Lussan v. Merck Sharp & Dohme Corp et al, No. 2:2017cv03086 - Document 14 (E.D. La. 2017)
Court Description: ORDER granting 7 Motion to Dismiss. For the foregoing reasons, Plaintiff's complaint is DISMISSED WITH PREJUDICE. Signed by Judge Sarah S. Vance on 6/1/2017. (cg)
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Lussan v. Merck Sharp & Dohme Corp et al Doc. 14 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA MERYL LUSSAN CIVIL ACTION VERSUS NO. 17-30 86 MERCK SHARP & DOHME CORP., ET AL. SECTION “R” (4) ORD ER AN D REASON S Defendants Organon USA, Inc., Merck Sharp & Dohme Corp., and Merck & Co., Inc., (collectively “Merck”) m ove the Court to dism iss Meryl Lussan’s com plaint pursuant to Federal Rule of Civil Procedure 12(b)(6). 1 Lussan does not oppose the m otion. Because Lussan fails to plead a plausible claim under the Louisiana Products Liability Act, the Court dism isses her com plaint. I. BACKGROU N D This is a Louisiana law products liability case. According to plaintiff’s com plaint, defendants design, m anufacture, market, and sell Implanon and Nexplanon, both of which are birth control im plants designed to prevent 1 R. Doc. 7. Dockets.Justia.com pregnancy. 2 Plaintiff alleges that in approxim ately March of 20 11, she had an Im planon im plant inserted. 3 Between J une and August of 20 11, plaintiff allegedly suffered urinary tract infections, lower right abdom inal pain, burning, and painful bowel m ovements. 4 In March of 20 12, plaintiff had her Im planon im plant replaced with a Nexplanon im plant. 5 Plaintiff alleges that over the next two years, she experienced m ultiple urinary tract infections, bowel issues, lower back pain, significant weight loss, nausea, vom iting, headaches, and other sym ptom s. 6 Despite these issues, when her im plant expired in J anuary, 20 15, plaintiff had it replaced with a new Nexplanon im plant. 7 On J anuary 4, 20 17, plaintiff sued Merck in state court, 8 alleging that Im planon and Nexplanon were defective and unreasonably dangerous, and that plaintiff’s use of Implanon and Nexplanon caused her injuries. 9 Plaintiff also alleged that defendants m ade false, m isleading, and inaccurate representations, that the im plants were “inherently dangerous in a m anner 2 3 4 5 6 7 8 9 R. Doc. 1-2 at 3-4 ¶¶ 2, 3, 7. Id. at 3 ¶ 2. Id. ¶¶ 2, 3. Id. ¶ 3. Id. ¶ 4. Id. Id. at 2. Id. at 3 ¶ 6. 2 that exceeded any purported, inaccurate and/ or insufficient warnings,” and that the im plants were unreasonably dangerous in their construction and/ or com position. 10 On April 10 , 20 17, Merck rem oved the case to this Court on the basis of diversity jurisdiction. 11 Defendants now m ove to dism iss, arguing that plaintiff fails to state a claim for which relief can be granted. Plaintiff has not responded to defendants’ m otion. II. D ISCU SSION To survive a Rule 12(b)(6) m otion to dism iss, the plaintiff m ust plead “sufficient factual m atter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quoting Bell Atlantic Corp. v. Tw om bly , 550 U.S. 544, 570 (20 0 7)). A claim is facially plausible when the plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the m isconduct alleged.” Id. A court m ust accept all well-pleaded facts as true, viewing them in the light m ost favorable to the plaintiff. Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir. 20 12) (quoting In re Katrina Canal Breaches Litig., 495 10 11 Id. at 4 ¶¶ 8, 9. R. Doc. 1. 3 F.3d 191, 20 5 (5th Cir. 20 0 7)). But a court is not bound to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678. A legally sufficient com plaint m ust establish m ore than a “sheer possibility” that the plaintiff’s claim is true. Id. It need not contain detailed factual allegations, but it m ust go beyond labels, legal conclusions, or form ulaic recitations of the elements of a cause of action. Id. (citing Tw om bly , 550 U.S. at 555). In other words, the face of the com plaint m ust contain enough factual m atter to raise a reasonable expectation that discovery will reveal evidence of each elem ent of the plaintiff’s claim . Lorm and v. U.S. Unw ired, Inc., 565 F.3d 228, 257 (5th Cir. 20 0 9). If there are insufficient factual allegations to raise a right to relief above the speculative level, Tw om bly , 550 U.S. at 555, or if it is apparent from the face of the com plaint that there is an insuperable bar to relief, see Jones v. Bock, 549 U.S. 199, 215 (20 0 7); Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 20 0 7), the claim must be dism issed. III. D ISCU SSION In Louisiana, the Louisiana Products Liability Act provides the exclusive theories of liability of a m anufacturer for damages caused by its product. La. Stat. Ann. § 9:280 0 .52. A plaintiff m ay not recover from a 4 m anufacturer in tort under any theory of liability that is not set forth in the LPLA. Id.; Stahl v. N ovartis Pharm . Corp., 283 F.3d 254, 261-62 (5th Cir. 20 0 2). The statute provides that a m anufacturer “shall be liable to a claim ant for dam age proxim ately caused by a characteristic of the product that renders the product unreasonably dangerous when such dam age arose from a reasonably anticipated use of the product by the claim ant or another person or entity.” La. Stat. Ann. § 9:280 0 .54(A). A product is unreasonably dangerous for the purposes of the statute “if and only if” it is unreasonably dangerous: (1) in construction or composition, (2) in design, (3) because of inadequate warning, or (4) because of nonconform ity to an express warranty. Id. at § 9:280 0 .54(B)(1– 4). Thus, the LPLA lim its the plaintiff to four theories of recovery: construction/ com position defect, design defect, inadequate warning, and breach of express warranty. “While the statutory ways of establishing that a product is unreasonably dangerous are predicated on principles of strict liability, negligence, or warranty, respectively, neither negligence, strict liability, nor breach of express warranty is any longer viable as an independent theory of recovery against a m anufacturer.” Jefferson v. Lead Indus. Ass’n, Inc., 930 F. Supp. 241, 245 (E.D. La. 1996) aff’d, 10 6 F.3d 1245 (5th Cir. 1997) (citing 5 Autom atique N ew Orleans, Inc. v. U-Select-It, Inc., 1995 WL 491151 at *3 n.2 (E.D. La. Aug. 15, 1995) (no independent negligence claim ); J . Kennedy, A Prim er on the Louisiana Products Liability Act, 49 La. L. Rev. 565, 589-90 (1989)). Plaintiff’s com plaint is heavy on legal conclusions but light on factual allegations. The com plaint generally alleges that the im plants were unreasonably dangerous in their construction and/ or com position, and plaintiff alleges false representations and “insufficient warnings.”12 Viewing plaintiff’s allegations in the light most favorable to plaintiff, the Court interprets her complaint as attem pting to assert that the im plants were unreasonably dangerous because of their construction/ com position, because of inadequate warnings, and because of nonconform ity with an express warranty, all theories of liability under the LPLA. The Court next considers whether plaintiff’s allegations satisfy the LPLA. A. Co n s tru ctio n o r Co m p o s itio n To establish a claim for defective construction or com position under the LPLA, plaintiff m ust establish that, “at the tim e the product left its m anufacturer’s control, the product deviated in a m aterial way from the m anufacturer’s specifications or perform ance standards for the product or 12 R. Doc. 1-2 at 4 ¶¶ 8, 9. 6 from otherwise identical products m anufactured by the sam e m anufacturer.” La. Stat. Ann. § 9:280 0 .55. Here, plaintiff alleges that Merck’s products are “unreasonably dangerous in their construction and/ or com position,” but her com plaint is devoid of any factual allegations as to how the products are defectively constructed or com posed. She makes no allegations regarding any possible deviations from Merck’s specifications or perform ance standards, nor does plaintiff allege any deviations from identical products m anufactured by Merck. She also does not allege specifically how the unidentified defect caused plaintiff’s injuries. Federal courts applying the LPLA have m ade clear that defective construction or com position claim s require m ore than conclusory allegations, and will not survive m otions to dism iss without allegations of how the product is defective and how this defect caused the plaintiff’s injuries. See, e.g., Aucoin v. Am neal Pharm ., LLC, No. 11-1275, 20 12 WL 2990 697, at *10 (E.D. La. J uly 20 , 20 12) (granting m otion to dism iss plaintiff’s defective construction or composition claim because plaintiff did not allege that product deviated from production standards or identical products); W atson v. Bay er Healthcare Pharm ., Inc., No. 13-212, 20 13 WL 1558328, at *4 (E.D. La. Apr. 11, 20 13) (granting m otion to dism iss plaintiff’s defective construction or com position claim because plaintiff did not allege how product deviated from production standards or 7 how the unknown defect caused her alleged injuries); Kennedy v. Pfizer, Inc., No. 13-3132, 20 14 WL 40 930 65, at *3 (W.D. La. Aug. 15, 20 14) (same); Becnel v. Mercedes-Benz USA, LLC, No. 14-0 0 0 3, 20 14 WL 4450 431, at *4 (E.D. La. Sept. 10 , 20 14) (sam e). Plaintiff’s conclusory allegations therefore do not rise to the level of plausibility required by Tw om bly and Iqbal. Accordingly, her defective construction or com position claim m ust be dism issed. B. In ad e qu ate W arn in g For inadequate warning claim s regarding pharm aceutical products, Louisiana applies the “learned intermediary doctrine.” Stahl, 283 F.3d at 265. Under this doctrine, a drug m anufacturer “discharges its duty to consum ers by reasonably inform ing prescribing physicians of the dangers of harm from a drug.” Id. (citing Anderson v. McN eilab, Inc., 831 F.2d 92, 93 (5th Cir. 1987)). Accordingly, drug m anufacturers have “no duty to warn the patient, but need only warn the patient’s physician.” W illett v. Baxter Intern., Inc., 929 F.2d 10 94, 10 98 (5th Cir. 1991). To prevail on an inadequate warning claim , plaintiff m ust dem onstrate: “(1) that the defendant failed to warn the physician of a risk associated with the use of the product, not otherwise known to the physician, and (2) that the failure to warn the physician was both a cause in fact and the 8 proxim ate cause of plaintiff’s injury.” Id. This causation requirem ent means that the plaintiff m ust show that “a proper warning would have changed the decision of the treating physician, i.e. that but for the inadequate warning, the treating physician would not have used or prescribed the product.” Id. at 10 99. Plaintiff fails to allege facts giving rise to an inadequate warning claim under the LPLA. She merely asserts that any warnings were “insufficient.” She makes no m ention of any specific risks that were not disclosed to her doctor, and she does not allege that a specific failure to warn caused her injuries. Nor does she allege that but for this insufficient warning, her doctor would not have used or prescribed the product. These deficiencies are fatal to plaintiff’s inadequate warning claim , and the claim m ust be dism issed. See Huffm an v. Squibb, No. 16-3714, 20 16 WL 60 24532, at *2 (E.D. La. Oct. 14, 20 16) (dism issing inadequate warning claim under LPLA because plaintiff did not allege that adequate warning would have changed the decision of treating physician); Hargrove v. Boston Sci. Corp., No. 13-3539, 20 14 WL 4794763, at *11 (E.D. La. Sept. 24, 20 14) (same); W atson, 20 13 WL 1558328, at *5 (dism issing inadequate warning claim under LPLA because plaintiff did not allege “facts suggesting how allegedly inadequate warning caused her specific injury”). 9 C. Bre ach o f Exp re s s W arran ty Under the LPLA, a m anufacturer of a product that is unreasonably dangerous because it does not conform to an express warranty about the product is liable for dam ages caused by that non-conform ity. La. Stat. Ann. § 9:280 0 .58. To establish a breach of express warranty claim , a plaintiff m ust show that (1) there was an express warranty m ade by the m anufacturer about the product; (2) the express warranty induced the plaintiff to use the product; and (3) the plaintiff’s dam age was proxim ately caused because the express warranty was untrue. Id.; see also Caboni v. Gen. Motors Corp., 278 F.3d 448, 452 (5th Cir. 20 0 2). The LPLA defines “express warranty” as “a representation, statement of alleged fact or prom ise about a product . . . that represents, affirm s or prom ises that the product . . . possesses specified characteristics or qualities or will m eet a specified level of performance.” La. Stat. Ann. § 9:280 0 .53(6). The statute adds that “general opinion[s]” or “general praise” of a product do not qualify as express warranties. Id. Here, plaintiff’s allegations are plainly insufficient to state a breach of express warranty claim . Plaintiff alleges that defendants m ade representations that were false, m isleading, and inaccurate when they represented that their im plants were safe and effective, and that the im plants 10 were reversible, in that they could be rem oved whenever the patient desired. 13 Plaintiff fails to offer any specifics as to Merck’s representations that could am ount to a warranty. Nor does she allege that any express representation induced her to use Implanon or Nexplanon or that any such representation induced her doctor to prescribe either of them . Nor does she allege how the asserted representations were untrue. Indeed, plaintiff contradicts her allegation that the representation that the im plants were replaceable was false in other parts of her complaint. 14 While plaintiff is not required to identify the exact language used in the warranty, she m ust specify the warranty in question and explain why the warranty was untrue. 15 See Robertson v. AstraZeneca Pharm ., LP, No. 15-438, 20 15 WL 5823326, at *5 (E.D. La. Oct. 6, 20 15) (citations om itted). Plaintiff’s failure to do so, along with her failure to allege that the warranty induced the use of the implants renders her breach of warranty claim insufficient under Tw om bly and Iqbal. See Henderson v. Dasa, No. 13-0 8, 20 14 WL 1365968, at *3 (E.D. La. Apr. 7, 13 R. Doc. 1-2 at 4 ¶ 9. See id. at 3 ¶ 3 (“Plaintiff . . . rem oved the Implanon im plant and inserted Nexplanon as a replacem ent.”); id. ¶ 4 (“Plaintiff had the Nexplanon rem oved as it expired and had Nexplanon reinserted.”). 15 To the extent that plaintiff relies on statem ents m ade in advertisements or in m arketing m aterials, these statements generally “are not warranties because they are ‘puffery,’ ‘general praise,’ or ‘general opinion.’” Robertson, 20 15 WL 5823326, at *5 (quoting Becnel, 20 14 WL 4450 431, at *5; La. Stat. Ann. § 9:280 0 .53(6)). 11 14 20 14) (dism issing plaintiff’s express warranty claim because plaintiff’s com plaint “is devoid of any allegations regarding the content of the alleged warranty, m uch less an explanation of how that warranty was untrue”); Robertson, 20 15 WL 5823326, at *5 (dism issing breach of express warranty claim under LPLA because plaintiff failed to “m ake m ore than a general reference to [an express warranty]”); Flournoy v. Johnson & Johnson, No. 15-50 0 0 , 20 16 WL 6474142, at *3-4 (E.D. La. Nov. 2, 20 16) (stating that plaintiffs’ LPLA breach of express warranty claim fails to m eet the requisite pleading standard because “it does not identify the contents of any warranty or how that warranty induced the Plaintiff to use the product”); see also Doe v. AstraZeneca Pharm aceuticals, LP, No. 15-438, 20 15 WL 4661814, at *4 (E.D. La. Aug. 5, 20 15) (rejecting breach of express warranty claim despite plaintiff’s allegation that product was represented as safe and effective). D. D is m is s al W ith Pre ju d ice In sum, even when construed in the light m ost favorable to plaintiff, plaintiff’s allegations are insufficient to raise a right to relief above the speculative level. 16 Tw om bly , 550 U.S. at 555. Rule 8 of the Federal Rules 16 Plaintiff’s com plaint does not allege anything related to the design of Implanon and Nexplanon. Even if plaintiff’s barebones com plaint could be read to assert a design defect claim under the LPLA, the claim would fail because she fails to allege that safer alternative designs of the im plants exist and she fails to allege that these unidentified alternative designs would 12 of Civil Procedure “dem ands m ore than an unadorned, the-defendantunlawfully-harm ed-m e accusation.” Gulf Coast Hotel-Motel Ass’n v. Miss. Gulf Coast Golf Course Ass’n, 658 F.3d 50 0 , 50 4 (5th Cir. 20 11) (citing Iqbal, 556 U.S. at 678). Therefore, these claim s are dism issed. Merck’s m otion to dism iss asks the Court to dism iss plaintiff’s com plaint with prejudice. Plaintiff did not respond to Merck’s m otion, and therefore presents no argument against a dism issal with prejudice. Nor does plaintiff request leave to amend her com plaint. See Fed. R. Civ. P. 15(a)(2). As such, the Court has no basis to determ ine how plaintiff would overcome the deficiencies in her com plaint. Accordingly, plaintiff’s com plaint is dism issed with prejudice. See Cinel v. Connick, 15 F.3d 1338, 1346 (5th Cir. 1994) (affirm ing dism issal with prejudice when plaintiff did not ask for leave to am end and therefore failed to specify how he would amend complaint to overcome previous 12(b)(6) dism issal); Alsenz v. Aurora Bank, FSB, 641 F. App’x 359, 363 (5th Cir. 20 16) (sam e). have prevented her injuries. See, e.g., Kennedy , 20 14 WL 40 930 65, at *4 (“The failure to plead that an alternative design was available for the product is enough to doom the [claim ], as the existence of an alternative design is a necessary elem ent to a design defect claim under . . . the LPLA.”) (citation om itted); see also Aucoin, 20 12 WL 2990 697, at *10 . 13 IV. CON CLU SION For the foregoing reasons, Merck’s m otion is GRANTED. Plaintiff’s com plaint is DISMISSED WITH PREJ UDICE. 1st New Orleans, Louisiana, this _ _ _ _ _ day of J une, 20 17. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 14
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