United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON JUDGE
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
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).
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).
specifically alleges in her petition:
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.
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).
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.
the United States Supreme Court has noted that Rule 12(b)(6)
requires dismissal whenever a claim is ...