Dearinger et al v. Eli Lilly and Company

Filing 9

ORDER: Because the complaint fails to state a claim upon which relief can be granted, the Court must DISMISS the complaint. However, the Court dismisses the complaint without prejudice and with leave to amend. That means Plaintiffs may revise their complaint to assert a claim under the Washington Product Liability Act. If Plaintiffs wish to do so, they must file an amended complaint within 21 days of the date of this order. Signed by U.S. District Judge John C. Coughenour. (MW) (cc: Plaintiff Ganna P Dearinger via USPS)

Case 2:21-cv-00060-JCC Document 9 Filed 02/16/21 Page 1 of 2

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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DAVID J. DEARINGER, et al.,

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Plaintiffs,

CASE NO. C21-0060-JCC
ORDER

v.
ELI LILLY AND COMPANY,

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Defendant.

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This matter comes before the Court sua sponte. Plaintiffs were granted leave to proceed

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in forma pauperis on January 21, 2021. (Dkt. No. 4.) The Court must dismiss an in forma

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pauperis complaint if it fails to state a claim upon which relief may be granted. 28 U.S.C. §

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1915(e)(2)(B)(ii). To state a claim for relief, “a complaint must contain sufficient factual matter,

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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is

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facially plausible “when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Id. “A pleading that

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offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will

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not do.’” Id. (quoting Twombly, 550 U.S. at 555). “Dismissal can [also] be based on the lack of a

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cognizable legal theory.” Balisteri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988).

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Plaintiffs allege that Mr. Dearinger suffered a paralytic stroke after taking Cialis, a drug
ORDER
C21-0060-JCC
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Case 2:21-cv-00060-JCC Document 9 Filed 02/16/21 Page 2 of 2

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manufactured by Defendant Eli Lilly and Company. (Dkt. No. 5 at 2–3.) Mr. Dearinger and his

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wife now seek to assert negligence and loss of consortium claims against Eli Lilly and Company.

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(Id. at 4–5.)

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Plaintiffs fail to state a claim upon which relief may be granted because they do not plead

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a cognizable legal theory. Washington’s Product Liability Act, Chapter 7.72 RCW, “is the

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exclusive remedy for product liability claims.” Macias v. Saberhagen Holdings, Inc., 282 P.3d

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1069, 1073 (Wash. 2012). “It supplants all common law claims or actions based on harm caused

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by a product.” Id. This includes “common law actions for negligence.” Wash. State Physicians

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Ins. Exch. & Ass’n v. Fisons Corp., 858 P.2d 1054, 1066 (Wash. 1993). Therefore, Plaintiffs may

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not bring a negligence claim or loss of consortium claim against Eli Lilly and Company for harm

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caused by Cialis. If Plaintiffs wish to sue Defendant Eli Lilly and Company for harm from Cialis,

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they must assert a claim under the Washington Product Liability Act.

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Because the complaint fails to state a claim upon which relief can be granted, the Court

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must DISMISS the complaint. However, the Court dismisses the complaint without prejudice

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and with leave to amend. That means Plaintiffs may revise their complaint to assert a claim

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under the Washington Product Liability Act. If Plaintiffs wish to do so, they must file an

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amended complaint within 21 days of the date of this order.

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DATED this 16th day of February 2021.

A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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ORDER
C21-0060-JCC
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