United States District Court, E.D. Louisiana
ORDER AND REASONS
ZAINEY UNITED STATES DISTRICT JUDGE
following motion is before the Court: Motion to
Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)
(Rec. Doc. 8) filed by Defendant, GlaxoSmithKline,
LLC. Plaintiffs, Zenobia Doucette and Elton Doucette, oppose
the motion. The motion, noticed for submission on September
20, 2017, is before the Court on the briefs without oral
February 2016, plaintiff Zenobia Doucette was prescribed
mupirocin (brand name Bactroban®). (Rec. Doc. 1, Comp.
¶ 17). She filled the prescription. On August 5, 2017,
Ms. Doucette received a letter informing her that the drug
was being recalled due to contamination during the
manufacturing process. (Id. ¶ 18). Ms. Doucette
claims significant personal injuries in light of the
contaminated drug. Mr. Doucette claims damages for loss of
consortium. (Id. ¶ 29).
instant motion Defendant GlaxoSmithKline, the drug's
manufacturer, moves to dismiss three of Plaintiffs' four
theories of liability under the Louisiana Products Liability
Act (“LPLA”), La. R.S. § 9:2800.51, et
seq. Defendant contends that the factual allegations do
not support a claim for liability under any LPLA theory other
than for defect in construction or composition.
also moves to dismiss any claims based on non-LPLA grounds
(with the exception of redhibition). Defendant argues that
the LPLA provides the exclusive theories of liability vis
à vis a manufacturer.
context of a motion to dismiss the Court must accept all
factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiff's favor.
Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232
(5th Cir. 2009) (citing Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308 (2007);
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974);
Lovick v. Ritemoney, Ltd., 378 F.3d 433, 437
(5th Cir. 2004)). However, the foregoing tenet is
inapplicable to legal conclusions. Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949 (2009). Thread-bare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice. Id.
(citing Bell Atlantic Corp. v. Twombly, 550, U.S.
544, 555 (2007)).
central issue in a Rule 12(b)(6) motion to dismiss is
whether, in the light most favorable to the plaintiff, the
complaint states a valid claim for relief. Gentilello v.
Rege, 627 F.3d 540, 544 (5th Cir. 2010)
(quoting Doe v. MySpace, Inc., 528 F.3d 413, 418
(5th Cir. 2008)). To avoid dismissal, a plaintiff
must plead sufficient facts to “state a claim for
relief that is plausible on its face.” Id.
(quoting Iqbal, 129 S.Ct. at 1949). “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 misconduct
alleged.” Id. The Court does not accept as
true “conclusory allegations, unwarranted factual
inferences, or legal conclusions.” Id.
(quoting Plotkin v. IP Axess, Inc., 407 F.3d 690,
696 (5th Cir. 2005)). Legal conclusions must be
supported by factual allegations.
Id (quoting Iqbal, 129 S.Ct. at 1950).
Louisiana, the LPLA limits a plaintiffs theories of recovery
against a manufacturer of an allegedly defective product to
those established by the LPLA. Stahl v. Novartis Pharm.
Corp., 283 F.3d 254, 261-62 (5th Cir. 2002)
(citing La. R.S. § 9:2800.52). Therefore,
Defendant's motion will be GRANTED as to any claims based
on non-LPLA legal theories, with the exception of res ipsa
loquitur, which in some limited circumstances may apply to
motion will be DENIED, however, as to any LPLA theories of
recovery. Although the Court agrees that the factual
allegations in the Complaint strongly suggest that the defect
in construction/composition theory of the LPLA is most
applicable in this case, the Court is persuaded that
Defendant's challenges to the viability of any other LPLA
theories would be best handled via a well-supported motion
for summary judgment once discovery is complete.
and for the foregoing reasons;
IS ORDERED that the Motion to Dismiss
Pursuant to Federal Rule of Civil Procedure 12(b)(6) (Rec.
Doc. 8) filed by Defendant, GlaxoSmithKline, LLC is