Opinion
Civil Action No. 04-3357 SECTION "J" (4).
January 24, 2005
Before the Court are two motions to dismiss: Motion to Dismiss of Defendants Immunex Corporation and Amgen, Inc. and Motion to Dismiss Defendant Wyeth. The motions are opposed by Plaintiff. After reviewing the motions, opposition and the record, the Court finds that the motions should be GRANTED in part, and DENIED in part.
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BACKGROUND
On December 16, 2004, defendants, Immunex Corporation and Amgen, Inc., filed a motion to dismiss Plaintiff's suit on the grounds that the Petition fails to state a claim upon which relief can be granted. On December 23, 2004, defendant, Wyeth, filed a motion to dismiss based on the same grounds. In their motions, Defendants assert that Plaintiff's sole causes of action arise under the Louisiana Products Liability Act (the "LPLA"). Defendants argue that all causes of action alleged by Plaintiff sound in negligence and, therefore, are barred under the LPLA. Plaintiff contends that she has stated a valid cause of action under the LPLA, and the motions should be denied.LAW AND ANALYSIS
As noted by the Fifth Circuit Court of Appeals, the standard of review of a dismissal for failure to state a claim upon which relief may be granted is well established. The court
must accept all well pleaded averments as true and view them in the light most favorable to the plaintiff. [The court] will not go outside the pleadings and . . . cannot uphold the dismissal '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.'
See Hernandez v. Maxwell, 905 F.2d 94, 96 (5th Cir. 1990) (quoting Rankin v. City of Wichita Falls, 762 F.2d 444, 446 (5th Cir. 1985)).
"Dismissal is proper if the complaint lacks an allegation regarding a required element necessary to obtain relief."
Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995) (citation omitted).
The LPLA establishes the exclusive theories for holding a manufacturer liable for damages their products cause. "It requires that: 1) a characteristic of the manufacturer's product renders it unreasonably dangerous; 2) the unreasonably dangerous characteristic proximately caused the Plaintiff's damages; and 3) the damages arose when employing the product in a reasonably anticipated use." "The LPLA enumerates limited means of demonstrating an unreasonably dangerous characteristic. Namely, a plaintiff must prove the product had inadequate warnings, failed to conform to the manufacturer's express warranties, or that the dangerous characteristic is inherent in the product's design, construction, or composition."
LA.REV.STAT. § 9:2800.52.
Guidry v. Coregis Ins. Co., 04-325 (La.App. 3 Cir. 12/29/04), 2004 WL 2997789, at *3 (citing LA.REV.STAT. § 9:2800.54(A)).
See id. (citing LA.REV.STAT. § 9:2800.54(B)).
In her Petition, Plaintiff alleges that Defendant's product proximately caused her injury while using the product in a reasonably anticipated use. Thus, the question becomes whether Plaintiff has sufficiently alleged one of the limited means for demonstrating an unreasonably dangerous characteristic. Paragraph 7 of the Petition provides that "The possible stripping of the optic nerves of their myelin is a known defect in the drug." Viewing the Petition in a light most favorable to the Plaintiff, Plaintiff has sufficiently alleged that the product has a design, construction or composition defect. Paragraphs 10 and 11 allege that Defendants marketed the product "off-label" for treatment of psoriasis without FDA approval, and the medication was prescribed for Plaintiff before FDA approval. Therefore, the Petition sufficiently alleges that the product had an inadequate warning at the time it was prescribed to Plaintiff.
Notably, Paragraphs 13 and 14 allege that Defendants were negligent in marketing and testing the product. Because the LPLA provides the exclusive theories of recovery against a manufacturer in Louisiana and the LPLA excludes negligence as a theory of recovery, the Defendants motions to dismiss the two negligence claims asserted should be granted. Accordingly,
IT IS ORDERED that the Motion to Dismiss of Defendants Immunex Corporation and Amgen, Inc. and the Motion to Dismiss Defendant Wyeth should be and hereby are GRANTED to the extent that the two negligence claims are concerned, namely, negligent marketing and negligent testing, and the two negligence claims are hereby DISMISSED; IT IS FURTHER ORDERED that the remainder of the Motion to Dismiss of Defendants Immunex Corporation and Amgen, Inc. and the Motion to Dismiss Defendant Wyeth are DENIED as it relates to Louisiana Product Liability Act claims.