Lecompte v. Bayer Healthcare, L.L.C.
Filing
11
ORDER AND REASONS granting 6 Motion to Dismiss non-LPLA claims. Signed by Judge Martin L.C. Feldman on 9/14/16. (clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARY LECOMPTE
CIVIL ACTION
V.
NO. 16-13315
BAYER HEALTHCARE, L.L.C.
SECTION "F"
ORDER AND REASONS
Before the Court is defendant’s motion to dismiss. For the
following reasons, the motion is GRANTED.
Background
Mary LeCompte brings a products liability lawsuit claiming
that she suffered personal injuries after using Dr. Scholl’s Extra
Thick Callus Removers. She sues Bayer Healthcare, L.L.C. as the
alleged manufacturer of the product.
LeCompte used the callus remover on her left great toe to
treat a callus. She alleges that after she applied the callus
remover,
she
suffered
burning,
swelling,
pain,
lesions,
and
infection in her left great toe. LeCompte sought medical treatment
from her primary care physician, the emergency room, a podiatrist,
and other medical professionals for her injuries. She asserts that
the injuries affect her ability to walk and partake in daily life
and that surgery is needed to correct the damages.
LeCompte
claims
Bayer
negligently
and
recklessly
manufactured, sold, distributed, retailed and otherwise placed or
caused to be placed into the stream of commerce the callus removers
and Bayer knew, or with the use of reasonable care should have
known, the callus removers were dangerous and defective. The
complaint continues that Bayer knew, or should have known, that
the callus removers lacked adequate and proper warnings, which
Bayer negligently and carelessly failed and refused to provide to
LeCompte.
Additionally,
she
maintains
Bayer
deviated
from
applicable FDA requirements in its manufacturing of the callus
remover and those deviations led to a defective productive that
the
plaintiff
used.
Finally,
LeCompte
claims
Bayer
breached
implied and express warranties as a direct result of the injuries
she suffered.
LeCompte is a resident of Louisiana and originally filed this
claim in Louisiana state court. The defendant properly removed the
action
to
this
Court
under
28
U.S.C.
§
1332
(a). Bayer moves to dismiss all of the plaintiff’s claims not
specified in the Louisiana Products Liability Act on the ground
that the LPLA provides “the exclusive” remedy for harm caused by
a manufacturer’s product.
I.
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state
a claim upon which relief can be granted. Such a motion is rarely
granted because it is viewed with disfavor. See Lowrey v. Tex. A
& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982)).
Thus,
in
considering
a
Rule
12(b)(6)
motion,
the
Court
"accepts 'all well-pleaded facts as true, viewing them in the light
most favorable to the plaintiff.'" See Martin K. Eby Constr. Co.
v. Dall. Area Rapid Transit, 369 F.3d 464 (5th Cir. 2004) (quoting
Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)). But, in
deciding whether dismissal is warranted, the Court will not accept
conclusory allegations in the complaint as true. Kaiser, 677 F.2d
at 1050. Indeed, the Court must first identify allegations that
are conclusory and thus not entitled to the assumption of truth.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). A corollary: legal
conclusions "must be supported by factual allegations." Id. at
678.
Assuming
the
veracity
of
the
well-pleaded
factual
allegations, the Court must then determine "whether they plausibly
give rise to an entitlement to relief." Id. at 679.
II.
The LPLA provides “the exclusive theories of liability for
manufacturers for damage caused by their products.” La. R.S. §
9:2800.52. To eliminate any doubt, the Act goes on, “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 set forth in
this Chapter.” Id. The LPLA only allows recovery if a product is
unreasonably dangerous: 1) in construction or composition; 2) in
design;
3)
because
nonconformity
to
of
inadequate
express
warranty.
warning;
La.
or
R.S.
4)
§
because
of
9:2800.54-58.
Accordingly, all theories of recovery that fall outside of these
four must be dismissed.
Plaintiff’s
complaint
asserts
claims
for
negligence,
for
negligently and recklessly manufacturing, selling, distributing,
retailing or placing into commerce a dangerous and defective
product, deviation from FDA requirements, and breach of implied
warranties. These three claims fall outside the scope the LPLA
exclusive remedy for products liability suits. Because Louisiana
products liability law precludes these claims, relief cannot be
granted and the Court must dismiss the claims. Fed. R. Civ. P.
12(b)(6); La. R.S. § 9:2800.54-58. Plaintiff’s remaining claims
for dangerous construction or composition, failure to include
adequate warnings, and breach of express warranty are unaffected
by defendant’s current motion to dismiss.
Accordingly, it is ORDERED that Bayer’s motion to dismiss
non-LPLA claims is GRANTED.
New Orleans, Louisiana, September 14, 2016
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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