United States District Court, W.D. Louisiana, Monroe Division
A. DOUGHTY, JUDGE
REPORT AND RECOMMENDATION
L. HAYES, UNITED STATES MAGISTRATE JUDGE
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.
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]).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).
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).
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).
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].
filed an opposition on June 28, 2019. [doc. #
BDI filed a reply on July 18, 2019. [doc. # 15].
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).
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.
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.
Choice of Law
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.
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.
¶ 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 ...