United States District Court, E.D. Louisiana
ORDER AND REASONS
L. C. FELDMAN UNITED STATES DISTRICT JUDGE.
the Court is the defendant's motion to dismiss for
failure to state a claim. For the following reasons, the
motion is GRANTED in part and DENIED in part. The motion is
GRANTED as to any non-LPLA claims and the express warranty
claim the plaintiff pleads. The motion is DENIED as to LPLA
claims for defective design, defective composition or
construction, and inadequate warning.
Donald filed this lawsuit against AstraZeneca Pharmaceuticals
LP and AstraZeneca LP for manufacturing a drug the plaintiff
ingested, which allegedly caused her kidney injuries.
plaintiff alleges that she ingested the drug Nexium, which
AstraZeneca manufactures. In her complaint, the plaintiff
brings claims for: strict product liability, intentional
infliction of emotional distress, negligent infliction of
emotional distress, fraud, negligence, negligent
misrepresentation, fraudulent misrepresentation, and breaches
of express and implied warranties.
defendants move the Court to dismiss the plaintiff's
claims on numerous grounds. First, the defendants contend
that the Louisiana Products Liability Act (LPLA) is the
exclusive remedy and precludes the plaintiff's claims for
intentional infliction of emotion distress, negligent
infliction of emotional distress, fraud, negligence,
negligent misrepresentation, fraudulent misrepresentation,
express and implied warranties. Additionally, the defendants
contend that the plaintiff failed to plead her claim for
fraud with particularity under Rule 9 and that she fails to
state claims upon which relief can be granted under Rule 8.
Finally, the defendants contend that the plaintiff failed to
plead any claims allowed under the LPLA with specificity. The
Court considers these contentions in turn.
Louisiana Products Liability Act
Court first considers the applicability of the LPLA to the
plaintiff's claims and whether any of the claims must be
dismissed as precluded under the LPLA.
LPLA provides the “exclusive remedy for products
liability suits” under Louisiana law. Demahy v.
Schwartz Pharma, Inc., 702 F.3d 177, 182 (5th Cir.
2012); see also La. Stat. Ann. § 9:2800.52.
“In order to maintain a successful products liability
action under the LPLA, a plaintiff must establish that the
defendant is the manufacturer of the product; the
claimant's damage was proximately caused by a
characteristic of the product; this characteristic made the
product unreasonably dangerous; and the claimant's damage
arose from a reasonably anticipated use of the product.
Id. § 9:2800.54(A). A plaintiff may establish a
product was unreasonably dangerous under one of four
theories: (1) the product's construction or composition
is defective, (2) the product's design is defective, (3)
the product's warnings are inadequate, or (4) by showing
a breach of express warranty. Id. §
9:2800.54(B). “. . . [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 manufacturer, independent
from the LPLA. Stahl v. Novartis Pharm., 283 F.3d
254, 260 (5th Cir. 2002).
the plaintiff's claims for negligent and intentional
infliction of emotion distress, fraud,  negligence,
negligent misrepresentation, intentional misrepresentation,
express warranty, implied warranties, and express warranties
are barred. Additionally, the plaintiff's claims for
punitive or exemplary damages under Louisiana law are barred.
See La. Civ. Code Arts. 2315.3, 2315.4, 2315.7,
2315.8. The Court now considers whether the plaintiff alleges
claims under the LPLA that are pleaded sufficiently to
survive this motion to dismiss.
Motion to Dismiss Legal Standard
12(b)(6) of the Federal Rules of Civil Procedure allows a
party to move for dismissal of a complaint for failure to
state a claim upon which relief can be granted. Such a motion
is rarely granted because it is viewed with disfavor. See
Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 247
(5th Cir. 1997) (quoting Kaiser Aluminum & Chem.
Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045,
1050 (5th Cir. 1982)).
Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
pleading must contain a "short and plain statement of
the claim showing that the pleader is entitled to
relief." Ashcroft v. Iqbal, 556 U.S. 662,
678-79 (2009) (citing Fed.R.Civ.P. 8). "[T]he pleading
standard Rule 8 announces does not require 'detailed
factual allegations, ' but it demands more than an