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Lussan v. Merck Sharp & Dohme Corp.

United States District Court, E.D. Louisiana

June 1, 2017


         SECTION “R” (4)



         Defendants Organon USA, Inc., Merck Sharp & Dohme Corp., and Merck & Co., Inc., (collectively “Merck”) move the Court to dismiss Meryl Lussan's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).[1]Lussan does not oppose the motion. Because Lussan fails to plead a plausible claim under the Louisiana Products Liability Act, the Court dismisses her complaint.

         I. BACKGROUND

         This is a Louisiana law products liability case. According to plaintiff's complaint, defendants design, manufacture, market, and sell Implanon and Nexplanon, both of which are birth control implants designed to prevent pregnancy.[2] Plaintiff alleges that in approximately March of 2011, she had an Implanon implant inserted.[3] Between June and August of 2011, plaintiff allegedly suffered urinary tract infections, lower right abdominal pain, burning, and painful bowel movements.[4] In March of 2012, plaintiff had her Implanon implant replaced with a Nexplanon implant.[5] Plaintiff alleges that over the next two years, she experienced multiple urinary tract infections, bowel issues, lower back pain, significant weight loss, nausea, vomiting, headaches, and other symptoms.[6] Despite these issues, when her implant expired in January, 2015, plaintiff had it replaced with a new Nexplanon implant.[7]

         On January 4, 2017, plaintiff sued Merck in state court, [8] alleging that Implanon 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 made false, misleading, and inaccurate representations, that the implants were “inherently dangerous in a manner that exceeded any purported, inaccurate and/or insufficient warnings, ” and that the implants were unreasonably dangerous in their construction and/or composition.[10]

         On April 10, 2017, Merck removed the case to this Court on the basis of diversity jurisdiction.[11] Defendants now move to dismiss, arguing that plaintiff fails to state a claim for which relief can be granted. Plaintiff has not responded to defendants' motion.


         To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 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 misconduct alleged.” Id. A court must accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff. Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir. 2012) (quoting In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)). 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 complaint must establish more than a “sheer possibility” that the plaintiff's claim is true. Id. It need not contain detailed factual allegations, but it must go beyond labels, legal conclusions, or formulaic recitations of the elements of a cause of action. Id. (citing Twombly, 550 U.S. at 555). In other words, the face of the complaint must contain enough factual matter to raise a reasonable expectation that discovery will reveal evidence of each element of the plaintiff's claim. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009). If there are insufficient factual allegations to raise a right to relief above the speculative level, Twombly, 550 U.S. at 555, or if it is apparent from the face of the complaint that there is an insuperable bar to relief, see Jones v. Bock, 549 U.S. 199, 215 (2007); Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 2007), the claim must be dismissed.


         In Louisiana, the Louisiana Products Liability Act provides the exclusive theories of liability of a manufacturer for damages caused by its product. La. Stat. Ann. § 9:2800.52. A plaintiff may not recover from a manufacturer in tort under any theory of liability that is not set forth in the LPLA. Id.; Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 261-62 (5th Cir. 2002). The statute provides that a manufacturer “shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant or another person or entity.” La. Stat. Ann. § 9:2800.54(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 nonconformity to an express warranty. Id. at § 9:2800.54(B)(1-4). Thus, the LPLA limits the plaintiff to four theories of recovery: construction/composition 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 manufacturer.” Jefferson v. Lead Indus. Ass'n, Inc., 930 F.Supp. 241, 245 (E.D. La. 1996) aff'd, 106 F.3d 1245 (5th Cir. 1997) (citing Automatique New Orleans, Inc. v. U-Select-It, Inc., 1995 WL 491151 at *3 n.2 (E.D. La. ...

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