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, are two motions to dismiss for failure to
state a claim upon which relief can be granted - the first
[doc. # 5] filed by defendant, McKesson Corporation, and the
second [doc. # 8] filed by defendants, General Electric
Company and GE Healthcare, Inc. (collectively,
“GEHC”). For reasons explained below, it is
recommended that the motions be GRANTED-IN-PART and
April 17, 2019, plaintiff Ceasar Smith filed the
above-captioned lawsuit against defendants, General Electric
Company; GE Healthcare, Inc.; GE Healthcare AS; and McKesson
Corporation (“McKesson”), for injuries he
sustained following receipt of intravenous injections of
Omniscan, a gadolinium-based contrast agent
(“GBCA”) manufactured by GEHC and distributed by
McKesson. (Compl. ¶¶ 1-15, [doc. # 1]). According
to Smith, he received the Omniscan injections in connection
with several magnetic resonance imaging (“MRI”)
scans 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., ¶¶
alleged that the Omniscan he received was manufactured by the
“Defendants, ” which he defined as all
the defendants in the suit. Id., ¶¶ 12,
24. Smith further alleged that, for years, defendants knew,
or should have known of the toxic effects of Omniscan on
patients with normal or near-normal kidney function, yet they
failed to warn healthcare providers and consumers of the
risks associated with GBCAs. Id. ¶¶ 25-31.
Smith claims that he would not have received a GBCA, and
would not have been afflicted with GDD, had he and/or his
healthcare provider been warned of the risks. Id.
complaint asserted 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., ¶¶ 58-133. He seeks recovery
for compensatory and punitive damages, plus attorney's
fees and costs.
29, 2019, McKesson filed the instant motion to dismiss for
failure to state a claim upon which relief can be granted.
[doc. # 5]. McKesson contends that (1) plaintiffs allegations
are conclusory and fail to meet the requisite pleading
standard; (2) plaintiffs claims premised on failure to warn
are barred by federal preemption; and (3) plaintiff failed to
plead his causes of action for negligent misrepresentation
and fraudulent misrepresentation/concealment with
particularity under Fed.R.Civ.P. 9(b).
21, 2019, GEHC filed their own motion to dismiss for failure
to state a claim upon which relief can be granted. [doc. #
8]. GEHC argued that (1) none of plaintiff's causes of
action are permissible outside of the Louisiana Products
Liability Act (“LPLA”), which otherwise provides
the exclusive remedy against a manufacturer for damages
caused by its product; and (2) even if plaintiff's claims
were asserted under the LPLA, the allegations remain
conclusory and fail to meet the requisite pleading standard.
filed his oppositions to defendants' motions to dismiss
on June 28 and July 3, 2019. [doc. #s 13 & 16]. Movants
filed their reply briefs on July 10 and 16, 2019. [doc. #s 19
& 22]. Thus, the matter is ripe.
Federal Rules of Civil Procedure sanction dismissal where the
plaintiff fails “to state a claim upon which relief can
be granted.” Fed.R.Civ.P. 12(b)(6). A pleading states a
claim for relief when, inter alia, it contains a
“short and plain statement . . . showing that the
pleader is entitled to relief . . .” Fed.R.Civ.P.
withstand a motion to dismiss, Aa 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, 129 S.Ct. 1937,
1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 127 S.Ct. 1955 (2007)). A claim is facially
plausible when it contains sufficient factual content for the
court “to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. Plausibility does not equate to
possibility or probability; it lies
somewhere in between. See Iqbal, supra. Plausibility
simply calls for enough factual allegations to raise a
reasonable expectation that discovery will reveal evidence to
support the elements of the claim. See Twombly, 550
U.S. at 556, 127 S.Ct. at 1965.
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.” Iqbal, supra (citation omitted). A
well-pleaded complaint may proceed even if it strikes the
court that actual proof of the asserted facts is improbable,
and that recovery is unlikely. Twombly, supra.
Furthermore, “[t]he notice pleading requirements of
Federal Rule of Civil Procedure 8 and case law do not require
an inordinate amount of detail or precision.”
Gilbert v. Outback Steakhouse of Florida Inc., 295
Fed.Appx. 710, 713 (5th Cir. Oct. 10, 2008)
(unpubl.) (citations and internal quotation marks omitted).
“Specific facts are not necessary; the statement need
only 'give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.'”
Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007)
(quoting Bell Atl., 127 S.Ct. at 1958). The
complaint need not even “correctly specify the legal
theory” giving rise to the claim for relief.
Gilbert, supra. Although the court must accept as true
all factual allegations set forth in the complaint, the same
presumption does not extend to legal conclusions. Iqbal,
supra. A pleading comprised of “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action” does not satisfy Rule 8.
Id. In addition, a court is compelled to dismiss an
otherwise well-pleaded claim if it is premised upon an
invalid legal theory. Neitzke v. Williams, 490 U.S.
319, 109 S.Ct. 1827 (1989).
9(b) requires that circumstances constituting fraud or
mistake be alleged with particularity. Fed.R.Civ.P. 9(b). The
particularity demanded by Rule 9(b) supplements Rule
8(a)'s pleading requirement. U.S. ex rel. Grubbs v.
Kanneganti, 565 F.3d 180, 185 (5th Cir.
2009). Allegations of fraud under Louisiana law asserted in
federal court implicate the heightened pleading requirements
of Federal Rule of Civil Procedure 9(b). Unimobil 84,
Inc. v. Spurney, 797 F.2d 214, 217 (5th Cir.
1986); Conerly Corp. v. Regions Bank, 2008 WL
4975080 (E.D. La. Nov. 20, 2008). However, “[m]alice,
intent, knowledge, and other conditions of a person's
mind may be alleged generally.” Fed.R.Civ.P. 9(b). What
constitutes sufficient particularity for Rule 9(b) varies
with the facts of each case. Guidry v. Bank of
LaPlace, 954 F.2d 278, 288 (5th Cir. 1992).
At minimum, however, Rule 9(b) requires a plaintiff pleading
fraud to “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.” Herrmann Holdings Ltd. v. Lucent
Technologies Inc., 302 F.3d 552, 564-565 (5th
Cir. 2002) (quoted sources and internal quotation marks
omitted). Nonetheless, the “‘time, place,
contents, and identity' standard is not a straitjacket
for Rule 9(b).” Grubbs, 565 F.3d at 190.
considering a motion to dismiss, courts generally are limited
to the complaint and its proper attachments. Dorsey v.
Portfolio Equities, Inc., 540 F.3d 333, 338
(5th Cir. 2008) (citation omitted). However,
courts may rely upon “documents incorporated into the
complaint by reference, and matters of which a court may take
judicial notice” B including public records.
Dorsey, supra; Norris v. Hearst Trust, 500
F.3d 454, 461 n9 (5th Cir. 2007) (citation
omitted) (proper to take judicial notice of matters of public
record). Furthermore, “[d]ocuments that a defendant
attaches to a motion to dismiss are considered part of the
pleadings if they are referred to in the plaintiff's
complaint and are central to his claim.” Collins v.
Morgan Stanley Dean Witter, 224 F.3d 496, 498-499
(5th Cir. 2000) (citations and internal quotation
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:
[d]elictual 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, Smith alleged that he paid for and
was injected with Omniscan in Louisiana. (Compl. ¶ 17).
He suffered injury and was treated for Gadolinium Deposition
Disease in Louisiana. Id. Therefore, because he is a
Louisiana domiciliary (Compl., ¶ 16), who sustained
injuries in Louisiana, his claims are governed by Louisiana
determine Louisiana law, “courts must begin every legal
analysis by examining primary sources of law: the State's
Constitution, codes, and statutes. Jurisprudence, even when
it rises to the level of jurisprudence constante, is
a secondary law source in Louisiana.” Ayala v.
Enerco Grp., Inc., 569 Fed.Appx. 241, 246 (5th Cir.
2014) (citation omitted). Thus, this court must look first to
the LPLA, and only secondarily to judicial decisions (i.e.,
decisions of the Louisiana Supreme Court). Id.,
see also Moore v. State Farm Fire & Casualty
Co., 556 F.3d 264, 269 (5th Cir. 2009)
Louisiana law, the LPLA “establishes the exclusive
theories of liability for manufacturers for damage caused by
their products, ” and a “claimant may not recover
from a manufacturer for damage caused by a product on the
basis of any theory of liability that is not set forth
in” the LPLA. La. R.S. 9:2800.52.
routinely dismiss claims against manufacturers that do not
arise under the LPLA. See e.g., Jefferson v.
Lead Indus. Ass'n, Inc., 106 F.3d 1245, 1251 (5th
Cir. 1997) (affirming dismissal of plaintiff's claims for
negligence, fraudulent misrepresentation, breach of implied
warranty, market share liability, and civil conspiracy);
Guillot v. Aventis Pasteur, Inc., No. 02-3373, 2013
WL 4508003, at *3 n.5 (E.D. La. Aug. 22, 2013) (finding that
tort claim for civil battery is “not available against
[the] manufacturer defendants due to the LPLA's
exclusivity provision”). King v. Bayer Pharm.
Corp., No. 09-0465, 2009 WL 2135223, at *4 (W.D. La.
July 13, 2009) (“Plaintiffs' claims against
Defendants for strict liability, negligence and negligence
per se are not viable as independent theories of recovery
outside of the LPLA framework. The LPLA's exclusivity
provision further precludes Plaintiffs' claim for . . .