Babineaux v. Janssen Pharmaceuticals Inc et al

Filing 30

ORDER denying as moot 12 Motion to Dismiss. Signed by Magistrate Judge Carol B Whitehurst on 2/7/2017. (crt,Chicola, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION

Babineaux

Civil Action No. 16-00982

versus

Judge Rebecca F. Doherty

Janssen Pharmaceuticals, Inc, et al

Magistrate Judge Carol B. Whitehurst

ORDER
Before the Court is an unopposed Motion To Dismiss filed by Defendant
Vintage Pharmaceuticals, LLC (incorrectly named in the Complaint as Endo
Pharmaceuticals Inc.)1 (hereinafter referred to as “Vintage”) [Rec. Doc. 12]. Oral
argument is not necessary. Based on the record of this action, the Court will deny
Vintage’s Motion To Dismiss as moot.
Shirley Babineaux, individually and on behalf of her minor child C.H.
("Plaintiffs”), bring this product liability suit alleging personal injuries from C.H.’s
use of Risperdal® (risperidone), Risperdal Consta® (a long-acting injectable form of

1

The record indicates that Endo Pharmaceuticals Inc was removed as a party-defendant
on December 9, 2016.

risperidone), Invega® (paliperidone), and / or Risperidone.2 R. 1, ¶ 6. Plaintiffs name
as Defendants Vintage, Janssen Pharmaceuticals, Inc., Janssen Research &
Development LLC, Patriot Pharmaceuticals, LLC and Johnson & Johnson.3 They
further allege the same causes of action against all Defendants: (1) Construction or
Composition Defect Pursuant to La. R.S. 9:2800.55; (2) Design Defect Pursuant to
La. R.S. 9:2800.56; (3) Inadequate Warning (La. R.S. 9:2800.57); (4) Breach of
Express Warranty (La. R.S. 9:2800.58); (5) Negligence; (6) Redhibition; (7) Breach
of Warranty of Fitness for Ordinary Use; (8) Breach of Implied Warranty of
Merchantability and Fitness; (9) Strict Liability; and (10) Violations of Federal
Regulations. R. 1.
Vintage filed this Motion on December 12, 2016, asserting that Plaintiffs’
claims should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim for any viable theory of recovery against it. Specifically,
Vintage asserts that Plaintiffs’ state law tort claims against it are preempted by federal
law; claims under the Louisiana Products Liability Act (“LPLA”) fail to allege
sufficient facts to state a claim for relief; claim under the LPLA for “Violation of

2

The named drugs are anti-psychotic prescription drugs used in the treatment of
schizophrenia and bipolar mania. R. 12-1.
3

Brenn Distribution Inc., originally named as a defendant, was voluntarily dismissed by
Plaintiff on October 14, 2016. R. 6, 7.
2

Federal Regulation” is barred by the exclusivity provisions of La.R.S. § 9:2800.52;
and, claim for Redhibition fails because the nature of the alleged “defect” is open and
obvious. R. 12-1.
On January 10, 2017, Vintage filed a Supplemental Memorandum in support
of this Motion. R. 21. In its Supplement Memorandum Vintage represented to the
Court that it previously filed a motion identical to the Motion at bar in the case of
Richard Glenn Pramann v. Endo Pharmaceuticals, Inc., et al, Case No. 2:16-cv12413, in which Judge Lance M. Africk granted the motion dismissing all of the
plaintiff’s claims. R. 21-1, Exh. A.
On January 13, 2017, Plaintiff filed a Motion For Leave To File First
Supplemental And Amending Complaint.4 R. 22. In the Amended Complaint Plaintiff
stated that she “wishes to remove, any and all claims, against the defendant Vintage.”
R. 27. Thereafter, on January 24, 2017, counsel for Plaintiff filed a Response To
Motion To Dismiss Filed By Vintage stating that “he has no opposition” to Vintage’s
Motion and “has filed a Supplemental Amending Complaint removing any and all
claims for damages against Vintage.” R. 26.
As Plaintiffs’ causes of action against Vintage have been dismissed,
IT IS ORDERED that the Motion To Dismiss filed by Defendant Vintage

4

On February 6, 2017, the undersigned granted Plaintiff’s motion for leave after the
notice of deficiency was resolved. R. 24, R. 27.

Pharmaceuticals, LLC [Rec. Doc. 12] is DENIED AS MOOT.
Thus done and signed in Lafayette, Louisiana on this 7th day of February,
2017.

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