Summary
dismissing claims sounding in negligence, gross negligence, strict liability, fraud, misrepresentation, concealment, conspiracy, suppression, and willful, wanton, and reckless conduct against pharmaceutical company because they were really products liability claims
Summary of this case from IN RE METHYL TERTIARY BUTYL ETHER PRODUCTS LIABOpinion
CIVIL ACTION NO. 02-0352.
May 29, 2002.
Before the Court is a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), filed on behalf of Bayer Corporation ("Bayer") and a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12 (b)(6), and for a More Definite Statement pursuant to Federal Rule of Civil Procedure 12(e), filed on behalf of Wyeth, f/k/a American Home Products Corporation, on behalf of itself and its unincorporated division, Wyeth Consumer Healthcare, f/k/a Whitehall-Robbins Healthcare ("Wyeth"). The Court, having reviewed the memoranda filed, the failure of plaintiff to file an opposition, the law and applicable jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND:
Plaintiff claims in her Petition for Damages ("Petition") and First Supplemental and Amending Petition for Damages ("Supplemental Petition") that Wyeth, along with Bayer, was a manufacturer, marketer and distributor of medication that contained Phenylpropanolamine ("PPA") in the State of Louisiana. (Petition ¶ ¶ 2 and 14; Supplemental Petition ¶ ¶ II and V). Plaintiff further alleges that as a result of ingesting medication containing PPA, she suffered strokes and myocardial infarctions. (Petition ¶ 11 and Supplemental Petition ¶ ¶ III).
In the present motions, defendants seek to have dismissed, pursuant to Fed.R.Civ.P. 12(b)(6), plaintiffs claims of negligence, gross negligence, strict liability, fraud, misrepresentation, concealment, conspiracy, suppression and willful, wanton and reckless conduct, as well as her claims for attorneys' fees, as failing to state a cause of action against the defendant upon which relief can be granted.
II. LAW AND ANALYSIS:
A. Law on Rule 12(b)(6) motions:
In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), courts have found that dismissal pursuant to this provision "is viewed with disfavor and is rarely granted." Lowery v. Texas AM University System, 117 F.3d 242, 247 (5th Cir. 1997); Kaiser Aluminum Chem. Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982). The complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the original complaint must be taken as true. Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1980). A district court may not dismiss a complaint under FRCP 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Blackburn v. Marshall, 42 F.3d 925, 931 (5th Cir. 1995). The Fifth Circuit defines this strict standard as, "The question therefore is whether in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief."Lowrey, 117 F.3d at 247, citing 5 Charles A. Wright Arthur R. Miller, Federal Practice and Procedure, § 1357, at 601 (1969).
B. The Court's Analysis:
The Louisiana Products Liability Act ("LPLA"), LSA-R.S. § 9:2800.51 et seq., became effective on September 1, 1988, and controls plaintiffs claims against Bayer and Wyeth in this diversity action. Under the LPLA, plaintiff has the burden of proving that an allegedly defective product was unreasonably dangerous in one of four ways: 1) construction or composition; 2) design; 3) because of an inadequate warning; or 4) because of nonconformity to an express warranty. Ashley v. General Motors Corp., 22, 851 (La.App. 4th Ci4. 5/16/95), 666 So.2d 1320, 1322.
A claimant may not recover from a manufacturer for damage caused by a product on the basis of any theory that is not set forth in the LPLA. The LPLA expressly provides: "A claimant may not recover from a manufacturer for damage caused by a product on the basis of any theory not set forth in the LPLA." La. R.S. 9:2800.52. Based on this unequivocal statutory language, courts routinely dismiss claims against manufacturers that do not arise under the LPLA. Jefferson v. Lead Industries, 106 F.3d 1245, 1251 (5th Cir. 1997) (affirming dismissal of plaintiffs claims of negligence, fraud by misrepresentation, market share liability, breach of implied warranty of fitness, and civil conspiracy due to exclusivity of the LPLA); Brown v. R.J. Reynolds Tobacco Co., 852 F. Supp. 8, 9 (E.D. La. 1994), aff'd, 52 F.3d 524 (5th Cir. 1995) (dismissing plaintiffs claims for fraudulent misrepresentation, concealment, and conspiracy due to LPLA's exclusivity); Grenier v. Medical Engineering Corp., 99 F. Supp.2d 759, 765-63 (W.D. La. 2000), aff'd, 243 F.3d 200 (5th Cir. 2001) (holding that plaintiffs claims for strict liability, negligence, breach of warranty of fitness for particular purpose, breach of implied warranty, misrepresentation, fraud by concealment, false advertising, negligent infliction of emotional distress, common plan to prevent public awareness of breast implant hazards, and future product failure were not cognizable under the LPLA). The plaintiffs claims at issue in this motion are "well outside the scope of the LPLA and must be dismissed." Grenier, 99 F. Supp.2d at 763.
Because plaintiff has set forth products liability claims against Bayer and Wyeth, the LPLA, which establishes the exclusive theories of liability for manufacturers for damages caused by their products, is the law of this case. Plaintiffs causes of action against Bayer and Wyeth are limited to those expressly available under the LPLA. The LPLA does not allow the plaintiff to recover for negligence, gross negligence, strict liability, fraud, misrepresentation, concealment, conspiracy, suppression and willful, wanton and reckless conduct against Bayer and Wyeth.
The Court notes that Wyeth additionally sought the dismissal of plaintiffs claim for attorneys' fees as set forth in ¶ 16 of the complaint; however, this Court will defer from ruling on this issue at this time and cautions that the granting of defendant's motion herein in no way applies to the claim for attorneys' fees.
Accordingly,
IT IS ORDERED that the Motion to Dismiss filed on behalf of defendant, Bayer Corporation be and the same is hereby GRANTED, as provided herein.
IT IS FURTHERED ORDERED that the Motion to Dismiss filed on behalf of defendant, Wyeth, f/k/a American Home Products Corporation, on behalf of itself and its unincorporated division, Wyeth Consumer Healthcare, f/k/a Whitehall-Robbins Healthcare, be and the same is hereby GRANTED, as provided herein.