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Thomas v. Bracco Diagnostics Inc

United States District Court, W.D. Louisiana, Monroe Division

July 23, 2019





         Before the undersigned Magistrate Judge, on reference from the District Court, is a motion to dismiss pursuant to Rule 12(b)(6) filed by Defendant Bracco Diagnostics Inc. (“BDI”). [doc. # 5]. For reasons explained below, it is recommended that the motion be GRANTED IN PART and DENIED IN PART.


         On April 17, 2019, Plaintiff Jay Thomas filed the above-captioned lawsuit against BDI for injuries he obtained as a result of receiving intravenous injections of MultiHance, a gadolinium-based contrast agent (“GBCA”) manufactured by BDI. (Compl. ¶¶ 1-3, [doc. # 1]).[1]According to Thomas, he received the injections in connection with magnetic resonance imaging (“MRI”) and soon after developed Gadolinium Deposition Disease (“GDD”), a disease that occurs in patients who have received a GBCA, with symptoms consistent with the toxic effects of retained gadolinium. (Id. ¶¶ 13-15).

         Thomas alleges that BDI knew of the toxic effects of MultiHance on patients with normal or near-normal kidney function for years but failed to warn healthcare providers and consumers of the risks associated with GBCAs. (Id. ¶¶ 20, 22-23, 25, 49). Thomas claims he would not have been administrated a GBCA had either he or his healthcare provider been warned of the risks. (Id. ¶ 26).

         In this suit, Thomas asserts the following causes of action: (1) strict liability-failure to warn; (2) negligence; (3) negligent misrepresentation; (4) negligence per se; (5) breach of express warranty; (6) breach of implied warranty; (7) fraudulent misrepresentation and concealment; and (8) civil battery. (Id. at 12-23).

         On May 29, 2019, BDI filed the instant motion to dismiss. [doc. # 5]. BDI contends that (1) Thomas has failed to state a cause of action under the Louisiana Product Liability Act (“LPLA”), La. R.S. 9:2800.51-9:2800.60, which is the exclusive remedy for product defect claims; and (2) Thomas has not pleaded with particularly his causes of action for negligent misrepresentation and fraudulent misrepresentation and concealment under Fed.R.Civ.P. 9(b). [doc. # 5-1].

         Thomas filed an opposition on June 28, 2019. [doc. # 8].[2] BDI filed a reply on July 18, 2019. [doc. # 15].

         Standard of Review

          Federal Rule of Civil Procedure 12(b)(6) sanctions dismissal when a plaintiff fails “to state a claim upon which relief can be granted.” A pleading states a claim for relief when it contains, inter alia, “a short and plain statement . . . showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Circumstances constituting fraud must be stated with particularity. Fed.R.Civ.P. 9(b).

         “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. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when it contains sufficient “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Plausibility requires more than just the “sheer possibility” that a defendant acted unlawfully, id.; it calls for enough facts “to raise a reasonable expectation that discovery will reveal evidence” to support the elements of the claim. Twombly, 550 U.S. at 556. Mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” do not suffice. Id. at 555.

         In deciding a Rule 12(b)(6) motion to dismiss, a court must accept as true all factual allegations, although the same presumption does not extend to legal conclusions. Iqbal, 556 U.S. at 678. A court may permit a well-pleaded complaint to proceed even when “actual proof of those facts is improbable” or recovery is unlikely. Twombly, 550 U.S. at 556. But a court will dismiss a complaint “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct.” Iqbal, 556 U.S. at 679.


         I. Choice of Law

         “[F]ederal courts sitting in diversity apply state substantive law and federal procedural law.” Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996); see Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). This Court applies the choice of law rules of the forum state-Louisiana-to determine which state's law governs. PHI, Inc. v. Rolls-Royce Corp., No. CIV.A. 08-1406, 2010 WL 883794, at *5 (W.D. La. Mar. 9, 2010) (citing Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). Louisiana's choice of law rules are codified in Book IV of the Louisiana Civil Code. Article 3545 provides:

Delictual and quasi-delictual liability for injury caused by a product, as well as damages, whether compensatory, special, or punitive, are governed by the law of this state: (1) when the injury was sustained in this state by a person domiciled or residing in this state; or (2) when the product was manufactured, produced, or acquired in this state and caused the injury either in this state or in another state to a person domiciled in this state.

         In this products liability suit, Thomas alleges that he “paid for, received intravenous MultiHance and was injured and treated for his injuries in Louisiana.” (Compl. ¶ 11). Because he is a Louisiana domiciliary, (see Id. ΒΆ 10), who sustained injuries in Louisiana, Louisiana law governs. To determine Louisiana law, the Court seeks authority primarily in Louisiana's codes and statutes-here, the LPLA-and secondarily ...

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