Donald v. AstraZeneca Pharmaceuticals LP et al

Filing 20

ORDERED that the 8 Motion to Dismiss for Failure to State a Claim is granted in part and denied in part. ORDERED that only the plaintiff's claims for defect in design, defect in composition or construction, and failure to warn under the LPLA survive this motion to dismiss. FURTHER ORDERED that all non-LPLA claims are dismissed with prejudice. FURTHER ORDERED that the plaintiff's claim for breach of express warranty under the LPLA is dismissed. Signed by Judge Martin L.C. Feldman on 3/22/2017. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ALICE DONALD

CIVIL ACTION

V.

NO. 16-17753

ASTRAZENECA PHARMACEUTICALS,
LP, ET AL.

SECTION "F"

ORDER AND REASONS
Before the Court is the defendant’s motion to dismiss for
failure to state a claim. For the following reasons, the motion is
GRANTED in part and DENIED in part. The motion is GRANTED as to
any non-LPLA claims and the express warranty claim the plaintiff
pleads. The motion is DENIED as to LPLA claims for defective
design, defective

composition

or

construction,

and

inadequate

warning.
Background
Alice

Donald

filed

this

lawsuit

against

AstraZeneca

Pharmaceuticals LP and AstraZeneca LP for manufacturing a drug the
plaintiff ingested, which allegedly caused her kidney injuries.
The plaintiff alleges that she ingested the drug Nexium, which
AstraZeneca manufactures. In her complaint, the plaintiff brings
claims for: strict product liability, intentional infliction of
emotional distress, negligent infliction of emotional distress,
fraud,

negligence,

negligent

misrepresentation,

fraudulent

misrepresentation, and breaches of express and implied warranties.

1

The defendants move the Court to dismiss the plaintiff’s
claims on numerous grounds. First, the defendants contend that the
Louisiana Products Liability Act (LPLA) is the exclusive remedy
and precludes the plaintiff’s claims for intentional infliction of
emotion

distress,

negligent

fraud,

negligence,

infliction

negligent

of

emotional

misrepresentation,

distress,
fraudulent

misrepresentation, express and implied warranties. Additionally,
the defendants contend that the plaintiff failed to plead her claim
for fraud with particularity under Rule 9 and that she fails to
state claims upon which relief can be granted under Rule 8.
Finally, the defendants contend that the plaintiff failed to plead
any claims allowed under the LPLA with specificity. The Court
considers these contentions in turn.
I.

The Louisiana Products Liability Act

The Court first considers the applicability of the LPLA to
the plaintiff’s claims and whether any of the claims must be
dismissed as precluded under the LPLA.
The

LPLA

provides

the

“exclusive

remedy

for

products

liability suits” under Louisiana law. Demahy v. Schwartz Pharma,
Inc., 702 F.3d 177, 182 (5th Cir. 2012); see also LA. STAT. ANN. §
9:2800.52. “In order to maintain a successful products liability
action

under

the

LPLA,

a

plaintiff

must

establish

that

the

defendant is the manufacturer of the product; the claimant’s damage
was proximately caused by a characteristic of the product; this
2

characteristic made the product unreasonably dangerous; and the
claimant’s damage arose from a reasonably anticipated use of the
product. Id. § 9:2800.54(A). A plaintiff may establish a product
was unreasonably dangerous under one of four theories: (1) the
product’s

construction

or

composition

is

defective,

(2)

the

product’s design is defective, (3) the product’s warnings are
inadequate, or (4) by showing a breach of express warranty. Id. §
9:2800.54(B). “. . . [F]or causes of action arising after the
effective date of the LPLA, negligence, strict liability, and
breach

of

express

warranty

are

not

available

as

theories

of

recovery against a manufacturer, independent from the LPLA. Stahl
v. Novartis Pharm., 283 F.3d 254, 260 (5th Cir. 2002).
Accordingly,

the

plaintiff’s

claims

for

negligent

and

intentional infliction of emotion distress, fraud, 1 negligence,
negligent

misrepresentation,

intentional

misrepresentation,

express warranty, implied warranties, and express warranties are
barred.

Additionally,

the

plaintiff’s

claims

for

punitive

or

exemplary damages under Louisiana law are barred. See LA. CIV. CODE
ARTS. 2315.3, 2315.4, 2315.7, 2315.8. The Court now considers
whether the plaintiff alleges claims under the LPLA that are
pleaded sufficiently to survive this motion to dismiss.

1

The Court does not need to address the defendants’ Rule 9 ground
for dismissal because the fraud claim is dismissed as precluded by
the LPLA.
3

II.

Motion to Dismiss Legal Standard

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)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure,
a pleading must contain a "short and plain statement of the claim
showing that the pleader is entitled to relief."

Ashcroft v.

Iqbal, 556 U.S. 662, 678-79 (2009) (citing Fed. R. Civ. P. 8).
"[T]he

pleading

'detailed

factual

standard

Rule

8

allegations,'

announces

but

it

does

demands

not
more

require
than

an

unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at
678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
“‘[T]he central issue [in deciding a motion to dismiss] is
whether,

in

the

light

most

favorable

to

the

plaintiff,

the

complaint states a valid claim for relief.’” Gentilello v. Rege,
627 F.3d 540, 543-44 (5th Cir. 2010) (citation omitted). To survive
a Rule 12 motion dismiss or for judgment on the pleadings, “a
complaint must contain sufficient factual matter, accepted as
true, ‘to state a claim to relief that is plausible on its face.’”
Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting
4

Ashcroft, 556 U.S. 662 (2009)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 129 S. Ct. at 1949. “We do not accept
as true conclusory allegations, unwarranted factual inferences, or
legal conclusions.” Plotkin v. IP Axess Inc., 407 F.3d 690, 696
(5th Cir. 2005) (citation omitted).
III. Viability of LPLA Claims
The plaintiff’s complaint wholly fails to specifically allege
claims arising under the LPLA. Instead, the plaintiff pleads a
host of form-book causes of action, some of which are prohibited
as grounds for recovery under the LPLA. The Court, however, is
obliged to inquire whether the plaintiff, under any of the generic
claims pleaded, successfully brings claims under the LPLA with
sufficiency to survive dismissal under Rule 12(b)(6), no matter
how inartfully done. See Peavy v. WFAA-TV, Inc., 221 F.3d 158, 167
(5th Cir. 2000) (“The form of the complaint is not significant if
it alleges facts upon which relief can be granted, even if it fails
to

categorize

correctly

the

legal

theory

giving

rise

to

the

claim.").
i.

Defect in Construction or Composition

In order to prove a construction or composition defect at
trial, a plaintiff must show that “at the time the product left
the manufacturer’s control, the product deviated in a material way
5

from the manufacturer’s specifications or performance standards
for the product or from otherwise identical products manufactured
by the same manufacturer.” LA. STAT. ANN. § 9:2800.55.
The plaintiff’s complaint states that when Nexium “left the
hands of the manufacturers . . . it was unreasonably dangerous.”
Namely, the complaint states that when Nexium was manufactured it
was defective in “formulation.” The Fifth Circuit has instructed
that

similar

language

in

a

complaint

“provide[s]

sufficient

information to ‘raise a reasonable expectation that the discovery
will reveal evidence’ to support the Manufacturing Defendants’
liability.” Flagg v. Stryker Corp., 647 F. App’x 314, 317 (5th
Cir. 2016) (quoting In re S. Scrap Material Co., 541 F.3d 584, 587
(5th Cir. 2008)). Accordingly, this Court is bound by the Fifth
Circuit’s instruction and finds that any potential claim based on
construction or composition survives this 12(b)(6) motion.
ii.

Defect in Design

To succeed on a design defect claim, the plaintiff must show
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.” LA. REV. STAT. ANN. §
9:2800.56. Further, the plaintiff must show “that the danger and
gravity of that damage outweighed any adverse effects on the
utility of the product and the burden on the manufacturer of

6

adopting the alternative design.” Flagg v. Stryker Corp., 647 F.
App’x at 316; LA. REV. STAT. ANN. § 9:2800.56.
The plaintiff claims that alternatives to PPIs, such as
Nexium, “are and were available that provide the same benefits but
act through a different mechanism.” Specifically, the complaint
suggests that “[o]ne alternative is H2 antagonists, also called H2
blockers, a class of medications that block the action of histamine
at

the

histamine

H2

receptors

of

the

parietal

cells

in

the

stomach.” The defendant is correct in stating that the complaint
does not address whether the danger outweighed the burden on the
manufacturer of adopting an alternative design. However, such an
omission is not so fatal as to give rise to dismissal under
12(b)(6) at this stage in the litigation. See Flagg, 647 F. App’x
at 316 (“Although [the plaintiff] does not plead . . . that the
danger of the damage outweighs the burden of adopting the design,
those very detailed and specific allegations are not required to
plead a plausible claim at this stage . . . .”). Once again,
inartful draftsmanship, while notable, is not on this record fatal.
iii. Failure to Warn
To successfully maintain a failure to warn claim under the
LPLA, the plaintiff must prove that the product has a potentially
damage-causing characteristic and that the manufacturer failed to
use reasonable care to provide an adequate warning about the
characteristic. LA. REV. STAT. ANN. § 9:2800.57(A). For product
7

liability claims involving prescription drugs, Louisiana applies
the “learned intermediary doctrine.” Under this doctrine, “a drug
manufacturer

discharges

its

duty

to

consumers

by

reasonably

informing prescribing physicians of the dangers of harm from a
drug.” Stahl, 283 F.3d at 265. To prevail on a failure to warn
claim under the LPLA, a plaintiff must prove that the manufacturer
failed to warn the treating physician of the dangers associated
with the drug “not otherwise known to the physician,” and that
this failure was both a cause in fact and proximate cause of the
plaintiff’s injury. Willett v. Baxter Int’l, Inc., 929 F.2d 1094,
1098 (5th Cir. 1991).
The plaintiff’s complaint alleges that her treating physician
would

not

have

prescribed

her

Nexium

had

the

physician

been

properly warned of the risks of kidney injuries. In following with
the Fifth Circuit’s quite generous instruction on specificity
required at the pleading stage for an LPLA claim, the Court finds
that the plaintiff’s complaint provides “facial plausibility” for
a failure to warn claim.
iv.

Breach of Express Warranty

To support a claim for breach of express warranty under the
LPLA, an express warranty must have existed to which the product
did not conform. LA. REV. STAT. ANN. § 9:2800.58. The plaintiff must
allege the content of the warranty and explain how the warranty
was not true. Robertson v. AstraZeneca Pharms., No. 15-438, 2015
8

WL 5823326, at *5 (E.D. La. Oct. 6, 2015). The plaintiff must
“specify the warranty in question.” Id.
The plaintiff’s complaint is void of any allegation that
AstraZeneca breached a specific express warranty. The plaintiff
does not plausibly plead a breach of express warranty claim under
the LPLA. The claim of express warranty is dismissed.
IV.
IT IS ORDERED that only the plaintiff’s claims for defect in
design, defect in composition or construction, and failure to warn
under the LPLA survive this motion to dismiss.
IT IS FURTHER ORDERED that all non-LPLA claims are dismissed
with prejudice. 2
IT IS FURTHER ORDERED that the plaintiff’s claim for breach
of express warranty under the LPLA is dismissed.
Accordingly, the defendant’s motion to dismiss is GRANTED in
part and DENIED in part.

New Orleans, Louisiana, March 22, 2017

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

2

The Court reiterates that any claims for negligence, fraud,
implied warranties and any other claims falling outside of the
LPLA are prohibited because of the LPLA’s applicability to this
lawsuit. Demahy v. Schwartz Pharma, Inc., 702 F.3d 177, 182 (5th
Cir. 2012); see also LA. STAT. ANN. § 9:2800.52
9