Peterson et al v. C.R. Bard, Inc. et al

Filing 19

RULING denying as moot 9 Motion to Dismiss Claims Not Recognized by Louisiana Products Liability Act. Signed by Judge James J. Brady on 12/04/2013. (CGP) Modified on 12/4/2013 to edit text (CGP).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CAROL PETERSON,
RICHARD PETERSON
CIVIL ACTION
VERSUS
NO. 13-528-JJB
C.R. BARD, INC., BARD PERIPHERAL
VASCULAR, INC.
RULING ON MOTION TO DISMISS
This matter is before the Court on Defendants’ Motion (doc. 9) to Dismiss Claims Not
Recognized by Louisiana Products Liability Act. Plaintiffs have filed an opposition (doc. 14).
Oral argument is unnecessary. The Court has jurisdiction pursuant to 28 U.S.C. § 1332. For the
reasons stated herein, the Defendants’ motion is DENIED.
Plaintiffs bring this action to recover damages arising from an allegedly defective inferior
vena cava filter (“IVC filter”), a medical device inserted into the body to prevent blood clots
from traveling from the patient’s lower body to their heart and lungs, that was surgically placed
in the body of Plaintiff, Carol Peterson. The allegedly defective IVC filter cannot be removed
from Plaintiff’s body without great risk to her life and therefore remains causing her severe pain
and costing her significant medical expenses.
Defendants move to dismiss all claims asserted outside of the Louisiana Products
Liability Act’s (“LPLA”) exclusive list of cognizable actions, including those sounding in
negligence.1 In opposition, Plaintiffs point to their recently filed First Amended Complaint (doc.

1

The LPLA only recognizes the following causes of action: (1) defect in construction or
composition; (2) defect in design; (3) inadequate warning; and (4) failure to comply with an
express warranty. LA. REV. STAT. ANN. 9:28000.51 et seq.

17), which removes all causes of action not cognizable under the Louisiana Products Liability
Act, maintains its loss of consortium claim, and adds a redhibitory claim.2
After reviewing the First Amended Complaint and finding that there are no asserted
claims precluded by the LPLA, the Court holds that the Defendants’ motion to dismiss is moot.
Accordingly, the Defendants’ Motion to Dismiss (doc. 9) is DENIED on the grounds of
mootness.
Signed in Baton Rouge, Louisiana, on December 4, 2013.





JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

2

A redhibitory claim may coexist with claims brought under the LPLA. See De Atley et al v. Victoria’s Secret
Catalogue, 876 So.2d 112, 115 (La. Ct. App. 4 2004).