McFarland v. APP Pharmaceuticals LLC, et al, No. 2:2010cv01746 - Document 142 (W.D. Wash. 2011)
Court Description: ORDER GRANTING MOTIONS TO DISMISS WITH LEAVE TO AMEND ; pltfs must file an amended complaint within 30 days by Judge Robert S. Lasnik.(RS)
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McFarland v. APP Pharmaceuticals LLC, et al Doc. 142 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 LAUREL McFARLAND, et al., 10 Plaintiff, Case No. C10-1746RSL 11 12 v. APP PHARMACEUTICALS, LLC, et al., 13 ORDER GRANTING MOTIONS TO DISMISS WITH LEAVE TO AMEND Defendants. 14 15 16 I. INTRODUCTION 17 This matter comes before the Court on motions to dismiss filed by several defendants in 18 this case. Numerous other defendants “joined” in the motions to dismiss, and because the same 19 legal issues apply to all defendants, the Court will consider the motions as if they had been filed 20 by all defendants. Plaintiffs, Laurel McFarland and her husband, contend that Mrs. McFarland 21 (“plaintiff”) was injured by the drug heparin, which was allegedly manufactured, sold and/or 22 supplied by defendants.1 23 24 For the reasons set forth below, the Court grants defendants’ motions and grants plaintiffs leave to amend. 25 26 27 28 1 Because the matter can be decided based on the parties’ memoranda, the complaint, and the balance of the record, plaintiffs’ request for oral argument is denied. ORDER GRANTING MOTIONS TO DISMISS WITH LEAVE TO AMEND - 1 Dockets.Justia.com II. DISCUSSION 1 2 A. Background Facts. On October 24, 2007, plaintiff was admitted to Overlake Hospital Medical Center with a 3 4 superficial femoral artery and popliteal occlusion. During the course of her hospital stay, 5 plaintiff was administered multiple doses of heparin over the course of approximately one week. 6 Heparin is used to prevent the formation of clots and the extension of existing clots in the blood. 7 Complaint at ¶ 24. After receiving the drug, plaintiff’s platelet counts dropped dramatically. Id. 8 at ¶ 32. On November 1, 2007, plaintiff was diagnosed with heparin induced thrombocytopenia 9 (“HIT”). Id. As an alleged complication of HIT, plaintiff subsequently underwent a below the 10 knee amputation of her right leg and required prolonged rehabilitation. Id. at ¶¶ 34, 35. 11 Plaintiffs filed their lawsuit before this Court on October 28, 2010. Plaintiffs assert 12 claims for strict liability/failure to warn, strict liability/design defect, negligence, breach of 13 express and implied warranties, and negligence. Rodney McFarland asserts a claim for loss of 14 consortium. 15 Plaintiffs have asserted their claims against 18 named defendants and 75 fictitious 16 defendants. The complaint alleges that “each” of the defendants manufactured the heparin that 17 caused her injuries. Complaint at ¶ 36. The complaint also alleges that each of the 93 18 defendants “separately manufactured, marketed, distributed, wholesaled, and/or sold several 19 forms of heparin throughout the United States, including the State of Washington, even though 20 each Defendant was aware of the risks of a serious side-effect associated with its product known 21 as heparin-induced thrombocytopenia (‘HIT’).” Id. at ¶ 25. After filing the lawsuit, plaintiff has 22 voluntarily dismissed her claims against seven named defendants. 23 B. 24 Dismissal Standard. Defendants have filed a 12(b)(6) motion for failure to state a claim upon which relief can 25 be granted. The complaint should be liberally construed in favor of the plaintiff and its factual 26 allegations taken as true. See, e.g., Oscar v. Univ. Students Co-Operative Ass’n, 965 F.2d 783, 27 28 ORDER GRANTING MOTIONS TO DISMISS WITH LEAVE TO AMEND - 2 1 785 (9th Cir. 1992). The Supreme Court has explained that “when allegations in a complaint, 2 however true, could not raise a claim of entitlement to relief, this basic deficiency should be 3 exposed at the point of minimum expenditure of time and money by the parties and the court.” 4 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007) (internal citation and quotation 5 omitted). A complaint must include enough facts to state a claim for relief that is “plausible on 6 its face” and to “raise a right to relief above the speculative level.” Id. at 555. The complaint 7 need not include detailed factual allegations, but it must provide more than “a formulaic 8 recitation of the elements of a cause of action.” Id. A claim is facially plausible when plaintiff 9 has alleged enough factual content for the court to draw a reasonable inference that the 10 defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 11 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 12 statements, do not suffice.” Id. at 1949. 13 C. Analysis. 14 1. WPLA Preemption, Failure to State a Claim. 15 As plaintiff essentially concedes, all of her common law causes of action have been 16 abrogated by statute. Washington law recognizes only a single product liability cause of action 17 under the Washington Product Liability Act, (“WPLA”), RCW 7.72.010, which preempts 18 common law claims based on injuries caused by allegedly harmful products. See, e.g., 19 Crittenden v. Fibreboard Corp., 58 Wn. App. 649, 656 n.9 (1990) (stating that there is a “single 20 product liability claim” in Washington); Washington Water Power Co. v. Graybar Elec. Co., 112 21 Wn.2d 847, 855 n.4 (1989) (holding that the “WPLA preempts the variety of common law 22 causes of action for harm caused by product defects”). Because plaintiff’s claims have been 23 preempted and she failed to allege a WPLA claim, her claims should be dismissed. 24 Defendants contend that even if plaintiffs had pled a WPLA claim, it would be subject to 25 dismissal as inadequately pled. The complaint alleges the doses and containers of the heparin 26 administered to plaintiff, but does not specifically identify which, if any, of the defendants 27 28 ORDER GRANTING MOTIONS TO DISMISS WITH LEAVE TO AMEND - 3 1 manufactured or was otherwise responsible for the product. Complaint at ¶ 29 (contending that 2 plaintiff “was administered doses of heparin including, but not limited to, one or more of the 3 following products: Heparin Injection 1,000U/ml from 10 ml vials . . . .”). Plaintiff fails to 4 allege that her injury was caused by any specific defendant’s product. Instead, she alleges that 5 all of the 93 defendants “manufactured, supplied and/or sold” all of the doses she received, and 6 that all of those administrations caused her injury. Id. at ¶ 31. Those vague and broad 7 allegations fail to meet the plausibility standard: 11 By suing [twenty-two manufacturers], the Complaint at most alleges that the individual defendants theoretically could have been the one who manufactured the [product] used following each plaintiff’s surgery. But, the Complaint never specifies that any one of the defendants, as opposed to the 21 other defendants, caused each plaintiff’s claimed injury. As such, plaintiffs plead nothing more than the sheer possibility that any particular defendant might have manufactured the product that allegedly injured each plaintiff. This sort of speculative pleading is not permitted under the plain text of Rule 8. 12 Adams v. I-Flow Corp., 2010 U.S. Dist. LEXIS 33066 at *3 (C.D. Cal. Mar. 30, 2010); Peterson 13 v. Breg, 2010 U.S. Dist. LEXIS 48995 at *7 (D. Ariz. April 29, 2010) (holding that it “is not 14 permissible under the plain text of Rule 8” to merely assert that one or more of the defendants 15 manufactured the pumps or anesthetics that allegedly caused plaintiffs’ injuries); Timmons v. 16 Linvatec Corp., 263 F.R.D. 582 (C.D. Cal. 2010). Similarly, plaintiff’s claims must be 17 dismissed as speculative for pleading nothing more than the possibility that each individual 18 defendant, as opposed to the 92 others, may be responsible for the allegedly defective product 19 that caused her injuries. 8 9 10 20 In the cases on which plaintiffs rely, the plaintiffs claimed that one, or at the most three, 21 named defendants’ products caused their injuries. See, e.g., Stanger v. APP Pharms., LLC, 2010 22 U.S. Dist. LEXIS 126876 at *7-8 (D.N.J. Nov. 30, 2010); Baker v. APP Pharms., LLC, 2010 23 U.S. Dist. LEXIS 126037 (D.N.J. Nov. 30, 2010). Those allegations are plausible, whereas 24 alleging that 93 defendants all manufactured, distributed, and/or sold all of the products that 25 caused all of plaintiff’s injuries is not plausible. In addition, plaintiff’s allegations are internally 26 inconsistent. The complaint alleges that “each” of the defendants manufactured the heparin that 27 28 ORDER GRANTING MOTIONS TO DISMISS WITH LEAVE TO AMEND - 4 1 caused her injuries, Complaint at ¶¶ 36, 37, but also alleges that each of the 93 defendants 2 “separately manufactured, marketed, distributed, wholesaled, and/or sold” heparin. Id. at ¶ 25. 3 The inconsistencies between those allegations, which are not pled in the alternative, further 4 highlight the implausibility of plaintiff’s allegations. 5 Finally, plaintiff’s allegations fail to include essential elements of a claim for breach of 6 express or implied warranties. Specifically, plaintiff has not alleged that she was in privity with 7 any of the defendants. Nor has she alleged that any of the defendants made any express 8 representations to plaintiffs. Plaintiff did not respond to the arguments about the inadequacy of 9 her warranty claims and essentially concedes their deficiencies. 10 For all of those reasons, plaintiff’s claims are inadequately pled and must be dismissed. 11 Because Mrs. McFarland’s claims fail, Mr. McFarland’s loss of consortium must also be 12 dismissed. See, e.g., Tillett v. City of Bremerton, 2011 U.S. Dist. LEXIS 588 at *38 (W.D. 13 Wash. Jan. 3, 2011) (“Liability to the ‘impaired’ spouse is still an element to loss of 14 consortium.”). 15 2. 16 Plaintiffs request leave to amend if the Court is inclined to dismiss their allegations. A Leave to Amend. 17 court should grant leave to amend “unless it determines that the pleading could not possibly be 18 cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). 19 Rather than granting plaintiffs leave to amend, defendants urge the Court to dismiss plaintiffs’ 20 claims with prejudice. 21 Defendants argue that even if plaintiffs had asserted a WPLA claim, it would be time 22 barred. This Court, exercising diversity jurisdiction, applies the state statute of limitations. See, 23 e.g., Bancorp Leasing & Fin. Corp. v. Augusta Aviation Corp., 813 F.2d 272, 274 (9th Cir. 24 1987). Under the WPLA, a plaintiff must bring a cause of action within three years from when 25 he or she discovered “the harm and its cause.” RCW 7.72.060(3). This is not a latent injury 26 case. Plaintiff knew of the harm and its cause, heparin, by November 1, 2007 when she was 27 28 ORDER GRANTING MOTIONS TO DISMISS WITH LEAVE TO AMEND - 5 1 diagnosed with HIT. As defendant APP Pharmaceuticals, LLC notes, the name of the condition, 2 heparin induced thrombocytopenia, leaves no doubt as to its cause. Nevertheless, plaintiff failed 3 to file and serve her lawsuit within three years and ninety days after that date.2 Based on those 4 facts, defendants contend that all of plaintiffs’ claim are barred. 5 In “ordinary” personal injury cases, “the general rule is that the cause of action ‘accrues’ 6 at the time the act or omission occurs.” White v. Johns-Manville Corp., 103 Wn.2d 344, 348 7 (1985). However, under the “discovery rule,” the cause of action does not accrue until the 8 “plaintiff knew or should have known all of the essential elements of the cause of action.” Id. 9 In Orear v. Int’l Paint Co., 59 Wn. App. 249, 255 (1990), the court held that “knowledge or 10 imputed knowledge of a particular defendant’s identity is necessary for the plaintiff’s cause of 11 action against that defendant to accrue.” The court noted, “A person injured by a defective 12 product simply cannot be said to have discovered the cause of injury in a legally enforceable 13 sense until he or she discovers who manufactured or supplied the product or is otherwise 14 responsible for the injury.” Id. at 257 (emphasis in original). Although Orear involved a latent 15 injury from asbestos, the court did not limit its holding to latent injury cases. Therefore, in this 16 case, plaintiff’s cause of action did not accrue until she knew “or with reasonable diligence 17 should have known” that defendants may have been the responsible parties. Id. At this point, 18 there is simply no evidence from which the Court can determine when plaintiff knew or should 19 have known that these defendants may have been responsible for her injuries. For that reason, 20 21 22 23 24 25 26 27 28 2 The three year statute of limitations is tolled if plaintiffs serve their complaint within 90 days after filing. RCW 4.16.170 (requiring that “one or more of the defendants . . . be served personally, or commence service by publication within ninety days from the date of filing of the complaint;” otherwise, “the action shall be deemed to have not commenced for the purposes of tolling the statute of limitations.”). Undisputedly, plaintiffs did not serve the complaint on any defendant within ninety days of filing, so the three year statute of limitations was not tolled for an additional ninety days. ORDER GRANTING MOTIONS TO DISMISS WITH LEAVE TO AMEND - 6 1 the Court will not find, at this point, that plaintiff’s claims are time barred.3 Therefore, the Court 2 will grant plaintiffs leave to amend to specifically allege which defendant manufactured the 3 product(s) that caused her injuries. 4 However, plaintiffs’ claim for punitive damages cannot be saved by repleading because 5 the WPLA does not provide for punitive damages. See, e.g., McKee v. AT&T Corp., 164 6 Wn.2d 372, 401 (2008) (explaining that punitive damages are not available unless specifically 7 allowed by statute). Therefore, plaintiffs’ claim for punitive damages is dismissed with 8 prejudice. III. CONCLUSION 9 10 For all of the foregoing reasons, the Court GRANTS defendants’ motions to dismiss (Dkt. 11 #58, 70, 71, 73, 84, 85, 86, 94, 101, 114, and 136), dismisses plaintiffs’ claim for punitive 12 damages with prejudice, dismisses the other claims without prejudice, and grants plaintiffs leave 13 to amend. Plaintiffs must file an amended complaint within thirty days of the date of this order. 14 15 DATED this 13th day of June, 2011. 16 17 18 A Robert S. Lasnik 19 United States District Judge 20 21 22 23 24 25 26 27 28 3 Because the Court does not find that plaintiff’s claims are time barred, it need not address her argument that the statute of limitations was tolled while she was allegedly incapacitated. ORDER GRANTING MOTIONS TO DISMISS WITH LEAVE TO AMEND - 7
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