Guilbeau v. Wyeth Inc, et al

Filing 95

MEMORANDUM RULING granting 93 Motion for Judgment on the Pleadings. Signed by Judge Tucker L Melancon on October 14, 2011. (crt,Bacon, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
Guilbeau

Civil Action 09-1652

versus

Judge Tucker L. Melançon

Wyeth Inc., et al

Magistrate Judge C. Michael Hill

M EMORANDUM R ULING
Before the Court is an unopposed 1 Motion For Judgment On The Pleadings filed by
defendant Teva Pharmaceuticals USA, Inc. (“Teva”) [Rec. Doc. 93] against plaintiff Suzanne
Guilbeau. For the reasons that follow, the motion will be granted.
Background
Plaintiffs Suzanne Guilbeau, Roberta Phillips, Brenda Richardson, Roy Steve, Sr., Brenda
Steve, Jane Etta Stevens, and Eddy Sue Williams on behalf of Dolly Sue Williams filed the Original
Complaint in this action against defendants Wyeth, Inc., Schwarz Pharma, Inc., Barr Pharmeceuticals,
Inc., Actavis, Inc. and Actavis Elizabeth LLC, Pliva, Inc., Teva Pharmaceuticals USA, Inc., Mutual
Pharmaceutical Co., Ranbaxy Pharmaceuticals, Inc., Watson Laboratories, Inc. and Duramed
Pharmaceuticals, Inc. for alleged personal injuries they suffered as a result of being prescribed and
ingesting Reglan, whose generic name is metoclopramide (hereinafter “Reglan/metoclopramide”).2
Plaintiffs asserted claims under the Louisiana Products Liability Act and state law negligence, alleging

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The deadline to file an opposition to Teva’s motion was September 25, 2011. LR. 7.5 W.

The Food and Drug Administration (FDA) approved Reglan in 1980. In 1985, the FDA
required that Reglan’s label be updated to include a warning regarding the risk of developing
tardive dyskinesia. In February 2009, the FDA issued a labeling revision for metoclopramide
meant to warn of the risk of prolonged use, defined as use for more than 12 weeks. Demahy v.
Actavis, Inc., 593 F.3d 428, 430 (5th Cir. 2010).

that defendants tested, developed, manufactured, labeled, marketed, distributed, promoted and/or sold
either directly or indirectly Reglan/metoclopramide and are therefore liable for failure to adequately
test and/or warn about the side effects of long-term use, failure to exercise reasonable care in the design
and/or marketing of the drug, breach of express and implied warranties and intentional and negligent
dissemination of misleading information. R. 1.
On May 28, 2010, the Court granted the pharmaceutical companies’ motions to sever the claims
of the individual plaintiffs into separate causes of action, including the action at bar against Teva. R.
57. On June 11, 2010, plaintiff, Suzanne Guilbeau, filed a Second Amended and Restated
Complaint against Teva. R. 62. Plaintiff asserts that Teva failed to warn adequately of the
alleged risks associated with long-term use of metoclopramide. Id. Teva filed its answer to
the Amended Complaint on June 25, 2010, asserting federal preemption. R. 63.
On January 28, 2011, the Court administratively terminated this action as well as several
other related actions pending the United State Supreme Court rendering decisions in Demahy v.
Actavis, Inc., 593 F.3d 428 (5 th Cir. 2010), cert. granted, and Mensing v. Wyeth, Inc., 588 F.3d
603 (8 th Cir. 2009), cert. granted, which the parties agreed would impact, and could in fact be
dispositive of this action. The Supreme Court issued its decision in PLIVA, Inc. v. Mensing, 131
S. Ct. 2567 (2011) on June 23, 2011, holding that state-law tort claims based on an alleged
failure to warn of the risks of generic medications are preempted by federal law. Id. at 2572.
On July 26, 2011, the Court granted the parties joint motion to reopen this case and ordered Teva
to file its dispositive motion based on the Supreme Court’s ruling. Teva filed this unopposed motion
on September 1, 2011 moving the Court to enter judgment against plaintiff pursuant to Rule 12(c).
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Analysis
A motion brought pursuant to Federal Rule of Civil Procedure 12(c) is designed to
dispose of cases where the material facts are not in dispute and a judgment on the merits can
be rendered by looking to the substance of the pleadings and any judicially noted facts. Hebert
Abstract Co. v. Touchstone Properties, Ltd., 914 F .2d 74, 76 (5th Cir.1990). The court
reviews motions for judgment on the pleadings solely on the basis of the allegations in the
pleadings and accepts all allegations as true. St. Paul Ins. Co. v. AFIA Worldwide Ins. Co.,
937 F.2d 274, 279 (5th Cir. 1991). The standard for deciding a motion for judgment on the
pleadings under Rule 12(c) of the Federal Rules of Civil Procedure is the same as the one for
deciding a motion to dismiss under Rule 12(b)(6). Great Plains Trust Co. V. Morgan Stanley
Dean Witter & Co., 313 F.3d 305, 313 (5th Cir.2002). A motion brought pursuant to Rule
12(c) is designed to dispose of cases where the material facts are not in dispute and a judgment
on the merits can be rendered by looking to the substance of the pleadings and any judicially
noticed facts. Id. at 31. The court must view the pleadings and draw all possible inferences
in favor of the nonmovant, and may not grant judgment unless, on the admitted facts, the
moving party is clearly entitled to judgment. Nunley v. M/V Dauntless Colocotronis, 696 F.2d
1141, 1143 n. 2 (5 th Cir. 1983).
Plaintiff alleges that Teva failed to warn adequately of the alleged risks associated with
long-term use of metoclopramide. R. 60. The Louisiana Products Liability Act (LPLA”)
provides the exclusive remedy for product liability actions in Louisiana. The Act’s exclusivity

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provision “limits a plaintiff’s theories of recovery against a manufacturer of an allegedly
defective product to those established by the LPLA.” Stahl v. Novartis Pharmaceuticals
Corp., 283 F.3d 254, 261 (5 th Cir. 2002). The LPLA recognizes four types of product liability
actions: construction or composition defect, design defect, inadequate warning, and breach of
express warranty. La. Rev. Stat. § 9:2800.54(b). Plaintiffs may not raise any claim beyond
those four. See Stahl, 283 F.3d at 261-262.
While the allegations contained in plaintiff’s Complaint relate only to an allegedly
inadequate warning, the Complaint also purports to allege a claim for defective design:
In addition, and in the alternative, the Reglan/metoclopramide manufactured by
Defendant is unreasonably dangerous in design, in that, at the time the drug left
Defendant’s control, there existed, upon information and belief, an alternative
design for the drug that was capable of preventing Plaintiff’s injuries, and the
likelihood of causing the plaintiff’s injuries and the gravity of that harm
outweighed the burden (if any) on each Defendant in adopting such alternative
design and the adverse effect (if any) on the utility of the drug.
R. 60, ¶ 39. Plaintiff’s factual allegations in her Complaint are related only to her failure to
warn claim. ¶¶ 5-38. She alleges no facts whatsoever to support the defective design claim.
Such “threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements ... do not suffice” to state a viable cause of action. Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555). Nor does a
complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.”
Id.
The Supreme Court’s ruling in PLIVA, 131 S. Ct. 2567, reversed the Fifth and Eight

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Circuit Courts of Appeals, both of which had concluded that claims identical to those in this
case are not preempted. The Court stated:
Here, state law imposed a duty on the Manufacturers to take a certain action,
and federal law barred them from taking that action.... Mensing and Demahy’s
tort claims are pre-empted.
Id. at 2581. Following the Supreme Court’s decision, the Fifth Circuit in Demahy v. Actavis,
Inc., 593 F.3d 428 (5 th Cir. 2010), vacated the district court’s ruling, Demahy v. Wyeth, Inc.,
586 F.Supp. 2d 642 (E.D. La. 2008), which had held that failure-to-warn claims are not
preempted, and remanded the case, ordering that judgment be entered in favor of the generic
manufacturer. The district court considered the Fifth Circuit’s mandate and dismissed all
claims against the generic manufacturer, with prejudice. R. 93-2, Exh. B, Demahy v. Actavis,
Inc., No. 08-3616 (E.D. La. Aug. 30, 2011); see also Mensing v. Wyeth, Inc., 562 F. Supp. 2d
1056, 1058 (D. Minn. 2008) (finding that “Plaintiff has asserted a variety of claims against
[Defendants], [and] at the core of all of Plaintiff’s claims is the basic assertion that
[Defendants] failed to adequately warn about the association between long-term ingestion of
[metoclopramide] and movement disorders” and dismissing the entire complaint as
preempted), rev’d 558 F.3d 603 (8 th Cir. 2009), rev’d, 131 S.Ct. 2567. (June 23, 2011).
Conclusion
As plaintiff’s Complaint supports no cause of action other than a failure to warn under
the Louisiana Products Liability Act, her claim is pre-empted and must be dismissed.
Accordingly, Teva’s Motion for Judgment on the Pleadings will be granted.

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