Macaluso et al v. Bristol-Myers Squibb et al

Filing 26

ORDER AND REASONS re 14 MOTION to Dismiss for Failure to State a Claim - IT IS ORDERED that defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART as set forth herein. Plaintiff has leave to file an amended complaint addressing the present infirmities with the failure to warn claim no later than October 26, 2016. Should defendants still contend that any amended complaint does not plead causation on the failure to warn claim, defendants may file a motion to dismiss the clai m on such grounds no later than November 4, 2016. Should defendants do so, plaintiff shall respond no later than November 14, 2016, at which point the Court will take the motion under submission. IT IS ORDERED that defendants motion for a more defini te statement is GRANTED. No later than October 26, 2016, plaintiff shall file an amended complaint specifying (1) when the decedent was injured by Eliquis, and (2) when the decedent became aware of her injuries. Should defendants contend that dismis sal on prescription grounds is appropriate based on the pleadings, defendants shall so move no later than November 4, 2016.3 Should defendants do so, plaintiff shall respond no later than November 14, 2016, at which point the Court will take the motion under submission. Signed by Judge Lance M Africk on 10/18/2016.(blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KAREN MACALUSO,
INDIVIDUALLY AND AS THE
PERSONAL REPRESENTATIVE OF
THE ESTATE OF JOSEPHINE GALIANO

CIVIL ACTION

VERSUS

No. 16-3673

BRISTOL-MYERS SQUIBB ET AL.

SECTION I

ORDER AND REASONS
Before the Court is defendants’ motion 1 to dismiss and for a more definite
statement. The Court recently resolved a substantively identical motion in another
case pending before it, one involving the same defendants as this case and all of the
same lawyers. See Huffman v. Bristol-Myers Squibb et al., Civil Action No. 16-3714,
R. Doc. No. 27. In fact, the only difference worth noting between this case and
Huffman in terms of the legal issues raised by defendants’ motion is that in this case
the plaintiff is suing individually and in a representative capacity on behalf of
Josephine Galiano, who allegedly died as the result of defendants’ product. Compl.
¶¶ 4, 13.
It follows that the result in Huffman should also govern here. Accordingly, for
the same reasons provided in this Court’s order and reasons in the Huffman case, 2

1
2

R. Doc. No. 14.
Huffman v. Bristol-Myers Squibb et al., Civil Action No. 16-3714, R. Doc. No. 27.

IT IS ORDERED that defendants’ motion to dismiss is GRANTED IN PART
and DENIED IN PART as set forth herein. Plaintiff has leave to file an amended
complaint addressing the present infirmities with the failure to warn claim no later
than October 26, 2016.

Should defendants still contend that any amended

complaint does not plead causation on the failure to warn claim, defendants may file
a motion to dismiss the claim on such grounds no later than November 4, 2016.
Should defendants do so, plaintiff shall respond no later than November 14, 2016,
at which point the Court will take the motion under submission.
IT IS ORDERED that defendants’ motion for a more definite statement is
GRANTED.

No later than October 26, 2016, plaintiff shall file an amended

complaint specifying (1) when the decedent was injured by Eliquis, and (2) when the
decedent became aware of her injuries. Should defendants contend that dismissal on
prescription grounds is appropriate based on the pleadings, defendants shall so move
no later than November 4, 2016. 3 Should defendants do so, plaintiff shall respond
no later than November 14, 2016, at which point the Court will take the motion
under submission.
New Orleans, Louisiana, October 18, 2016.
_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

To be clear, failure to so move would not waive the ability to timely move for
summary judgment on the issue provided that any such defense is raised in the
answer.

3

2