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Smith v. Ge Healthcare, Inc.

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

September 4, 2019





         Before 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 DENIED-IN-PART.


         On 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., ¶¶ 19-20.[1]

         Smith 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. ¶ 32.

         Smith's 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.

         On May 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).

         On June 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.

         Smith 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.

         Standard of Review

         The 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. 8(a)(2).

         To 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.

         Assessing 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.[2] 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).

         Rule 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.

         When 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 marks omitted).

         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:

[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.

         In this 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 law.[3]

         To 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) (citation omitted).


         I. GEHC's Motion

         a) LPLA Exclusivity

         Under 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.[4]

         Courts 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 . . . negligent ...

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