Macaluso et al v. Bristol-Myers Squibb et al, No. 2:2016cv03673 - Document 26 (E.D. La. 2016)
Court Description: ORDER AND REASONS re 14 MOTION to Dismiss for Failure to State a Claim - IT IS ORDERED that defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART as set forth herein. Plaintiff has leave to file an amended complaint addressing the present infirmities with the failure to warn claim no later than October 26, 2016. Should defendants still contend that any amended complaint does not plead causation on the failure to warn claim, defendants may file a motion to dismiss the clai m on such grounds no later than November 4, 2016. Should defendants do so, plaintiff shall respond no later than November 14, 2016, at which point the Court will take the motion under submission. IT IS ORDERED that defendants motion for a more defini te statement is GRANTED. No later than October 26, 2016, plaintiff shall file an amended complaint specifying (1) when the decedent was injured by Eliquis, and (2) when the decedent became aware of her injuries. Should defendants contend that dismis sal on prescription grounds is appropriate based on the pleadings, defendants shall so move no later than November 4, 2016.3 Should defendants do so, plaintiff shall respond no later than November 14, 2016, at which point the Court will take the motion under submission. Signed by Judge Lance M Africk on 10/18/2016.(blg)
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Macaluso et al v. Bristol-Myers Squibb et al Doc. 26 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA KAREN MACALUSO, INDIVIDUALLY AND AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF JOSEPHINE GALIANO CIVIL ACTION VERSUS No. 16-3673 BRISTOL-MYERS SQUIBB ET AL. SECTION I ORDER AND REASONS Before the Court is defendants’ motion 1 to dismiss and for a more definite statement. The Court recently resolved a substantively identical motion in another case pending before it, one involving the same defendants as this case and all of the same lawyers. See Huffman v. Bristol-Myers Squibb et al., Civil Action No. 16-3714, R. Doc. No. 27. In fact, the only difference worth noting between this case and Huffman in terms of the legal issues raised by defendants’ motion is that in this case the plaintiff is suing individually and in a representative capacity on behalf of Josephine Galiano, who allegedly died as the result of defendants’ product. Compl. ¶¶ 4, 13. It follows that the result in Huffman should also govern here. Accordingly, for the same reasons provided in this Court’s order and reasons in the Huffman case, 2 1 2 R. Doc. No. 14. Huffman v. Bristol-Myers Squibb et al., Civil Action No. 16-3714, R. Doc. No. 27. Dockets.Justia.com IT IS ORDERED that defendants’ motion to dismiss is GRANTED IN PART and DENIED IN PART as set forth herein. Plaintiff has leave to file an amended complaint addressing the present infirmities with the failure to warn claim no later than October 26, 2016. Should defendants still contend that any amended complaint does not plead causation on the failure to warn claim, defendants may file a motion to dismiss the claim on such grounds no later than November 4, 2016. Should defendants do so, plaintiff shall respond no later than November 14, 2016, at which point the Court will take the motion under submission. IT IS ORDERED that defendants’ motion for a more definite statement is GRANTED. No later than October 26, 2016, plaintiff shall file an amended complaint specifying (1) when the decedent was injured by Eliquis, and (2) when the decedent became aware of her injuries. Should defendants contend that dismissal on prescription grounds is appropriate based on the pleadings, defendants shall so move no later than November 4, 2016. 3 Should defendants do so, plaintiff shall respond no later than November 14, 2016, at which point the Court will take the motion under submission. New Orleans, Louisiana, October 18, 2016. _______________________________________ LANCE M. AFRICK UNITED STATES DISTRICT JUDGE 3 To be clear, failure to so move would not waive the ability to timely move for summary judgment on the issue provided that any such defense is raised in the answer. 2
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