Doucette et al v. GlaxoSmithKline LLC

Filing 11

ORDER AND REASONS: IT IS ORDERED that 8 Motion to Dismiss for Failure to State a Claim is GRANTED IN PART AND DENIED IN PART as explained in said document. Signed by Judge Jay C. Zainey on 9/20/2017. (ajn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ZENOBIA AND ELTON DOUCETTE

CIVIL ACTION

VERSUS

NO: 17-6500

GLAXOSMITHKLINE, LLC

SECTION: "A" (5)

ORDER AND REASONS
The following motion is before the Court: Motion to Dismiss Pursuant to
Federal Rule of Civil Procedure 12(b)(6) (Rec. Doc. 8) filed by Defendant,
GlaxoSmithKline, LLC. Plaintiffs, Zenobia Doucette and Elton Doucette, oppose the
motion. The motion, noticed for submission on September 20, 2017, is before the Court
on the briefs without oral argument.
In February 2016, plaintiff Zenobia Doucette was prescribed mupirocin (brand
name Bactroban®). (Rec. Doc. 1, Comp. ¶ 17). She filled the prescription. On August 5,
2017, Ms. Doucette received a letter informing her that the drug was being recalled due
to contamination during the manufacturing process. (Id. ¶ 18). Ms. Doucette claims
significant personal injuries in light of the contaminated drug. Mr. Doucette claims
damages for loss of consortium. (Id. ¶ 29).
Via the instant motion Defendant GlaxoSmithKline, the drug’s manufacturer,
moves to dismiss three of Plaintiffs’ four theories of liability under the Louisiana
Products Liability Act (“LPLA”), La. R.S. § 9:2800.51, et seq. Defendant contends that
the factual allegations do not support a claim for liability under any LPLA theory other

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than for defect in construction or composition.
Defendant also moves to dismiss any claims based on non-LPLA grounds (with
the exception of redhibition). Defendant argues that the LPLA provides the exclusive
theories of liability vis à vis a manufacturer.
In the context of a motion to dismiss the Court must accept all factual allegations
in the complaint as true and draw all reasonable inferences in the plaintiff=s favor.
Lormand v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009) (citing Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308 (2007); Scheuer v. Rhodes, 416 U.S. 232,
236 (1974); Lovick v. Ritemoney, Ltd., 378 F.3d 433, 437 (5th Cir. 2004)). However, the
foregoing tenet is inapplicable to legal conclusions. Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009). Thread-bare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice. Id. (citing Bell Atlantic Corp. v. Twombly,
550, U.S. 544, 555 (2007)).
The central issue in a Rule 12(b)(6) 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, 544 (5th Cir. 2010) (quoting Doe v. MySpace, Inc., 528 F.3d 413,
418 (5th Cir. 2008)). To avoid dismissal, a plaintiff must plead sufficient facts to Astate a
claim for relief that is plausible on its face.@ Id. (quoting Iqbal, 129 S. Ct. at 1949). AA
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.@ Id. The Court does not accept as true Aconclusory allegations, unwarranted
factual inferences, or legal conclusions.@ Id. (quoting Plotkin v. IP Axess, Inc., 407 F.3d
690, 696 (5th Cir. 2005)). Legal conclusions must be supported by factual allegations.
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Id. (quoting Iqbal, 129 S. Ct. at 1950).
In Louisiana, the LPLA limits a plaintiff’s theories of recovery against a
manufacturer of an allegedly defective product to those established by the LPLA. Stahl
v. Novartis Pharm. Corp., 283 F.3d 254, 261-62 (5th Cir. 2002) (citing La. R.S. §
9:2800.52). Therefore, Defendant’s motion will be GRANTED as to any claims based on
non-LPLA legal theories, with the exception of res ipsa loquitur, which in some limited
circumstances may apply to LPLA claims.
Defendant’s motion will be DENIED, however, as to any LPLA theories of
recovery. Although the Court agrees that the factual allegations in the Complaint
strongly suggest that the defect in construction/composition theory of the LPLA is most
applicable in this case, the Court is persuaded that Defendant’s challenges to the
viability of any other LPLA theories would be best handled via a well-supported motion
for summary judgment once discovery is complete.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion to Dismiss Pursuant to Federal Rule of Civil
Procedure 12(b)(6) (Rec. Doc. 8) filed by Defendant, GlaxoSmithKline, LLC is
GRANTED IN PART AND DENIED IN PART as explained above.
September 20, 2017

JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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