Opinion
Civil Action 02-0753, Section "T"
May 23, 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 FRCP 12(b). The Court, having reviewed the memoranda filed, the failure of plaintiff to file an opposition, considered the law and applicable jurisprudence, and is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND:
The plaintiff makes numerous claims against Bayer Corporation ("Bayer") in his Petition as amended, all of which are based on her allegations that Bayer manufactured and sold Alka-Seltzer Plus Cold Medicine, which contained phenylpropanolamine (PPA). See Petition par. 2, 5.
Plaintiff alleges that his ingestion of Bayer's products purportedly containing PPA caused him to suffer a heart attack in 1995 and strokes in 1998, 1999 and 2001. (See Supplemental Petition, par. 2). He has made a claim against Bayer as a manufacturer under the theory of strict liability. (See Petition par. 15). He has also asserted claims against Bayer in negligence, fraud, misrepresentation, negligent, and reckless misrepresentation and conspiracy. (See Supplemental Petition, par. IV, VI, XVI, XIX).
The Louisiana Products Liability Act ("LPLA"), La. R.S. 9:2800.51, et seq. establishes the exclusive theories of recovery against a manufacturer. Plaintiff causes of action against Bayer are limited to those expressly available under the LPLA. The LPLA does not allow the plaintiff to recover under the theories listed above.
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 LPLA became effective on September 1, 1988, and controls plaintiffs claims against Bayer 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.
III. CONCLUSION
Because plaintiffs claims of negligence, fraud, misrepresentation, negligent and reckless misrepresentation, conspiracy and strict liability are outside the scope of the LPLA, defendant's Motion to Dismiss the above referenced claims is hereby GRANTED.
Accordingly,
IT IS ORDERED that defendant, Bayer Corporation's Motion to Dismiss is hereby GRANTED.