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Gomilla v. Bracco Diagnostics, Inc.

United States District Court, E.D. Louisiana

July 3, 2019

JUDY GOMILLA, Plaintiff
v.
BRACCO DIAGNOSTICS, INC., et al Defendant

         SECTION: “E” (2)

          ORDER AND REASONS

          SUSIE MORGAN, UNITED STATES DISTRICT JUDGE

         Before the Court is a Motion to Dismiss for Failure to State a Claim filed by Defendants McKesson Corporation and McKesson Medical-Surgical, Inc. (collectively, “McKesson”), [1] a Motion to Dismiss for Failure to State a Claim filed by Defendants GE Healthcare, Inc. and General Electric Company (collectively “GEHC”), [2] and a Motion to Dismiss filed by Defendant Bracco Diagnostics, Inc. (“BDI”).[3] Plaintiff Judy Gomilla opposes each of these motions.[4] In each Opposition, Plaintiff states she will amend the Complaint if the Court deems it necessary.[5] For the reasons that follow, McKesson's, GEHC's, and BDI's motions to dismiss are each GRANTED IN PART, and Plaintiff is GRANTED leave to amend her complaint with respect to any remaining claims.

         BACKGROUND

         Plaintiff alleges she was administered gadolinium-based contrast agents (“GBCAs”).[6] Plaintiff alleges various defendants including McKesson distributed the GBCAs administered to Plaintiff, [7] and various defendants including GEHC and BDI designed, manufactured, marketed, and sold the GBCAs administered to Plaintiff.[8] As a result of being injected with GBCAs, Plaintiff allegedly suffered from symptoms of Gadolinium Deposition Disease (“GDD”), including “skin patchiness, bone and joint pain and cognitive impairment.”[9] Plaintiff filed the present suit on October 31, 2018. McKesson, GEHC, and BDI have individually moved to dismiss each of Plaintiff's claims against them.[10]

         LEGAL STANDARD

         I. Motion to Dismiss Under Rule 12(b)(6)

         Rule 12(b)(6) provides for dismissal of a claim if the claimant fails to set forth a factual allegation in support of its claim that would entitle it to relief (i.e. for “failure to state a claim”).[11] Those factual allegations “must be enough to raise a right to relief above the speculative level.”[12] “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.'”[13] “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.”[14] The Court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the non-moving party, [15] but the Court need not accept as true legal conclusions couched as factual allegations.[16] “Motions to dismiss under Rule 12(b)(6) are viewed with disfavor and are rarely granted.”[17] As a result, the Court should generally “afford plaintiffs at least one opportunity to cure pleading deficiencies before dismissing a case, unless it is clear that the defects are incurable or the plaintiffs advise the court that they are unwilling or unable to amend in a manner that will avoid dismissal.”[18]

         II. Motion to Dismiss Under Rule 9(b)

         Federal Rule of Civil Procedure 9(b) governs pleading standards for fraud claims, including state-law fraud claims.[19] Rule 9(b) also applies to negligent misrepresentation claims “when based on the same alleged facts as a fraud claim.”[20] Rule 9(b) provides: “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.”[21] “What constitutes ‘particularity' will necessarily differ with the facts of each case and hence the Fifth Circuit has never articulated the requirements of Rule 9(b) in great detail.”[22] The Fifth Circuit “interprets Rule 9(b) strictly, requiring the plaintiff to specify the statements contended to be fraudulent, identify the speaker, state when and where the statements were made, and explain why the statements were fraudulent.”[23] “At a minimum, Rule 9(b) requires allegations of the particulars of time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.”[24] A plaintiff's failure to meet Rule 9(b)'s heightened pleading requirements “should not automatically or inflexibly result in dismissal of the complaint, ” but rather a plaintiff should be granted leave to amend unless amendment would be futile or the plaintiff has already been granted opportunities to amend.[25]

         LAW AND ANALYSIS

         I. The LPLA

         The LPLA “establishes the exclusive theories of liability for manufacturers for damage caused by their products.”[26] The four theories under which a plaintiff may recover in an LPLA action are that the product in question was unreasonably dangerous: (1) in construction or composition[27]; (2) in design[28]; (3) because of inadequate warning[29]; or (4) because of nonconformity to an express warranty.[30]

         A few applicable limitations on the exclusivity provision of the LPLA warrant brief discussion. First, the LPLA applies only to manufacturers. “Manufacturer” is defined as “a person or entity who is in the business of manufacturing a product for placement into trade or commerce.”[31] Second, a plaintiff is limited to the theories of liability under the LPLA only when making a claim for “damages” as defined by the LPLA. Under the LPLA, “damage”:

[M]eans all damage caused by a product, including survival and wrongful death damages, for which Civil Code Article 2315, 2315.1 and 2315.2 allow recovery. “Damage” includes damage to the product itself and economic loss arising from a deficiency in or loss of us of the product only to the extent that Chapter 9 of Title VII of Book III of the Civil Code, entitled “Redhibition, ” does not allow recovery for such damage or economic loss.[32]

         The LPLA does not preclude damages for breach of contract, including “breach of contract based fraud pursuant to article 1953.”[33]

         II. McKesson's Motion to Dismiss

         Plaintiff brings the following claims against McKesson as a distributor: (1) strict liability for failure to warn, (2) negligence, (3) fraud, (4) fraud by concealment, (5) negligent misrepresentation, [34] and (6) the LPLA.[35]

         A. Motion to Dismiss Under Rule 12(b)(6)

         1. LPLA

         McKesson moves to dismiss under Rule 12(b)(6) Plaintiff's claims under the LPLA.[36] Plaintiff “agrees with defendant that any cause of action outside of negligence may not be asserted by Plaintiff, and that dismissal of those claims, for this defendant, is proper.”[37] Thus, to the extent Plaintiff brings an LPLA claim against McKesson as a distributor, this claim is dismissed with prejudice, with Plaintiff's consent.

         2. Negligence

         McKesson moves to dismiss under Rule 12(b)(6) Plaintiff's negligence claim. McKesson argues its liability as a distributor is limited in Louisiana: “‘[A] non-manufacturer/seller can be held liable for damages in tort only if he knew or should have known that the product was defective and failed to declare the defect to the purchaser.'”[38]McKesson argues: “The only allegation of breach in line with this standard that is applicable to McKesson as a distributor is that ‘Defendants failed to exercise ordinary care in the labeling of GBCAs.'”[39]

         Plaintiff agrees “McKesson is a distributor, ” and “[a]s a distributor . . . and not a manufacturer, a non-manufacturing seller who does not vouch for the product by holding it out as his own does not incur strict manufacturer's liability under the [LPLA], but is responsible for damages in tort only if he knew or should have known that the product sold was defective, and failed to declare it.”[40] Plaintiff alleges “the product sold by the manufacturer Co-Defendants was dangerous due to the defective nature of the product, that [t]his dangerous and defective condition was known and/or knowable by McKesson, but that McKesson sold the manufacturer's product despite that knowledge.”[41]

         B. Motion to Dismiss Under Rule 9(b)

         McKesson moves to dismiss under Rule 9(b) Plaintiff's claims for: (1) fraud, (2) fraud by concealment, and (3) negligent misrepresentation.[42] “At a minimum, Rule 9(b) requires allegations of the particulars of time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.”[43] McKesson argues Plaintiff's complaint “does not identify when or where the allegedly fraudulent statements were made, who made them on McKesson's behalf, what these statements were, how she relied on them, or how she was damaged as a result of these statements” and “does not identify McKesson by name in any of the fraud or misrepresentation allegations.”[44]

         Plaintiff's fraud and misrepresentation allegations against McKesson lack the minimum particularity requirements of Rule 9(b). Plaintiff offers to “amend the Complaint if this Honorable Court deems it necessary.”[45]

         III. Motion for Leave to Amend

         Plaintiff's negligence, fraud, fraudulent concealment, and negligent misrepresentation claims against McKesson remain. As stated above, Plaintiff has moved “to amend if this Honorable Court deems it necessary.”[46] Pursuant to Federal Rule of Civil Procedure 15(a), which provides the Court should freely grant leave to amend “when justice so requires, ” the Court finds it appropriate to allow Plaintiff to file an amended and restated complaint.[47] This case is in the early stages of proceedings-and Plaintiff has not yet been afforded the opportunity to amend and restate her complaint-and thus granting Plaintiff leave to file an amended and restated complaint will not cause McKesson prejudice.

         McKesson's motion is also in the nature of a motion for a more definite statement.[48] Accordingly, the Court requires Plaintiff's amended and restated complaint specify the causes of action brought against McKesson, and any allegations against McKesson for fraud, fraudulent concealment, or negligent misrepresentation must comply with the heightened pleading requirements of Rule 9(b).

         IV. GEHC's and BDI's ...


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