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Brooks v. Amgen, Inc.

United States District Court, M.D. Louisiana

February 8, 2019

SHEILA BROOKS
v.
AMGEN, INC.

          RULING AND ORDER

          BRIAN A. JACKSON JUDGE

         Before the Court is the Motion to Dismiss, (Doc. 5), filed by Defendant, Amgen, Inc., seeking an order from this Court dismissing Sheila Brooks' claims against it pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). Plaintiff, Sheila Brooks, opposes the motion. (Doc. 17). Defendant filed a Memorandum in Reply. (Doc. 18). Plaintiff also plead an alternative request for leave of court to file an amended petition, or should the Court grant Defendant's motion, that the dismissal be without prejudice to allow Plaintiff the opportunity to refile her complaint. (Doc. 17 at pp. 13-14). Oral argument is not necessary to rule upon this motion. The Court has jurisdiction pursuant to 28 U.S.C. § 1332. For the reasons stated herein, the Motion to Dismiss, (Doc. 5), is GRANTED IN PART and DENIED IN PART

         I. BACKGROUND

         Sheila Brooks ("Plaintiff or "Brooks") commenced the instant action in the Twenty-Third Judicial District, for the Parish of Ascension on May 30, 2018, against Amgen, Inc. ("Defendant" or "Amgen"), seeking damages for injuries allegedly arising out of the injection of Prolia/Denosumab, a drug manufactured by Defendant. (Doc.1-2 at ¶¶ III, IV). On June 27, 2018, Defendant timely removed the action to the United States District Court for the Middle District of Louisiana based on diversity jurisdiction. (Doc. 1). Plaintiffs claims include inadequate warning, manufacturing of a defective product, and defective design. (Doc. 1-2 at ¶¶ X, XI).

         Plaintiffs petition alleges that on May 30, 2017, she received an injection of Prolia/Denosumab in Gonzales, Louisiana, to treat osteoporosis, administered by Dr. Haytham Kawji. (Doc. 1-2 at ¶¶ III, IV). "Within a few weeks", Plaintiff noticed "swelling in and around her mouth" and her "teeth began to come loose and break". (Doc. 1-2 at ¶ V). Plaintiff claims that she sought medical attention and was told that she "had jaw necrosis as a result of the injection of Prolia". Id. Plaintiff alleges that her jaw had "necrotized to the point where her jaw had to be replaced and reconstructed". She underwent surgery and treatment was ongoing at the time she filed her petition. (Doc. 1-2 at ¶ VI). Plaintiff claims that her injuries and resulting damages were caused by the injection of Prolia, which is allegedly manufactured by Defendant. (Doc. 1-2 at ¶¶ VIII, IX).

         Plaintiff specifically alleges in her petition:

X.
Prolia/Denosumab is unreasonably dangerous in its manufacture and design in that the medication is known to cause bone necrosis and in particular jaw necrosis. The condition in Px*olia/Denosumab which causes bone necrosis existed at the time that it was manufactured.
XI.
Because of the known side-effects of jaw necrosis, Defendant, Amgen, Inc., should have warned the users and/or administrators of the serious side-effects of Prolia/Denosumab. Had Sheila Brooks been aware of the potential side-effects from the administration of Prolia/Denosumab, she would have never taken the medication.

(Doc. 1-2 at ¶¶ X, XI).

         II. LEGAL STANDARD

         A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against the legal standard set forth in Rule 8, which requires "a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face'". Ashcroft v. Jqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Determining whether a complaint states a plausible claim for relief [is]. . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. "[F]acial plausibility" exists "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. at 678 (citing Twombly, 550 U.S. at 556). Hence, the complaint need not set out "detailed factual allegations," but something "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action" is required. Twombly, 550 U.S. at 555.

         Further, the United States Supreme Court has noted that Rule 12(b)(6) requires dismissal whenever a claim is ...


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