Doe v. AstraZeneca Pharmaceuticals LP et al

Filing 20

ORDER & REASONS: ORDERED that AstraZeneca's Motion to Dismiss and Amend Case Caption (Rec. Doc. 15) is GRANTED. FURTHER ORDERED that Plaintiff's claims are DISMISSED WITHOUT PREJUDICE. Plaintiff shall file an amended complaint within tw enty-one (21) days, lest Plaintiff's claims be dismissed with prejudice. FURTHER ORDERED that the caption of this case be amended to reflect Plaintiff's true identity. FURTHER ORDERED that Plaintiff's Motion for Oral Argument (Rec. Doc. 18) is DENIED. Signed by Judge Carl Barbier on 8/5/15. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JANE DOE

CIVIL ACTION

VERSUS

NO: 15-438

ASTRAZENECA PHARMECEUTICALS,

SECTION: J(2)

LP, ET AL
ORDER AND REASONS
Before the Court is a Motion to Dismiss and Amend Case
Caption

(Rec.

Doc.

15)

filed

by

Defendant,

AstraZeneca

Pharmaceuticals, LP (“AstraZeneca”), and an Opposition thereto
(Rec. Doc. 17) by Plaintiff, Jane Doe (“Plaintiff”). Plaintiff
has

requested

that

the

Court

conduct

Oral

Argument

on

the

instant motion. (Rec. Doc. 18). Having considered the motion,
the parties’ submissions, the record, and the applicable law,
the

Court

finds,

for

the

reasons

expressed

below,

that

the

motion should be GRANTED.
PROCEDURAL AND FACTUAL BACKGROUND
In her complaint, Plaintiff, who has requested that her
identity remain anonymous, alleges that she sustained adverse
effects from her use of Seroquel and/or Seroquel XR, and their
generics,

Quetiapine

and

Quetiapine
1

Fumarate,

respectively.

AstraZeneca is the manufacturer of Seroquel and Seroquel XR,
whereas Quetiapine and Quetiapine Fumarate are manufactured by
Defendants

Lupin

Pharmaceuticals,

Inc.

(“Lupin”)

and

Teva

Pharmaceuticals, Inc. (“Teva”). Seroquel, Seroquel XR, and their
generics are approved by the U.S. Food and Drug Administration
(“FDA”)

for

treatment

of

schizophrenia

and

bipolar

disorder.

(Rec. Doc. 1, p. 4). Plaintiff alleges that she was prescribed
Seroquel, Seroquel XR, Quetiapine, and Quetiapine Fumarate “for
sleep.” (Rec. Doc. 1, p. 4). Plaintiff further alleges that as a
result of taking these prescription medications she sustained a
litany of injuries including, “weight gain, inability to lose
weight,

medical

suffering,

severe

complications,
abdominal

physical

pain,

damages,

pain

gastrointestinal

and

problems,

hyperlipidia, mental anguish, [and] emotional distress,” as well
as a number of more personal injuries which Plaintiff preferred
to describe in a document filed under seal. (Rec. Doc. 1, p. 8;
Rec. Doc. 4). In her complaint, Plaintiff alleges that Seroquel,
Seroquel

XR,

and

their

generics

are

“unreasonably

dangerous”

both because AstraZeneca failed to provide an adequate warning
regarding

the

drugs’

adverse

effects

to

Plaintiff

or

her

physician, and because the medications fail to conform to the
express

warranty

that

they

are

“safe,

effective

product[s].”

(Rec. Doc. 1, pp. 11, 15). Upon Plaintiff’s motion, on June 10,
2

2015, this Court dismissed Plaintiff’s claims against Lupin and
Teva, leaving AstraZeneca as the sole defendant in this matter.
AstraZeneca has filed the instant motion seeking dismissal
of

all

Plaintiff’s

claims

pursuant

to

Federal

Rule

of

Civil

Procedure 12(b)(6), and also requesting that the Court amend the
case caption of this matter to disclose Plaintiff’s identity
pursuant to Federal Rule of Civil Procedure 10(a).
PARTIES’ ARGUMENTS
AstraZeneca

first

argues

that

all

claims

asserted

by

Plaintiff in her complaint which fall outside the scope of the
Louisiana Products Liability Act (“LPLA”) must be dismissed, as
the LPLA provides the exclusive remedy for liability against a
manufacturer

for

damage

caused

by

its

products.

AstraZeneca

further asserts that even those claims which the Court deems to
fall within the scope of the LPLA should be dismissed because
Plaintiff has failed to allege sufficient facts to state a claim
under any of the four theories of liability enumerated by the
LPLA. AstraZeneca also requests that the Court amend the caption
of the case to reflect Plaintiff’s true identity, because the
present

circumstances

do

not

require

that

Plaintiff

litigate

anonymously.
In response, Plaintiff maintains that her complaint asserts
plausible

LPLA

claims

under

theories
3

of

failure

to

provide

adequate

warnings

and

failure

to

comply

with

an

express

warranty. Moreover, in her Opposition, Plaintiff requests leave
to

amend

support

her
a

complaint

claim

construction

that

or

to

include

Seroquel

composition

is

and/or

additional

information

to

dangerous

in

unreasonably
in

design,

and

to

remove

extra allegations pertaining to Defendants Teva and Lupin, who
have been dismissed from this matter. Plaintiff also maintains
that her complaint contains no claims beyond the scope of the
LPLA.

Finally,

Plaintiff

requests

that

the

case

caption

be

maintained to prevent disclosure of her true identity, because
this

lawsuit

would

reveal

private

information

regarding

her

medical condition.
LEGAL STANDARD
Under the Federal Rules of Civil Procedure, a complaint
must contain “a short and plain statement of the claim showing
that

the

pleader

is

entitled

to

relief.”

Fed.

R.

Civ.

P.

8(a)(2). The complaint must “give the defendant fair notice of
what the claim is and the grounds upon which it rests.” Dura
Pharm.,

Inc.

v.

Broudo,

544

U.S.

336,

346

(2005).

The

allegations “must be simple, concise, and direct.” Fed. R. Civ.
P. 8(d)(1).
“Under

Rule

12(b)(6),

a

claim

may

be

dismissed

when

a

plaintiff fails to allege any set of facts in support of his
4

claim which would entitle him to relief.” Taylor v. Books A
Million,

Inc.,

296

F.3d

376,

378

(5th

Cir.

2002)

(citing

McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 561 (5th
Cir. 1998)). To survive a Rule 12(b)(6) motion to dismiss, the
plaintiff must plead enough facts 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,
547 (2007)). A claim is facially plausible when the plaintiff
pleads

facts

inference

that

that

the

allow

the

court

defendant

is

to

“draw

the

reasonable

for

the

misconduct

liable

alleged.” Id. A court must accept all well-pleaded facts as true
and

must

draw

all

reasonable

inferences

in

favor

of

the

plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232-33
(5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.
1996). The court is not, however, bound to accept as true legal
conclusions couched as factual allegations. Iqbal, 556 U.S.at
678.
DISCUSSION
A. Non-LPLA Claims
The LPLA “establishes

the exclusive theories

of

liability

for manufacturers for damage caused by their products,” and “a
claimant may not recover from a manufacturer for damage caused
by a product on the basis of any theory of liability that is not
5

set

forth

(2014).
pleading

in

[the LPLA].”

AstraZeneca
which

La.

contends

claims

are

Rev.

that

being

Stat.

“it

is

asserted

Ann.

§

unclear
under

the

9:2800.52
from

the

LPLA

or

otherwise,” and submits that all non-LPLA claims asserted by
Plaintiff must be dismissed pursuant to Rule 12(b)(6). (Rec.
Doc. 15-1, p. 4). In response, Plaintiff maintains that “there
are

no

non-Louisiana

Products

Liability

Act

claims

in

this

case.” (Rec. Doc. 17, p. 10).
The Court agrees with AstraZeneca that it is difficult to
determine from Plaintiff’s complaint and Opposition the exact
type and number of claims she is attempting to assert against
AstraZeneca and whether these fall within or outside the scope
of the LPLA. Therefore, to the extent that Plaintiff’s complaint
contains non-LPLA claims, these are preempted by the LPLA. See
Davis v. Teva Pharm. USA, Inc., No. 13-6365, 2014 WL 4450423, at
*4 (E.D. La. Sept. 10, 2014) (citing Stahl v. Novartis Pharms.
Corp., 283 F.3d 254, 261 (5th Cir. 2002)).
B. LPLA Claims
AstraZeneca next asserts that Plaintiff has failed to state
a plausible claim under any of the four theories of liability
provided for by the LPLA. AstraZeneca specifically contends that
Plaintiff’s

complaint

contains

only

“irrelevant

factual

assertions and legal conclusions,” and is devoid of sufficient
6

relevant factual allegations to state a plausible claim. (Rec.
Doc. 15-1, p. 2). In response, Plaintiff argues that she has set
forth a sufficient factual basis to support her claims under the
LPLA,

and

that

AstraZeneca

is

the

additional

information

factual

which

is

information
to

be

sought

by

appropriately

disclosed through the discovery process. (Rec. Doc. 17, p. 3).
Plaintiff maintains that her complaint asserts plausible claims
under

the

LPLA

for

the

unreasonable

danger

of

Seroquel

and

Seroquel XR under theories of failure to provide an adequate
warning and failure to conform to an express warranty. (Rec.
Doc. 17, p. 3). Moreover, Plaintiff requests the Court’s leave
to amend her complaint to assert additional claims under the
LPLA for unreasonable danger in construction or composition and
design, based on information which has come to light since the
filing of her original complaint. (Rec. Doc. 17, p. 7).
In order to prevail on a claim brought pursuant to the
LPLA, a plaintiff must establish the following elements: (1)
that the defendant is a manufacturer of the product; (2) that a
characteristic of the product was the proximate cause of the
claimant’s damage; (3) that the characteristic made the product
“unreasonably

dangerous”;

and

(4)

that

the

claimant’s

damage

arose from a reasonably anticipated use of the product. La. Rev.
Stat. Ann. § 9:2800.54(A) (2014). The LPLA defines a product as
7

“unreasonably

dangerous”

if

it

meets

at

least

one

of

the

following criteria:
(1)
(2)
(3)

The product is unreasonably dangerous in construction
or composition
The product is unreasonably dangerous in design
The product is unreasonably dangerous because an
adequate warning about the product has not been
provided
The product is unreasonably dangerous because it does
not conform to an express warranty made by the
manufacturer of the product.

(4)

La. Rev. Stat. Ann. § 9:2800.54(B); see also Stahl, 283 F.3d at
261; Jefferson v. Lead Indus. Ass’n, Inc., 930 F.Supp. 241, 245
(E.D. La. 1996 (Vance, J.).
In

her

complaint,

Plaintiff

asserts

that

Seroquel

and

Seroquel XR were unreasonably dangerous as defined by the LPLA
because they lacked adequate warnings and because they failed to
conform to an express warranty provided by AstraZeneca. Despite
labeling

these

Plaintiff

has

claims

under

claims
failed
either

as

to

such,

allege
of

AstraZeneca

sufficient

these

asserts

facts

theories

of

to

that

support

liability.

Specifically, AstraZeneca notes that Plaintiff’s complaint lacks
information

regarding

the

dates

on

which

Plaintiff

was

prescribed the drugs, the duration and number of times Plaintiff
took the drugs, and the dates on which she began experiencing
adverse symptoms. (Rec. Doc. 15-1, p. 2). In response, Plaintiff
maintains that these facts were unnecessary to state a plausible
8

claim.

Despite

not

providing

any

additional

facts

in

her

Opposition, Plaintiff does provide the Court with nearly four
unnecessary pages of direct citations of various provisions of
the LPLA.
In order to maintain a failure-to-warn claim, “a plaintiff
must

demonstrate

that

that

may

damage

cause

reasonable

care

characteristic

to

and

the

product

and

the

provide

its

possessed
manufacturer

an

danger

a

adequate

to

users

characteristic
failed

warning

and

to
of

handlers

use
such

of

the

product.” Stahl, 283 F.3d at 261 (citing La. Rev. Stat. Ann. §
9:2800.57(A)

(2014)).

unnecessarily

repetitive

AstraZeneca
Plaintiff
extent

of

However,

failed

or
the

to

Plaintiff’s
legally
provide

Plaintiff’s
adverse

despite

the

conclusive
adequate

physician

effects

complaint

of

lengthiness

assertions

warnings

regarding
Seroquel

of

contains

the
and

Plaintiff’s

to

that
either

nature

and

Seroquel

XR.

allegations,

nowhere in her complaint does she make mention of any specific
adverse effect of which AstraZeneca failed to warn, or assert a
proper warning which she contends would have been appropriate.
Due to the vagueness of Plaintiff’s complaint, an issue remains
regarding

whether

warnings

regarding

AstraZeneca
specific

failed

adverse

to

provide

effects

of

the

adequate
drugs.

Plaintiff must amend her complaint to specifically allege the
9

reasons why the warnings provided by AstraZeneca regarding the
adverse effects of Seroquel and Seroquel XR were inadequate.
In order to maintain a claim for failure to conform to an
express

warranty

under

the

LPLA,

a

plaintiff

must

establish

that: “(1) the manufacturer made an express warranty regarding
the product, (2) the plaintiff was induced to use the product
because of that warranty, (3) the product failed to conform to
that

express

proximately

warranty,

caused

and

because

(4)
the

the

plaintiff’s

express

warranty

damage
was

was

untrue.”

Caboni v. Gen. Motors Corp., 278 F.3d 448, 452 (5th Cir. 2002)
(citing

La.

complaint,

Rev.

Stat.

Plaintiff

Ann.

§

9:2800.58

repeatedly

asserts

(2014)).
that

In

her

AstraZeneca

“expressly warranted in its materials presented to the FDA, its
website

and

promotional,

upon
and

information

and

informational

belief[,]

materials

that

safe, effective product.” (Rec. Doc. 1, p. 15).
to

reference

specific

promises

or

its

marketing,

Seroquel

is

a

Plaintiff fails

representations

made

by

AstraZeneca or to explain how the drugs prescribed to her failed
to conform to these representations. In order to proceed with
this litigation, Plaintiff must amend her complaint to include
sufficient factual allegations to support her claim for failure
to conform with an express warranty.

10

In her Opposition, Plaintiff also requests leave to amend
her

complaint

to

include

additional

LPLA

clams

premised

on

Seroquel and Seroquel XR’s unreasonable danger in construction
or composition and design. (Rec. Doc. 17, p. 10). Federal Rule
of Civil Procedure 15(a) provides that leave should be granted
to amend pleadings “when justice so requires.” Fed. R. Civ. P.
15(a). A decision to permit a party to amend pleadings lies
within the sound discretion of the trial court. Tyson v. Tanner,
No.

08-4445,

2010

WL

4808504,

at

*1

(citing

Addington

v.

Farmer’s Elevator Mut. Ins. Co., 650 F.2d 663, 666 (5th Cir.
1981)).

Plaintiff

complaint,

she

asserts

has

that

become

since

aware

of

the

filing

additional

of

her

testimony

regarding the nature and adverse effects of Seroquel, on which
she could base claims for unreasonably dangerous construction
and design. (Rec. Doc. 7-8). The Court finds that leave to amend
the complaint on this basis is appropriate. The Court, however,
cautions counsel for Plaintiff that it will not suffice to file
an

amended

complaint

in

which

she

alleges

purely

legal

conclusions without any factual basis.
C. Amendment of the Case Caption
Finally, AstraZeneca requests that the Court amend the case
caption

to

specifically

reveal

Plaintiff’s

asserts

that

true

Plaintiff
11

has

identity.
no

right

AstraZeneca
to

proceed

anonymously,

as

she

will

suffer

no

injury

other

than

mere

embarrassment as a result of the disclosure of her real name.
Plaintiff maintains that she should be permitted to litigate
anonymously, because “even one sentence, revealing [her] name
and stating that she has taken Seroquel will reveal that she has
a mental condition diagnosis [sic] and she should be afforded
privacy and protection.” (Rec. Doc. 17, p. 10).
Federal Rule of Civil Procedure 10(a) requires that the
title of a complaint disclose the names of all parties involved.
Fed.

R.

Civ.

P.

10(a).

This

rule

is

not

without

exception,

however, and in limited circumstances, a party may be permitted
to

proceed

anonymously

due

to

interests

of

privacy.

Doe

v.

Griffon Mgmt., LLC, No. 14-2626, 2014 WL 7040390, at *1 (E.D.
La. Dec. 11, 2014) (Africk, J.). Although the Fifth Circuit has
refused

to

adopt

a

“hard

whether

a

party

should

and
be

fast”

formula

permitted

to

for

determining

litigate

under

a

pseudonym, it has recognized that such a determination “requires
a

balancing

party’s

of

privacy

considerations
against

the

calling
customary

for
and

maintenance

of

a

constitutionally-

embedded presumption of openness in judicial proceedings.” Doe
v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981). “Examples of
areas

where

involving

courts

abortion,

have
birth

allowed

pseudonyms

control,
12

include

transsexuality,

cases
mental

illness,

welfare

rights

of

illegitimate

children,

AIDS,

and

homosexuality.” Griffon Mgmt., 2014 WL 7040390, at *2 (citing
Doe v. Megless, 654 F.3d 404, 408 (3d Cir. 2011)).
Plaintiff has failed to show that the present circumstances
rise to those examples discussed in Doe v. Griffon Management.
Plaintiff maintains that requiring her to litigate under her
true identity would reveal that she suffers from mental illness.
However, nowhere in her pleadings has Plaintiff ever asserted
that she is afflicted with a mental condition. Instead, in her
Complaint,

she

states

that

she

was

prescribed

Seroquel

and

Seroquel XR “for sleep.” (Rec. Doc. 1, p. 4). Because Plaintiff
has

failed

warrant

show

anonymity,

interests
practice

to

at
of

stake

that

the

do

of

Court

the

circumstances
concludes

that

not

disclosure.”

outweigh

See

the

Stegall,

her
the

“almost
653

F.2d

complaint
privacy
universal
at

186.

Therefore, the caption of this case will be amended to reflect
Plaintiff’s true identity.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that AstraZeneca’s Motion to Dismiss
and Amend Case Caption (Rec. Doc. 15) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s claims are DISMISSED
WITHOUT

PREJUDICE.

Plaintiff

shall
13

file

an

amended

complaint

within

twenty-one

(21)

days,

lest

Plaintiff’s

claims

be

dismissed with prejudice.
IT IS FURTHER ORDERED that the caption of this case be
amended to reflect Plaintiff’s true identity.
IT

IS

FURTHER

ORDERED

that

Plaintiff’s

Motion

for

Oral

Argument (Rec. Doc. 18) is DENIED.
New Orleans, Louisiana this 5th day of August, 2015.

________________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

14