Holloway v. Abbvie Inc. et al
Filing
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ORDER granting 3 Motion to Dismiss. Plaintiffs shall have twenty-one (21) days in which to amend the operative complaint to cure any of the deficiencies outlined in this Order. Failure to do so will result in the dismissal of these claims with prejudice. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 2/7/2024. (EDC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TESSA HOLLOWAY
CIVIL ACTION
VERSUS
NO. 23-692-RLB
ABBVIE, INC., ET AL.
CONSENT
ORDER
Before the Court is Defendant’s Motion to Dismiss (R. Doc. 3). It is opposed by Tessa
Holloway (“Plaintiff”). (R. Doc. 5). AbbVie Inc., Allergan, Inc., Allergan Unlimited Company,
and Zeltiq Aesthetics, Inc. (“Defendants”) have replied to Plaintiff’s opposition. (R. Doc. 7).
I.
Background
On June 21, 2023, Plaintiff commenced the captioned action in the 19th Judicial District
Court of the Parish of East Baton Rouge, Louisiana. (R. Doc. 1-2). Plaintiff brings claims under
the Louisiana Products Liability Act (the “LPLA”) against Defendants for their alleged failure to
adequately notify CoolSculpting providers of the allegedly rising risks of CoolSculpting patients
suffering from Paradoxical Hyperplasia (“PH”). (R. Doc. 1-2). In her Petition for Damages (the
“Petition”), Plaintiff makes claims under each of the LPLA liability theories: (1) manufacturing
defect; (2) design defect; (3) failure to warn; and (4) breach of express warranty. Broussard v.
Proctor & Gamble Co., 463 F. Supp. 2d 596, 603 (W.D. La. 2006). (R. Doc. 1-2). The relevant
factual allegations in the Petition, accepted as true for the purposes of resolving Defendants’
Motion to Dismiss, are as follows:
• Zeltiq Aesthetics, Inc., owned by Allergan Unlimited Company, and Allergan Inc.,
which are owned by Abb Vie, Inc., “created, designed, manufactured, labeled,
marketed, advertised, distributed, and sold the CoolSculpting® system medical device”
(the “CSMD”). (R. Doc. 1-2 at ¶ 3).
• The CSMD, “a Class II prescription medical device[,]” uses “Cryolipolysis®, a noninvasive procedure” to freeze and kill fat cells. (R. Doc. 1-2 at ¶¶ 5, 7).
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• “At all material times, Defendants provided documents and forms to CoolSculpting®
providers to use when administering the CoolSculpting® procedure to patients,
including consent forms with vague language about” PH. (R. Doc. 1-2 at ¶ 21).
• PH is “an enlargement and hardening of tissue in the treated area, which is the opposite
effect of the medical device’s advertised purpose[;] the only method of treatment is
invasive surgery.” (R. Doc. 1-2 at ¶ 25).
• “[S]ince 2011, Defendants . . . received reports of consumers developing PH after
CoolSculpting®. . . . Defendants named the condition ‘Paradoxical Hyperplasia’ and in
2012, Defendants created [a] diagnosis criteria for the condition.” (R. Doc. 1-2 at ¶ 29).
• “Defendants estimate[ed] in 2013 the [PH] incident rate [was] 1 in 3,500 patients[;]
however, the number of people developing the condition was increasing [and
Defendants] did not notify CoolSculpting® providers, the public, or the FDA about the
substantial increase in incidence rate.” (R. Doc. 1-2 at ¶ 34).
• “Defendants never notified . . . providers about its post-market discovery of PH or what it
knew about the deforming condition that it received since 2011. Defendants strategically
used an inaccurate 2014 JAMA article in its training materials[.]” (R. Doc. 1-2 at ¶ 36).
• “Defendants manipulated the calculation of the incidence rate and stated inaccurate
incidence rate statistics to CoolSculpting® providers and instructed its employees to use
the words ‘rare’ when referring to PH in their communications with CoolSculpting®
providers, the public, and the FDA.” (R. Doc. 1-2 at ¶ 38).
• “On June 21, 2022, Plaintiff underwent CoolSculpting® treatment at Z Aesthetic
Dermatology [in] Baton Rouge, Louisiana[, and a]fter several follow-up appointments .
. . Plaintiff[ received a] PH diagnosis [from] Dr. Zedlitz[ that] was confirmed per the
Defendants’ ‘Clinical Event Form - Paradoxical Hyperplasia Checklist’ and . . . the
medical team for Defendants[.]” (R. Doc. 1-2 at ¶¶ 44, 45, 46, 47).
• “As a result of Defendants’ systemic failure to adequately warn CoolSculpting®
providers about the danger of the [CSMD], Plaintiff’s CoolSculpting® provider was
not adequately warned of the severity, permanence, and likelihood of PH, the adverse
effect of CoolSculpting®, and the invasive and aggressive surgical treatments required
to manage PH[, so that a]s a result of Defendants’ conduct, Plaintiff was not properly
informed about PH prior to undergoing CoolSculpting®.” (R. Doc. 1-2 at ¶¶ 49, 50).
• “Had Plaintiff been properly informed of the extent of PH’s seriousness, incidence,
permanence, and the true likelihood that she would develop this condition that results in
the exact opposite effect of the device’s advertised purpose, Plaintiff would not have
undergone the CoolSculpting® procedure.” (R. Doc. 1-2 at ¶ 51).
II.
Arguments of the Parties
Defendants argue that because Plaintiff has not adequately alleged any of her LPLA
theories of liability, her case should be dismissed. (R. Docs. 3, 3-1). Regarding Plaintiff’s failure
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to warn claims, Defendants argue that the learned intermediary doctrine1 applies and that the
CSMD manual (the “Manual”)2 sent to providers gives adequate warnings regarding PH. (R.
Docs. 3-1, 3-2). Defendants point out that, in the context of summary judgment, the Eleventh
Circuit has already held that, as a matter of law, the Manual warnings are “objectively ‘accurate,
clear, and unambiguous’ to warn medical professionals[.]” Cates v. Zeltiq Aesthetics, Inc., 73 F.
4th 1342, 2023 WL 4671283, at *4 (11th Cir. 2023) (internal citations omitted). (R. Doc. 3-1).
The Manual states that PH is a “Rare Adverse Event” and it is described as “[v]isibly enlarged
tissue volume within the treatment area, which may develop two or five months after treatment.”
(R. Doc. 3-2). The Manual also states that “[s]urgical intervention may be required” if PH
occurs, notes that six PH cases were reported out of 4,792 studies, and cites three scholarly
articles addressing PH occurring after Cryolipolysis. (R. Doc. 3-2).
Plaintiff agrees with Defendants that the learned intermediary doctrine applies but argues
it would be premature to dismiss the case based on Cates when “there has been no discovery
[revealing what] documents and verbal assurances were relayed to Dr. Zedlitz[,]” Plaintiff’s
provider. (R. Doc. 5). Plaintiff primarily relies on McNeil v. Wyeth, 462 F. 3d 364, 368 (5th Cir.
2006) (Fifth Circuit applied the Texas rule of sending adequacy questions to the jury when a
drug warning noted that a condition was a risk but failed to note that the risk was higher if the
drug was used long-term.), and Brown v. Glaxo, Inc., 1999-1531 (La. App. 1 Cir. 11/15/00), 790
So. 2d 35, 40-41, writ denied, 2000-3457 (La. 2/9/01), 785 So. 2d 827, and writ denied, 2001-
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Marks v. OHMEDA, Inc., 2003-1446 (La. App. 3 Cir. 3/31/04), 871 So. 2d 1148, 1157, writ denied, 2004-1653
(La. 10/8/04), 883 So. 2d 1019, and writ denied, 2004-1617 (La. 10/8/04), 883 So. 2d 1020 (citation omitted) (“[A]
drug [or device] manufacturer has a duty to warn the prescribing doctor, rather than the patient, of . . . risks[.]”).
This Court considered the Manual in its review of the facts because documents “a defendant attaches to a motion to
dismiss are considered part of the pleadings if they are referred to in the plaintiff’s complaint and are central to her
claim[.]’” Collins v. Morgan Stanley Dean Witter, 224 F. 3d 496, 498-99 (5th Cir. 2000) (Citation omitted); See
Maloney Gaming Mgmt., L.L.C. v. St. Tammany Par., 456 F. App’x 336, 340-41 (5th Cir. 2011).
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0035 (La. 2/9/01), 785 So. 2d 832 (court concluded that although an injection’s warnings were
sufficient, the manufacturer’s agent’s representations to a doctor about his wife’s symptoms
“interdicted or superseded the written warning to the doctor.”).
Regarding Plaintiff’s manufacturing defect, design defect, and breach of express warranty
claims, Defendants argue that Plaintiff has stated no facts regarding any defects or warranties,
while Plaintiff asserts that she “included in her complaint allegations of design defect,
manufacturing defect[,] and breach of warranty.” (R. Docs. 3-1, 5).
Defendants also assert that because “Zeltiq [Aesthetics, Inc.,] a subsidiary of AbbVie
Inc., is the manufacturer of the [CSMD,] AbbVie Inc., Allergan, Inc., and Allergan Unlimited
Company[, which] have not designed or manufactured the [CSMD,] are not proper defendants in
this case.” (R. Doc. 3-1). Plaintiff does not address this issue.
III.
Law and Analysis
A.
Legal Standard
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead “sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citation omitted). The complaint must go beyond labels, legal
conclusions, or formulaic recitations of the elements of a cause of action, establishing more than
a “sheer possibility” that the plaintiff’s claim is true. Id. at 678. A claim is only facially plausible
if a plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id. “In other words, the face of the complaint must contain
enough factual matter to raise a reasonable expectation that discovery will reveal relevant
evidence of each element of the plaintiff’s claim.” Pellegrin v. C.R. Bard, No. CV 17-12473,
2018 WL 3046570, at *2 (E.D. La. June 20, 2018) (citation omitted).
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When reviewing a motion to dismiss, courts “must consider the complaint in its entirety,
as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to
dismiss, in particular, documents incorporated into the complaint by reference, and matters of
which a court may take judicial notice.” Funk v. Stryker Corp., 631 F. 3d 777, 783 (5th Cir.
2011) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499,
168 L. Ed. 2d 179 (2007) (citations omitted)). A court must accept all well-pleaded facts as true
and draw all reasonable inferences in favor of the plaintiff. See Lormand v. U.S. Unwired, Inc.,
565 F. 3d 228, 232 (5th Cir. 2009).
B.
Legal Analysis
i.
Implied Preemption
This Court must first consider whether Plaintiff’s state claims rely on state laws
preempted by the FDA Act pursuant to 21 U.S.C. § 360(k). In the Fifth Circuit, state laws
regarding Class II devices are subject to preemption under the Medical Device Amendments if
specific FDA regulations apply to the devices at issue. 21 U.S.C. § 360(k); See Moore v.
Kimberly–Clark Corp., 867 F.2d 243 (5th Cir.1989). A state law is preempted by an FDA
regulation if “the state law at issue creates a requirement that is related to the device’s safety or
effectiveness and is ‘different from or in addition to’ the federal requirement.” Hughes v. Bos.
Sci. Corp., 631 F. 3d 762, 768 (5th Cir. 2011) (citation omitted).
The FDA Act section titled Contact Cooling System for Aesthetic Use applies to the
CSMD. 21 C.F.R. § 878.4340. This section references the FDA’s Guidance for Industry and
Food and Drug Administration Staff; Class II Special Controls Guidance Document: Contact
Cooling System for Aesthetic Use3 which states that labeling for contact cooling systems must
This Court takes judicial notice of this document. Fed. R. Evid. 201(b) (“A judicially noticed fact must be one not
subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court
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comply with 21 C.F.R. § 801.109(d). 21 C.F.R. § 801.109(d) states that a prescription-controlled
device shall be exempt from a layman-type warning if its labeling includes “any relevant
hazards, contraindications, side effects, and precautions” the prescriber needs to know about to
use the device safely. 21 C.F.R. § 801.109. All parties agree that Louisiana’s state learned
intermediary doctrine applies such that “Defendants [only] owed a duty to make adequate
warnings to [her doctor].” (R. Docs. 3, 5, 7). As the Louisiana learned intermediary doctrine is
no “different from” 21 C.F.R. § 801.109(d) and does not result in an “addition to the federal
requirement[,]” a finding of preemption is unnecessary. Hughes, 631 F.3d at 768.
ii.
Plaintiff’s Failure to Warn Claim Must Be Dismissed
“Pursuant to the Louisiana Products Liability Act, a plaintiff asserting a failure-to-warn
claim must prove: (1) a manufacturer’s failure to adequately warn the prescribing physician of a
risk associated with the product that the physician did not otherwise know about, and (2) that the
failure to warn was the cause in fact and the proximate, or legal, cause of the plaintiff's injury.”
In re Taxotere (Docetaxel) Prod. Liab. Litig., 994 F. 3d 704, 708 (5th Cir. 2021); See Stahl v.
Novartis Pharms. Corp., 283 F. 3d 254, 267 (5th Cir. 2002); See also Willett v. Baxter Int’l, Inc.,
929 F. 2d 1094, 1098 (5th Cir. 1991); Pellegrin v. C.R. Bard, No. CV 17-12473, 2018 WL
3046570, at *4 (E.D. La. June 20, 2018). To prove causation, a “plaintiff must show that a proper
warning would have changed the decision of the [prescribing] physician, i.e. that but for the
inadequate warning, the [prescribing] physician would not have used or prescribed the product.”
Willett, 929 F.2d at 1099. Thus, to survive dismissal, a pleading must provide enough facts to
support a showing that a physician may not have prescribed a certain procedure had the
or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned.”); Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011) (citing Norris v. Hearst Trust, 500 F.3d 454,
461 n. 9 (5th Cir.2007) (“[T]he district court took appropriate judicial notice of publicly-available documents and
transcripts produced by the FDA, which were matters of public record directly relevant to the issue at hand.”).
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physician been properly warned. Pellegrin, 2018 WL 3046570, at *4; Flagg v. Stryker Corp.,
647 F. App’x 314, 316 (5th Cir. 2016) (Fifth Circuit affirmed a dismissal of a failure to warn
claim when plaintiff included no “allegations about whether the [d]efendants failed to warn
[plaintiff]’s doctor of the risk involved and whether [plaintiff]’s doctor would have used the
implants if given such a warning, as required under Louisiana law.”).
Defendants ask this Court to rely on Cates to hold that Plaintiff’s failure to warn claim
must be dismissed because the Manual adequately warns prescribers of PH risks. (R. Doc. 3-1).
In Cates, the Eleventh Circuit held that Defendants’ warnings were legally adequate, irrespective
of the prescribing doctor’s opinion, because they clearly and unambiguously noted the ailment
plaintiff suffered. Cates, 73 F. 4th at 1349-50. The Cates decision, while persuasive, is not
controlling or appropriately applied at this stage in the proceeding. To begin, the court in Cates
noted that its determination of the sufficiency of the warning was guided by the Florida Supreme
Court’s determination that notification of the possible symptoms at issue were alone sufficient
without any greater specificity. Id. at 1348. In addition, Cates was decided on summary
judgment, and the basis for its decision went beyond the warning itself. Specifically, the court
considered both the warning regarding “potential consequences in both its CoolSculpting user
manual and its training session materials.” Id. (emphasis added). The opinion described a
training presentation specifically addressing PH and the possibility that “surgical intervention
may be required.” Id.
Without the benefit of the full scope of information directed to the providers here, as well
as why that information was sufficient under Louisiana law to inform a prescribing provider of
the risks involved, this Court cannot yet make a similar determination as a matter of law. See
Kampmann v. Mason, 05-423 (La. App. 5 Cir. 1/17/06), 921 So. 2d 1093, 1096 (A defendant’s
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failure to produce “medical testimony or affidavits from the treating physician or any other
physician” that the warning was adequate defeated its motion for summary judgment.); see also
Stahl, 283 F. 3d at 267 (“[A] prescription drug warning is not adequate as a matter of law simply
because the warning label contains a clear and unambiguous reference to the adverse reaction
suffered by the plaintiff. For summary adjudication of an inadequate warning claim to be
appropriate, the plaintiff’s prescribing physician must also unequivocally testify that the warning
was adequate to inform him or her of the risks involved in prescribing the drug. The doctor’s
testimony provides added assurance that the language in the package insert was worded strongly
enough to adequately inform him or her of the actual level of risk involved.”); Brocato v. DePuy
Orthopaedics, Inc., No. CIV.A. 14-2607, 2015 WL 854150, at *6 (E.D. La. Feb. 25, 2015)
(“[T]he Fifth Circuit has interpreted Louisiana [law] to condone summary adjudication only [if]
the defendant points both to an unambiguous mention of the subject risk and testimony of the
treating physician establishing his understanding of such risk based on the warning.”).
While this Court finds Plaintiff has pleaded enough facts to show that Defendants failed
to adequately warn Plaintiff’s physician, Plaintiff’s pleading still falls short. While Plaintiff has
alleged (at the pleading stage) that the warning was inadequate, Plaintiff has failed to allege
whether her treating physician would have prescribed the CSMD had the physician been
adequately warned. Consequently, Plaintiff’s failure to warn claim must be dismissed. Brooks v.
Amgen, Inc., No. 18-CV-00657-BAJ-EWD, 2019 WL 507491, at *4 (M.D. La. Feb. 8, 2019) (A
motion to dismiss was granted when “[n]o allegation [wa]s made as to whether the treating
physician would have prescribed [the medicine] or not.”); Dubroc v. Bristol-Myers Squibb, No.
CV 18-833-SDD-RLB, 2019 WL 3756469, at *5 (M.D. La. Aug. 8, 2019) (A plaintiff “failed to
state a cognizable failure to warn claim [when she] failed to allege anything regarding
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[defendant’s] warning to her physician, or that he would have treated her differently had he
received a warning.”); Huffman v. Squibb, No. CV 16-3714, 2016 WL 6024532, at *2 (E.D. La.
Oct. 14, 2016) (A failure to warn claims was dismissed when a plaintiff failed to allege his
“doctor would not have prescribed [a medicine] had [he] received an adequate warning[.]”).
iii.
Plaintiff’s Manufacturing Defect Claim Must Be Dismissed
LPLA manufacturing defect claims require more than conclusory allegations and cannot
survive motions to dismiss without allegations of how the product is defective and how the
defect caused a plaintiff’s injuries. See, e.g., Stahl, 283 F. 3d at 263 (“[S]ummary judgment is
appropriate because Stahl has not provided any evidence suggesting that the particular pills he
received deviated in any way from the manufacturer’s production standards or from the
manufacturer’s otherwise identical products.”); Aucoin v. Amneal Pharm., LLC, No. 11-1275,
2012 WL 2990697, at *10 (E.D. La. July 20, 2012) (A plaintiff’s manufacturing defect claim
was dismissed when plaintiff did not allege that the product deviated from production standards
or identical products.); Watson v. Bayer Healthcare Pharm., Inc., No. 13-212, 2013 WL
1558328, at *4 (E.D. La. Apr. 11, 2013) (The court dismissed plaintiff’s manufacturing defect
claim when plaintiff did not allege how the product deviated from production standards or how
the defect caused her alleged injuries); Kennedy v. Pfizer, Inc., No. 13-3132, 2014 WL 4093065,
at *3 (W.D. La. Aug. 15, 2014) (same). To establish a manufacturing defect claim, a plaintiff
must show that, “at the time the product left its manufacturer’s control, the product deviated in a
material way from the manufacturer’s specifications or performance standards for the product or
from otherwise identical products manufactured by the same manufacturer.” La. R. S. §
9:2800.55; See Stahl, 283 F. 3d at 262-63.
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The Petition lacks any allegations regarding how the CSMD deviated from Defendants’
specifications, performance standards, or identical products. (R. Doc. 1-2). Instead, Plaintiff’s
manufacturing defect claim rests on one conclusory allegation stating that the CSMD was
“unreasonably dangerous in construction or composition[.]” (R. Doc. 1-2 at ¶ 57). This is not
enough to establish a manufacturing defect claim under the LPLA.
iv.
Plaintiff’s Design Defect Claim Must Be Dismissed
To establish the elements for a design defect claim, a plaintiff must allege (i) that there
“existed an alternative design for the product that was capable of preventing the claimant’s
damage[ and (ii) that t]he likelihood that the product’s design would cause the claimant’s
damage and the gravity of that damage outweighed the burden on the manufacturer of adopting
such alternative design and the adverse effect, if any, of such alternative design on the utility of
the product.” La. R. S. § 9:2800.56.
Plaintiff fails to establish the above elements as she provides no allegations regarding
what aspect of the CSMD product design caused Plaintiff’s PH, how the alleged defect
contributed to her PH, or what other alternative designs existed at the time of her procedure. See
Watson, 2013 WL 1558328, at *4-5 (The court dismissed a complaint that failed to allege how a
design was defective and what aspect of the defective design caused the injuries.). (R. Doc. 1-2).
v.
Plaintiff’s Breach of Express Warranty Claim Must Be Dismissed
“Under the LPLA, a manufacturer of a product that is unreasonably dangerous because it
does not conform to an express warranty about the product is liable for damages caused by that
non-conformity.” Pellegrin, 2018 WL 3046570, at *5 (citing La. R. S. § 9:2800.58). “To
establish a breach of express warranty claim, a plaintiff must show that (1) there was an express
warranty made by the manufacturer about the product; (2) the express warranty induced the
plaintiff to use the product; and (3) the plaintiff’s damage was proximately caused because the
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express warranty was untrue.” Id. (citing La. R. S. § 9:2800.58; Caboni v. Gen. Motors Corp.,
278 F. 3d 448, 452 (5th Cir. 2002)). The LPLA defines “express warranty” as “a representation,
statement of alleged fact or promise about a product . . . that represents, affirms or promises that
the product . . . possesses specified characteristics or qualities or will meet a specified level of
performance.” La. R. S. § 9:2800.53(6).
Plaintiff does not directly state what warranty Defendants guaranteed. At best, Plaintiff
implies that Defendants warranted that the CSMD was safe and would reduce fat, but this is not
enough to support a breach of warranty claim. See Flournoy v. Johnson & Johnson, No. 15-5000,
2016 WL 6474142, at *3 (E.D. La. Nov. 2, 2016) (A plaintiff’s breach of warranty claim was
dismissed for failing to sufficiently “identify the contents of any warranty[.]”); see also
Robertson v. AstraZeneca Pharm., LP, No. 15-438, 2015 WL 5823326, at *5 (E.D. La. Oct. 6,
2015) (A plaintiff’s allegation that defendant made representations in “materials presented to the
FDA” was not specific enough to state a claim for breach of warranty.); Doe v. AstraZeneca
Pharm., LP, No. 15-438, 2015 WL 4661814, at *4 (E.D. La. Aug. 5, 2015) (A plaintiff’s
allegation that defendant represented to the market that defendant’s product was “safe” and
“effective” did not satisfy pleading standard.). Plaintiff has therefore failed to satisfy the
pleading standard for her breach of express warranty claim.
vi.
AbbVie Inc., Allergan, Inc., and Allergan Unlimited Company
The issue of whether AbbVie Inc., Allergan, Inc., and Allergan Unlimited Company are
proper defendants in this case has not been briefed beyond a footnote in Defendants’ Motion to
Dismiss. (R. Doc. 3). Accordingly, this Court will not rule on the dispute at this time.
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IV.
Conclusion
As set forth above, the pleadings in this matter as insufficient and are subject to
dismissal. Plaintiff, however, should be given leave to amend under the circumstances. “[A]
court ordinarily should not dismiss the complaint except after affording every opportunity to the
plaintiff to state a claim upon which relief might be granted.” Byrd v. Bates, 220 F.2d 480, 482
(5th Cir. 1955). The Fifth Circuit has further stated:
In view of the consequences of dismissal on the complaint alone,
and the pull to decide cases on the merits rather than on the
sufficiency of pleadings, district courts often afford plaintiffs at
least one opportunity to cure pleading deficiencies before
dismissing a case, unless it is clear that the defects are incurable or
the plaintiffs advise the court that they are unwilling or unable to
amend in a manner that will avoid dismissal.
Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002).
See also 5B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d
ed. 2016); Fetty v. Louisiana State Bd. of Private Sec. Examiners, 611 F. Supp. 3d 230, 250
(M.D. La. Jan. 31, 2020) (deGravelles, J.) (“because Plaintiffs did not amend their complaint in
response to a ruling by this Court, and because of the above ‘wise judicial practice,’ the Court
will grant Plaintiffs one final opportunity to amend their complaint to state viable claims.”)
(citing JMCB, LLC v. Board of Commerce and Industry, et al., 336 F. Supp. 3d 620, 641–42
(M.D. La. Aug. 23, 2018)); Murphy v. Bos. Sci. Corp., No. 18-31, 2018 WL 6046178, at *1
(M.D. La. Nov. 19, 2018) (deGravelles, J.) (same).
Based on the foregoing,
IT IS ORDERED that Defendants’ Motion to Dismiss (R. Doc. 3) is GRANTED.
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IT IS FURTHER ORDERED that Plaintiffs shall have twenty-one (21) days in which
to amend the operative complaint to cure any of the deficiencies outlined in this Order. Failure to
do so will result in the dismissal of these claims with prejudice.
Signed in Baton Rouge, Louisiana, on February 7, 2024.
S
RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE
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