U.S.C. § 355(j).
Therefore, a generic manufacturer cannot alter the design of a drug without violating federal law and this duty of
sameness, making it impossible for a generic manufacturer independently to comply with both federal and state law.
Numerous lower courts have considered this issue and have found the failure-to-warn reasoning of M ensing equally
applicable to design defect claims. See, e.g., Stevens, 2011 W L 6224569, at *2; Johnson, 2012 W L 1866839, at *4;
Eckhardt, 2012 W L 1511817, at *7.
144
Aucoin v. Amneal, No. 11–1275, 2012 W L 2990697 (E.D. La. July 20, 2012) (Brown, J.).
145
Rec. Doc. 105 at p. 3.
26
label”146 and argues that there was much that Defendants could have and were required to do.147
Plaintiff points out that the Court in Mensing assumed that there existed a duty for generic
manufacturers to seek to change a drug’s label if it had reason to believe that a change was necessary
and argues that claims based on such inaction are not preempted by Mensing.148 Additionally,
Plaintiff argues that Defendants could have removed the drug from the market149 and that Defendants
could have utilized tools and other communication methods such as “Dear Doctor” letters to
minimize risk.150
These arguments, however, have previously been considered and rejected by the Supreme
Court.151 Plaintiff ignores the fact that the majority of the Supreme Court in Mensing explicitly
rejected these same arguments regarding other actions that could have been taken152 and the fact that
the Supreme Court explicitly held that even if a duty to work toward label changes existed, the
plaintiffs’ claims were preempted nonetheless.153 Additionally, this Court finds that Plaintiff’s
arguments regarding Defendants’ failure to withdraw from the market fail. Although not specifically
addressed by the Supreme Court, this Court agrees with the reasoning advanced by other courts that
146
Id. at p. 9.
147
See id. at p. 5-6.
148
Id at pp. 5-6 and 17 (“Nor does [Mensing] preempt any claim where the manufacturer could have satisfied
its duty under state law by approaching the FDA with information supporting a label change for metoclopramide.”).
149
Id. at p. 9 (“such as refraining from putting its metoclopramide on the market”).
150
Id. at p. 16-17.
151
Mensing, 131 S.Ct. at 2579.
152
Id. at 2575-77
153
Id. at 2577.
27
have considered this issue since the Mensing decision was rendered.154 To require a generic
manufacturer to remove a drug from the market would repudiate the label approved by the FDA.
However, Plaintiff also argues in her response in opposition that defendant PLIVA never
updated its warning label to match brand-name labels and include prohibitions on long-term use of
metoclopramide after changes to the label were approved by the FDA, such that Plaintiff’s claims
are not preempted.155 A review of Plaintiff’s complaints reveals that nowhere in the four corners of
Plaintiff’s Complaint, First Amended and Restated Complaint, or Second Amended and Restated
Complaint does Plaintiff assert that PLIVA failed to update its warning label for its generic drug
after changes had been approved by the FDA; this argument appears only in Plaintiff’s opposition
to the pending motion. As this Court has already noted, a court generally should not consider claims
not alleged within a plaintiff’s complaint.
Additionally, the Court notes that Plaintiff has not requested leave to amend her complaint
to include this allegation concerning PLIVA’s alleged failure to update its warning label, nor has
Plaintiff made any statements that could be construed as such a request. Leave to amend is
“entrusted to the sound discretion of the district court.”156 A great deal of time has passed since
Defendants filed their reply to the pending motion, which opposition should have alerted Plaintiff
that this particular claim was absent from her complaints. Although the deadline for amendments
to pleadings had long since passed when Defendants’ opposition was filed,157 Plaintiff could have
154
See, e.g., Cooper, 2012 W L 733846; Johnson, 2012 W L 1866839; Eckhardt, 2012 W L 1511817.
155
Rec. Doc. 105 at p. 2.
156
Jones v. Robinson Prop. G rp., L.P., 427 F.3d 987, 994 (5th Cir. 2005) (quoting Quintanilla v. Tex.
Television, Inc., 139 F.3d 494, 499 (5th Cir. 1998)).
157
See Rec. Doc. 61.
28
sought leave to amend.158 Considering that Plaintiff has not requested leave to amend her complaint,
that Plaintiff has twice amended her complaint previously, that a great deal of time has passed since
Plaintiff was put on notice that this claim was omitted, and that PLIVA would be prejudiced were
this Court to hold otherwise, this Court does not find it appropriate to construe Plaintiff’s newly
asserted argument as a request to amend her complaint.159
Thus, this Court need not reach a conclusion regarding whether a claim against PLIVA for
failure to update its warning labels after changes were approved by the FDA is preempted.
Accordingly, Plaintiff has not properly pled a failure to warn claim based on PLIVA’s failure to
update its warning label, and Plaintiff’s other failure to warn claims are preempted and must be
dismissed in accordance with the United States Supreme Court’s decision in Mensing.
4. Failure to Conform to Express Warranty
Finally, Plaintiff alleges that the package insert provided by Defendants contained false
statements about the risk of side effects posed by the drug, resulting in a failure of the drug to
conform to an express warranty by the manufacturers. However, Plaintiff’s complaints fail to allege
or identify any express warranties by Defendants beyond the allegedly false statements contained in
the package insert. Specifically, Plaintiff has not alleged that Defendants advertised their products,
detailed their products to doctors, or made any other forms of communication regarding the drug.
158
Federal Rule of Civil Procedure 16(b) governs amendment of pleadings after the scheduling order’s deadline
for amendments has passed, as here; the rule provides that a scheduling order “may be modified only for good cause and
with the judge’s consent.”
159
Likewise, in a case where allegations were not pled in an amended complaint and were only asserted in later
briefings on a motion to dismiss for failure to state a claim, the Fifth Circuit left undisturbed the district court’s decision
to decline to consider the allegations. City of Dallas v. Hall, 562 F.3d 712, 723 (5th Cir. 2009).
29
In fact, Plaintiff stated in her opposition to the pending motion that Defendants “never provided
Plaintiff or her physicians with ANY warning or other information with regard to
metoclopramide.”160
Thus, the only express warranty allegedly violated by Defendants’ drug was the alleged
warranty on the package insert. However, “[a] warranty is not a warning, nor is it a mandatory
packaging or labeling condition. . . .”161 Thus, Plaintiff has failed to allege a violation of an express
warranty and has merely restyled her failure to warn claim as such. As explained above, such failure
to warn claims are expressly preempted under Mensing, and so this alleged failure to conform to an
express warranty claim also must fail because Plaintiff has failed to allege a violation of an express
warranty that is not actually a failure to warn claim preempted by Mensing.
IV. Conclusion
For the reasons set forth above, the Court will dismiss Plaintiff’s failure to monitor drug
safety claim as a failure to warn claim preempted under Mensing; will dismiss Plaintiff’s design
defect and failure to conform to an express warranty claims as failure to warn claims preempted
under Mensing, or alternatively, for failure to satisfy the requisite pleading standard to state a claim;
and will dismiss Plaintiff’s failure to provide an adequate warning claim as preempted under
Mensing. Accordingly,
160
Rec. Doc. 105 at p. 2 (emphasis added).
161
Fields, 37 So.3d at 557.
30
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss162 is GRANTED and that
the above-captioned case is DISMISSED WITH PREJUDICE.
20th
NEW ORLEANS, LOUISIANA, this ____ day of August, 2012.
_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
162
Rec. Doc. 103.
31
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