Parris v. Eli Lilly and Company et al (TV1)

Filing 15

MEMORANDUM AND OPINION as set forth in following order. Signed by Chief District Judge Thomas A Varlan on 9/20/13. (ABF) Modified on 9/20/2013 to indicate c/m to pro se plaintiff (ABF).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
LEANNE PARRIS, individually and on
behalf of minor son J.T.,

)
)
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Plaintiffs,
)
)
v.
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)
ELI LILLY AND COMPANY,
)
PAR PHARMACEUTICAL COMPANIES, INC. )
and PAR PHARMACEUTICAL INC.,
)
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Defendants.
)

No.: 3:12-CV-572
(VARLAN/SHIRLEY)

MEMORANDUM OPINION
This civil action is before the Court on Defendants Par Pharmaceutical
Companies, Inc., and Par Pharmaceutical Inc.’s Motion for Judgment on the Pleadings
[Doc. 11]. Pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, defendants Par
Pharmaceutical Companies, Inc. and Par Pharmaceutical Inc. (together, “Par
Pharmaceutical” or “defendants”) move the Court to dismiss all of plaintiffs’ claims
against them because (1) plaintiff fails to state a claim upon which relief may be granted
and (2) plaintiff’s surviving claim is preempted by federal law. No response has been
filed and the time for doing so has passed. See E.D. Tenn. L.R. 7.1, 7.2. After careful
consideration of the motion and the relevant law, the Court finds the motion well taken
and will grant the motion.

I.

Background
Plaintiff Leanne Parris (“Parris”) was prescribed fluoxetine, a selective serotonin

reuptake inhibitor, by her treating physician while she was pregnant [Doc. 1-2 ¶ 15].
Parris was dispensed and ingested generic fluoxetine, which was allegedly manufactured
and distributed by defendants, as prescribed by her physician, including during her
pregnancy [See id. ¶¶ 9, 10, 15]. On an unspecified date, Parris gave birth prematurely to
her son, J.T., who allegedly suffered from certain congenital defects, including patent
ductus arteriosus and cerebral palsy [Id. ¶ 17]. It is alleged that J.T.’s congenital defects
were caused by Parris’s ingestion of generic fluoxetine during her pregnancy [Id.].
Parris, proceeding individually and on behalf of her son, commenced this action
pro se on or about September 6, 2012, by filing a complaint in the Circuit Court for Knox
County, Tennessee. Defendants removed this action to the Eastern District of Tennessee
on November 1, 2012 [See Doc. No. 1].
In a previous order, the Court dismissed the claims against defendant Eli Lilly and
Company for failure to state a claim [Doc. 10]. The Court also dismissed the claims
Parris asserted on behalf of J.T. because Parris could not proceed pro se on his behalf
[Id.].
II.

Standard of Review
A motion for judgment on the pleadings under Federal Rule of Civil Procedure

12(c) is subject to the same standard of review as a motion brought under Federal Rule of
Civil Procedure 12(b)(6). Penny/Ohlmann/Nieman, Inc. v. Miami Valley Pension Corp.,
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399 F.3d 692, 697 (6th Cir. 2005). In reviewing either a motion to dismiss under Rule
12(b)(6) or a motion for judgment on the pleadings under Rule 12(c), the Court “must
construe the complaint in a light most favorable to plaintiffs, accept all well-pled factual
allegations as true, and determine whether plaintiffs undoubtedly can prove no set of facts
in support of those allegations that would entitle them relief.” Bishop v. Lucent Techs.,
Inc., 520 F.3d 516, 519 (6th Cir. 2008) (citing Harbin-Bey v. Rutter, 420 F.3d 571, 575
(6th Cir. 2005)).
Federal Rule of Civil Procedure 8(a)(2) sets out a liberal pleading standard, Smith
v. City of Salem, 378 F.3d 566, 576 n.1 (6th Cir. 2004), requiring only “‘a short and plain
statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
[opposing party] fair notice of what the . . . claim is and the grounds upon which it
rests,’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)). Detailed factual allegations are not required, but a party’s
“obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than
labels and conclusions.” Twombly, 550 U.S. at 555. “[A] formulaic recitation of the
elements of a cause of action will not do,” nor will “an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In deciding a Rule 12(b)(6) motion to dismiss, or a motion for judgment on the
pleadings, a court must construe the complaint in the light most favorable to the plaintiff,
accept all factual allegations as true, draw all reasonable inferences in favor of the
plaintiff, and determine whether the complaint contains “enough facts to state a claim to
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relief that is plausible on its face.” Twombly, 550 U.S. at 570; Directv, Inc. v. Treesh,
487 F.3d 471, 476 (6th Cir. 2007) (citation omitted). “A 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.” Iqbal, 556 U.S. at 678.
“Determining whether a complaint states a plausible claim for relief will [ultimately] . . .
be a context-specific task that requires th[is Court] to draw on its judicial experience and
common sense.” Id. at 679.
III.

Analysis
Plaintiff alleges that defendants distributed the fluoxetine at issue [Doc. 1-2 ¶¶ 9,

10]. She asserts the following causes of action against defendants: failure to warn,
negligence, and loss of consortium [Id.].
Regarding the loss of consortium claim, the Seventh Cause of Action states:
As a result of Defendants’ aforementioned conduct, which was the
direct and proximate cause of the injuries sustained by Plaintiff
[J.T.], as described herein, Plaintiff [J.T.] has been unable to perform
work, services and duties as a child and will be unable to do the
same in the future. Plaintiff LEANNE PARRIS has been deprived
of, and will continue to be deprived of, the work, services, duties,
and companionship of her son, Plaintiff [J.T.].
[Doc. 1-2 ¶ 94]. Defendants assert that this is a loss of filial consortium claim, and that it
must be dismissed because it fails to state a claim under Tennessee law [Doc. 12]. The
Court agrees with defendants.

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While Tennessee law provides for a loss of consortium claim with respect to
spouses in personal injury cases, Tenn. Code Ann. § 21-1-106, it does not appear to
provide a filial consortium claim in personal injury cases, and the Supreme Court of
Tennessee has “decline[d] to create a common law cause of action” not provided for in
statute, noting it is the function of the legislature to do so, Taylor v. Beard, 104 S.W.3d
507, 510–11 (Tenn. 2003). Moreover, even if such a claim were recognized, the claim is
a derivative claim, and all of J.T.’s claims were dismissed. See Williams v. United
States, 754 F. Supp. 2d 942, 955 (W.D. Tenn. 2010) (dismissing loss of consortium claim
because injured spouse’s claim was dismissed); DeJesus v. Geren, No. 3:08cv0043, 2008
WL 2558009, at *20 (M.D. Tenn. June 23, 2008) (same); Wentz v. Best W. Int’l, Inc., No.
3:05-cv-368, 2007 WL 869620, at *3–4 (E.D. Tenn. Mar. 20, 2007) (same); Hunley v.
Silver Furniture Mfg. Co., 38 S.W.2d 555, 577–58 (Tenn. 2001) (loss of consortium is
derivative claim).
Plaintiff brought the failure to warn and negligence claims on behalf of J.T., but as
noted, the Court dismissed those claims [See Doc. 10]. Nevertheless, even assuming
Parris personally seeks to assert these claims against defendants,1 the Court finds recent
Supreme Court precedent dictates dismissal of the claims. In PLIVA, Inc. v. Mensing,
131 S. Ct. 2567, 2572 (2011), the Supreme Court held that federal law preempts state

1

Pro se litigants “are held to less stringent standards than . . . lawyers in the sense that a
pro se complaint will be liberally construed in determining whether it fails to state a claim upon
which relief could be granted.” Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991). See also
Estelle v. Gamble, 429 U.S. 97, 106 (1976); see also Haines v. Kerner, 404 U.S. 519, 520
(1972).
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laws imposing a duty upon generic drug manufacturers to change a drug’s label. Both the
failure to warn and negligence claims are premised upon defendants’ alleged failure to
adequately warn of alleged dangers of fluoxetine [See Id. ¶¶ 16, 18, 21–24, 28-36, 41, 43,
48–49, 57–58, 64–69, 71–77, 79–89, 85].

Thus, because of Mensing, plaintiff’s

allegations cannot survive. See Smith v. Wyeth, Inc., 657 F.3d 420, 423 (6th Cir. 2011)
(“On appeal, the plaintiffs contend that the district court erred in concluding that their
state-law failure-to-warn claims against the generic defendants were preempted by
federal law. Their arguments must fail, however, given [Mensing].”); Brinkley v. Pfizer,
Inc., No. 10-0274-CV-W-SOW, 2012 WL 1564945, at *2 (W.D. Mo. Apr. 12, 2013)
(“The practical effects of [Mensing] leave generic drug manufacturers immune from suit
under state tort law for failure to warn.”); Stayhorn v. Wyeth Pharms., Inc., Nos. 11–
2058–STA–cgc, 11–2095–STA–cgc, 11–2083–STA–cgc, 11–2134–STA–cgc, 11–2060–
STA–cgc, 11–2059–STA–cgc, 11–2145–STA–cgc, 2012 WL 3261377, at *8 (W.D.
Tenn. Aug. 8, 2012) (“[T]he Supreme Court’s holding in Mensing is clear: state law
failure to warn claims against generic defendants related to the content of the label are
preempted.”).
IV.

Conclusion
For the reasons explained herein, the Court will GRANT Defendants Par

Pharmaceutical Companies, Inc., and Par Pharmaceutical Inc.’s Motion for Judgment on
the Pleadings [Doc. 11], and Par Pharmaceutical Companies, Inc., and Par

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Pharmaceutical Inc. will be DISMISSED from this action. As there are no other issues
in this case, the Clerk will be DIRECTED to close this case.
ORDER ACCORDINGLY.

s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE

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