Gomilla v. Bracco Diagnostics, Inc., et al, No. 2:2018cv10212 - Document 73 (E.D. La. 2019)

Court Description: ORDER AND REASONS - Granting in Part and Denying in Part 30 Motion to Dismiss for Failure to State a Claim; 33 Motion to Dismiss for Failure to State a Claim; and 35 Motion to Dismiss for Failure to State a Claim, as more fully set forth her ein. FURTHERED ORDERED that Plaintiff is GRANTED leave to file an amended and restated complaint to comply with the pleading requirements of Rule 12(b)(6) and, as applicable, the heightened pleading requirements of Rule 9(b). Plaintiff shall file an amended and restated complaint by no later than Friday, 7/12/2019. Signed by Judge Susie Morgan on 7/3/2019. (sbs)
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Gomilla v. Bracco Diagnostics, Inc., et al Doc. 73 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A J U D Y GOMILLA, Plain tiff CIVIL D OCKET VERSU S N O. 18 -10 2 12 BRACCO D IAGN OSTICS, IN C., e t al D e fe n d an t SECTION : “E” ( 2 ) ORD ER AN D REAS ON S Before the Court is a Motion to Dism iss for Failure to State a Claim filed by Defendants McKesson Corporation and McKesson Medical-Surgical, Inc. (collectively, “McKesson”), 1 a Motion to Dism iss for Failure to State a Claim filed by Defendants GE Healthcare, Inc. and General Electric Com pany (collectively “GEHC”), 2 and a Motion to Dism iss filed by Defendant Bracco Diagnostics, Inc. (“BDI”). 3 Plaintiff J udy Gom illa opposes each of these m otions. 4 In each Opposition, Plaintiff states she will am end the Com plaint if the Court deem s it necessary. 5 For the reasons that follow, McKesson’s, GEHC’s, and BDI’s m otions to dism iss are each GRAN TED IN PART, and Plaintiff is GRAN TED leave to am end her com plaint with respect to any rem aining claim s. BACKGROU N D Plaintiff alleges she was adm inistered gadolinium -based contrast agents (“GBCAs”). 6 Plaintiff alleges various defendants including McKesson distributed the GBCAs adm inistered to Plaintiff, 7 and various defendants including GEHC and BDI 1 R. Doc. 30 . R. Doc. 33. 3 R. Doc. 35. 4 R. Docs. 36, 37, and 38. 5 Id. 6 R. Doc. 1. at ¶¶ II-V. 7 Id. at ¶ XXIII. 2 1 Dockets.Justia.com design ed, m anufactured, m arketed, an d sold the GBCAs adm inistered to Plaintiff. 8 As a result of being injected with GBCAs, Plain tiff allegedly suffered from sym ptom s of Gadolinium Deposition Disease (“GDD”), including “skin patchin ess, bone and joint pain and cognitive im pairm ent.” 9 Plaintiff filed the present suit on October 31, 20 18. McKesson, GEHC, and BDI have individually m oved to dism iss each of Plaintiff’s claim s against them . 10 LEGAL STAN D ARD I. Mo tio n to D is m is s U n d e r Ru le 12 ( b) ( 6 ) Rule 12(b)(6) provides for dism issal of a claim if the claim ant fails to set forth a factual allegation in support of its claim that would entitle it to relief (i.e. for “failure to state a claim ”). 11 Those factual allegations “m ust be enough to raise a right to relief above the speculative level.” 12 “To survive a m otion to dism iss, a com plaint m ust contain sufficient factual m atter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 13 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the m isconduct alleged.”14 The Court m ust accept all well-pleaded facts as true and m ust draw all reason able inferences in favor of the non-m oving party, 15 but the Court need not accept as true legal conclusions couched as factual allegations. 16 “Motions to dism iss under Rule 8 Id. at ¶¶ III-IV. Id. at ¶¶ VI, XXXVII. 10 R. Docs. 30 , 33, and 35. 11 See, e.g., Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 555 (20 0 7); Cuvillier v. Tay lor, 50 3 F.3d 397, 40 1 (5th Cir. 20 0 7). 12 Gonzalez v. Kay , 577 F.3d 60 0 , 60 3 (5th Cir. 20 0 9) (quoting Tw om bly , 550 U.S. at 555). 13 Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quotin g Tw om bly , 550 U.S. at 570 ). 14 Id. 15 Lorm and v. U.S. Un w ired, Inc., 565 F.3d 228, 239 (5th Cir. 20 0 9). 16 Iqbal, 556 U.S. at 678. 9 2 12(b)(6) are viewed with disfavor and are rarely granted.”17 As a result, the Court should generally “afford plain tiffs at least one opportunity to cure pleading deficiencies before dism issing a case, unless it is clear that the defects are incurable or the plaintiffs advise the court that they are unwilling or unable to am end in a m anner that will avoid dism issal.”18 II. Mo tio n to D is m is s U n d e r Ru le 9 ( b) Federal Rule of Civil Procedure 9(b) governs pleading standards for fraud claim s, including state-law fraud claim s. 19 Rule 9(b) also applies to negligent m isrepresentation claim s “when based on the sam e alleged facts as a fraud claim .”20 Rule 9(b) provides: “In alleging fraud or m istake, a party m ust state with particularity the circum stances constituting fraud or m istake.”21 “What constitutes ‘particularity’ will necessarily differ with the facts of each case and hence the Fifth Circuit has never articulated the requirem ents of Rule 9(b) in great detail.” 22 The Fifth Circuit “interprets Rule 9(b) strictly, requiring the plaintiff to specify the statem ents contended to be fraudulent, identify the speaker, state when an d where the statem ents were m ade, and explain why the statem ents were fraudulent.”23 “At a m inim um , Rule 9(b) requires allegations of the particulars of tim e, place, and contents of the false representations, as well as the identity of the person m aking the m isrepresentation and what he obtained thereby.”24 A plaintiff’s 17 Lorm and, 565 F.3d at 232 (5th Cir.20 0 9) (citation om itted). Great Plains Trust Co. v. Morgan Stanley Dean W itter & Co., 313 F.3d 30 5, 329 (5th Cir. 20 0 2). 19 Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338– 39 (5th Cir. 20 0 8) (“[S]tate-law fraud claim s are subject to the pleading requirem ents of Rule 9(b).”) (citing Abram s v. Baker Hughes Inc., 292 F.3d 424, 430 (5th Cir. 20 0 2); W illiam s v. W M X Technologies, Inc., 112 F.3d 175, 177 (5th Cir. 1997)). 20 Center for Reconstructive Breast Surgery , LLC v. Blue Cross Blue Shield of La., No. 11– 80 6, 20 14 WL 4930 443, at *7 (E.D. La. Sept. 30 , 20 14) (citing Benchm ark Elecs., Inc. v. J.M . H uber Corp., 343 F.3d 719, 723 (5th Cir. 20 0 3)). 21 Fed. R. Civ. P. 9(b). 22 Guidry v . Bank of LaPlace, 954 F.2d 278 , 28 8 (5th Cir. 1992). 23 Flaherty & Crum rine Preferred Incom e Fund, Inc. v. TXU Corp., 565 F.3d 20 0 , 20 7 (5th Cir. 20 0 9). 24 Tel– Phonic Services, Inc. v . TBS Int'l, Inc., 975 F.2d 1134, 1139 (5th Cir. 1992). 18 3 failure to m eet Rule 9(b)’s heightened pleading requirem ents “should not autom atically or inflexibly result in dism issal of the com plaint,” but rather a plaintiff should be granted leave to am end unless am en dm ent would be futile or the plaintiff has already been granted opportunities to am end. 25 LAW AN D AN ALYSIS I. Th e LPLA The LPLA “establishes the exclusive theories of liability for m anufacturers for dam age caused by their products.” 26 The four theories under which a plaintiff m ay recover in an LPLA action are that the product in question was unreasonably dangerous: (1) in construction or com position 27; (2) in design 28 ; (3) because of inadequate warning 29 ; or (4) because of nonconform ity to an express warranty. 30 A few applicable lim itations on the exclusivity provision of the LPLA warrant brief discussion. First, the LPLA applies only to m anufacturers. “Manufacturer” is defined as “a person or entity who is in the business of m anufacturing a product for placem ent into trade or com m erce.”31 Second, a plaintiff is lim ited to the theories of liability under the LPLA only when m aking a claim for “dam ages” as defined by the LPLA. Under the LPLA, “dam age”: [M]eans all dam age caused by a product, including survival and wrongful death dam ages, for which Civil Code Article 2315, 2315.1 and 2315.2 allow recovery. “Dam age” includes dam age to the product itself and econom ic loss arising from a 25 Hart v. Bay er Corp., 199 F.3d 239, 248 (5th Cir. 20 0 0 ); see Cates v. International Telephone and Telegraph Corp., 756 F.2d 1161, 1180 (5th Cir. 1985) (“But such deficiencies do not norm ally justify dism issal of the suit on the m erits and without leave to am end, at least not in the absence of special circum stances.”); U.S. ex rel. Stew art v. The Louisiana Clinic, No. 99-1767, 20 0 2 WL 257690 , at *5 (E.D. La. Feb. 22, 20 0 2). 26 LA. REV. STAT. ANN. § 9:280 0 .52. 27 Id. § 280 0 .55. 28 Id. § 280 0 .56. 29 Id. § 280 0 .57. 30 Id. § 280 0 .58. 31 Id. § 280 0 .53(1). 4 deficiency in or loss of us of the product only to the extent that Chapter 9 of Title VII of Book III of the Civil Code, entitled “Redhibition,” does not allow recovery for such dam age or econom ic loss. 32 The LPLA does not preclude dam ages for breach of contract, including “breach of contract based fraud pursuant to article 1953.”33 II. McKe s s o n ’s Mo tio n to D is m is s Plaintiff brings the following claim s against McKesson as a distributor: (1) strict liability for failure to warn, (2) negligence, (3) fraud, (4) fraud by concealm ent, (5) negligent m isrepresentation, 34 and (6) the LPLA. 35 A. Mo tio n to D is m is s U n d e r Ru le 12 ( b) ( 6 ) 1. LPLA McKesson m oves to dism iss under Rule 12(b)(6) Plaintiff’s claim s under the LPLA. 36 Plaintiff “agrees with defen dant that any cause of action outside of negligen ce m ay not be asserted by Plaintiff, and that dism issal of those claim s, for this defendant, is proper.” 37 Thus, to the extent Plaintiff brings an LPLA claim against McKesson as a distributor, this claim is dism issed with prejudice, with Plaintiff’s consent. 2. N e glige n ce McKesson m oves to dism iss under Rule 12(b)(6) Plaintiff’s negligence claim . McKesson argues its liability as a distributor is lim ited in Louisiana: “‘[A] nonm anufacturer/ seller can be held liable for dam ages in tort only if he knew or should have 32 Id. § 280 0 .53(5). C-In novation, LLC v . N orddeutsche Seekabelew erke GMBH, No. 10 – 4441, 20 13 WL 990 0 26, at *5 (E.D. La. Mar. 13, 20 13). 34 R. Doc. 1 at ¶¶ LXXII-CIII. 35 R. Doc. 38 at 3 (“. . . Plaintiff states a claim for relief under the LPLA . . ..”). 36 R. Doc. 30 -1 at 4-5. 37 R. Doc. 38 at 6. 33 5 known that the product was defective and failed to declare the defect to the purchaser.’”38 McKesson argues: “The only allegation of breach in line with this standard that is applicable to McKesson as a distributor is that ‘Defendants failed to exercise ordin ary care in the labeling of GBCAs.’”39 Plaintiff agrees “McKesson is a distributor,” and “[a]s a distributor . . . and not a m anufacturer, a non-m anufacturing seller who does not vouch for the product by holding it out as his own does not incur strict m anufacturer's liability under the [LPLA], but is responsible for dam ages in tort only if he knew or should have known that the product sold was defective, an d failed to declare it.” 40 Plaintiff alleges “the product sold by the m anufacturer Co-Defendants was dangerous due to the defective nature of the product, that [t]his dangerous and defective condition was known and/ or knowable by McKesson, but that McKesson sold the m anufacturer’s product despite that knowledge.”41 B. Mo tio n to D is m is s U n d e r Ru le 9 ( b) McKesson m oves to dism iss under Rule 9(b) Plaintiff’s claim s for: (1) fraud, (2) fraud by concealm ent, and (3) negligent m isrepresentation. 42 “At a m inim um , Rule 9(b) requires allegations of the particulars of tim e, place, and contents of the false representations, as well as the identity of the person m aking the m isrepresentation an d what he obtained thereby.”43 McKesson argues Plaintiff’s com plaint “does not identify when or where the allegedly fraudulent statem ents were m ade, who m ade them on McKesson’s behalf, what these statem ents were, how she relied on them , or how she was 38 R. Doc. 30 -1 at 6 (quotin g Adam s v. Ow ens-Corning Fiberglas Corp., 923 So.2d 118, 123 (La. Ct. App. 20 0 5), w rit denied 925 So.2d 519 (La. 20 0 6)). 39 Id. (quotin g R. Doc. 1 at ¶ LXXIX). 40 R. Doc. 38 at 2. 41 Id. at 3. 42 R. Doc. 30 -1 at 7-8. 43 Tel– Phonic Services, 975 F.2d at 1139. 6 dam aged as a result of these statem ents” and “does not identify McKesson by n am e in any of the fraud or m isrepresentation allegations.”44 Plaintiff’s fraud and m isrepresentation allegations against McKesson lack the m inim um particularity requirem ents of Rule 9(b). Plaintiff offers to “am end the Com plaint if this Honorable Court deem s it necessary.”45 III. Mo tio n fo r Le ave to Am e n d Plaintiff’s negligence, fraud, fraudulent concealm ent, and negligent m isrepresentation claim s against McKesson rem ain. As stated above, Plaintiff has m oved “to am end if this Honorable Court deem s it necessary.”46 Pursuant to Federal Rule of Civil Procedure 15(a), which provides the Court should freely grant leave to am end “when justice so requires,” the Court finds it appropriate to allow Plaintiff to file an am ended and restated com plaint. 47 This case is in the early stages of proceedings—and Plaintiff has not yet been afforded the opportunity to amend and restate her com plaint—and thus granting Plaintiff leave to file an am ended and restated com plaint will not cause McKesson prejudice. McKesson’s m otion is also in the n ature of a m otion for a m ore definite statem ent. 48 Accordingly, the Court requires Plaintiff’s am ended and restated com plaint specify the causes of action brought against McKesson, and any allegations against McKesson for fraud, fraudulent concealm ent, or negligent m isrepresentation m ust com ply with the heightened pleading requirem ents of Rule 9(b). 44 R. Doc. 30 -1 at 7. R. Doc. 38 at 6. 46 Id. 47 See Great Plains Trust, 313 F.3d at 329. 48 Fed. R. Civ. P. 12(e). 45 7 IV. GEH C’s an d BD I’s Mo tio n s to D is m is s Plaintiff brings the following causes of action against GEHC and BDI as m anufacturers: (1) strict liability for the failure to warn, (2) negligence, (3) fraud, (4) fraudulent concealm ent, (5) negligent m isrepresentation, 49 and (6) the LPLA. 50 Plaintiff’s first claim , “failure to warn,” is a theory under which a defendant m ay recover in an LPLA cause of action. 51 Plaintiff’s “failure to warn” claim is thus treated as part of Plaintiff’s LPLA claim . A. Mo tio n s to D is m is s Defendant GEHC argues: (1) The LPLA bars recovery against GEHC for any other claim , an d (2) Plaintiff fails to assert a claim under any theory provided by the LPLA. 52 Defendant BDI argues: (1) the LPLA bars recovery against BDI for any other claim , an d (2) Plaintiff’s claim s for (a) fraud, (b) fraudulent concealm ent, and (c) negligent m isrepresentation fail to m eet the heightened pleading requirem ents of Rule 9(b). 53 As to GEHC, Plaintiff responds she “supplied am ple factual allegations showing why the Plaintiff is entitled to relief under the LPLA.”54 Plaintiff agrees “[f]or causes of action arising after the effective date of the LPLA, negligence, strict liability, and breach of express warranty are not available as theories of recovery against a m anufacturer, independent from the LPLA.”55 Plaintiff does not claim she is entitled to recover against GEHC for any claim outside of the LPLA. As to BDI, Plaintiff responds that she “agrees 49 R. Doc. 1. at ¶¶ LXXII-CIII. R. Docs. 36 and 37. 51 LA. REV. STAT. ANN. § 9:280 0 .57. 52 See R. Doc. 33-1 at 3-8 . 53 See R. Doc. 35-1 at 2-12. 54 R. Doc. 36 at 11. 55 Id. at 8. 50 8 with [BDI] that any cause of action outside of the scope of the LPLA . . . m ay not be asserted by Plaintiff, and that dism issal of those claim s, for this defendant, is proper.”56 Accordingly, all causes of action other than the LPLA claim s against GEHC an d BDI are dism issed with prejudice. B. Mo tio n s fo r Le ave to Am e n d In Plaintiff’s oppositions to GEHC’s and BDI’s m otions to dism iss, Plaintiff offers: “Plaintiff will gladly am end her com plaint should the Court so order, to better item ize each allegation under an LPLA statute heading.”57 With respect to Plaintiff’s LPLA claim against GEHC and BDI, Plaintiff is granted leave to file an am ended and restated com plaint to com ply with the pleading requirem ents of Rule 12(b)(6). Because this case is still at a very early stage in the proceedings, the Court finds granting Plaintiff leave to file an am ended and restated com plaint will not cause GEHC or BDI prejudice. GEHC’s and BDI’s m otions also are in the nature of m otions for a m ore definite statem ent. 58 Accordingly, the Court requires Plaintiff’s am ended and restated com plaint should m ust contain specific factual allegations as required by Rule 12(b)(6). CON CLU SION IT IS ORD ERED that McKesson’s, 59 GEHC’s, 60 and BDI’s 61 m otions to dism iss are GRAN TED IN PART. Plaintiff’s claim under the LPLA against McKesson, are D ISMISSED W ITH PREJU D ICE. Plaintiff’s (1) negligence, (2) fraud, (3) fraudulent 56 R. Doc. 37 at 2. R. Docs. 36 at 4 and 37 at 5. 58 Fed. R. Civ. P. 12(e). 59 R. Doc. 30 . 60 R. Doc. 33. 61 R. Doc. 35. 57 9 concealm ent, and (4) negligent m isrepresentation claim s against GEHC and BDI are D ISMISSED W ITH PREJU D ICE. 62 IT IS FU RTH ERED ORD ERED that Plaintiff is GRAN TED leave to file an am ended and restated com plaint to com ply with the pleading requirem ents of Rule 12(b)(6) and, as applicable, the heightened pleading requirem ents of Rule 9(b). Plaintiff shall file an am ended and restated com plaint by no later than Frid ay, Ju ly 12 , 2 0 19 . If Plaintiff files on or before Friday, J uly 12, 20 19 an am ended an d restated com plaint in accordance with the Court’s direction, the m otions to dism iss will be dism issed without prejudice. N e w Orle an s , Lo u is ian a, th is 3 rd d ay o f Ju ly, 2 0 19 . ________________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 62 Plaintiff’s negligence, fraud, fraudulent concealm ent, and negligent m isrepresentation claim s against McKesson rem ain . Plaintiff’s claim under the LPLA against GEH C and BDI rem ain . 10