United States District Court, W.D. Louisiana, Shreveport Division
JACKIE MCCLEARY, ET AL.
ELEKTA, INC., ET AL.
MAURICE HICKS, JR., CHIEF JUDGE.
the Court is a Partial Motion to Dismiss pursuant to Federal
Rules of Civil Procedure 12(b)(6) filed by Defendants,
Elekta, Inc. and Elekta Oncology Systems, Inc. (collectively
“Elekta). See Record Document 7. Plaintiffs
Jackie McCleary, Sanford Bellows, Sharron Bellows, Mark Hays,
Glenna Hays, Justin Kraker, and Christy Kraker (collectively
“Plaintiffs”) oppose the motion. See
Record Document 11. Elekta seeks dismissal of Plaintiffs'
negligence claims and attorney's fees. For the reasons
set forth below, Elekta's motion is hereby
factual allegations contained in the complaint are accepted
as true and are as follows. This matter arises out of the
removal of a cancer treatment machine from the Overton Brooks
VA Medical Center (“Overton Brooks”) in
Shreveport, Louisiana in 2014. See Record Document 1
at 4. The machine, manufactured by Elekta, serves to treat
cancer patients by “aiming a beam of radiation at a
tumor to kill the cancer cells.” Id.
2014, Overton Brooks and the Veterans Health Administration
(“VHA”) entered into a contract with Elekta to
buy a new machine, and under the contract Elekta agreed to
remove the old machine and install the new one. See
id. Elekta then entered into a contract with Advanced
Shielding Technologies, Inc. (“Advanced
Shielding”) to remove the old machine. See id.
On the day of removal, Advanced Shielding only sent one
worker. See id. at 6. Because removal required more
manpower, Elekta and Advanced Shielding asked Overton Brooks
to provide employees to help with removal. See id.
Therefore, four employees of the VHA-Sanford Bellows, Mark
Hays, Justin Kraker, and Steven McCleary-were assigned to
remove the machine. See id. Both Elekta and Advanced
Shielding “told Overton Brooks that the old machine
contained no radioactivity and that there was no danger to
the employees of the Veteran Health Administration.”
removal process took approximately two days. See id.
at 7. After removal, Advanced Shielding attempted to dispose
of the old machine at a local scrap yard, but the scrap yard
refused the machine because it “set off radiation
sensors.” Id. Upon learning this, the
employees asked Elekta and Advanced Shielding if they
“had been exposed to dangerous levels of
radioactivity.” Id. Again, Elekta and Advanced
Shielding “assured plaintiffs that there was no danger
to the machine.” Id.
four years later in May of 2018, Steven McCleary, one of the
employees who removed the machine, died from acute
myeloblastic leukemia. See id. Plaintiffs allege
this type of cancer is “known to be caused by exposure
to radiation.” Id. at 8. The complaint also
asserts Mark Hays, another employee who removed the machine,
“was told that his doctors had found ground glass
nodules in his lungs.” Id. Further, the
complaint alleges the employees have also suffered bodily
injuries and sickness from their exposure to radiation.
Jackie McCleary, Sanford Bellows, Mark Hays, Justin Kraker,
and their spouses brought the instant suit against Elekta and
Advanced Shielding alleging claims of negligence and
negligent misrepresentation. See id. at 8-12. In
addition, Plaintiffs sued Elekta under the Louisiana Products
Liability Act (“LPLA”) for failure to warn of the
risks of exposure to radiation. See id. at 12.
Further, Plaintiffs seek recovery of attorney's fees,
among other damages. See id. at 17.
has now moved to dismiss all claims of negligence,
attorney's fees and other common law claims asserting
that the LPLA's exclusivity provision bars recovery
outside of the LPLA against a manufacturer for a defective
product. See Record Document 7-1 at 1. Plaintiffs
have filed an opposition. See Record Document 11.
Elekta filed a reply. See Record Document 14.
Pleading and 12(b)(6) Motion to Dismiss Standards
8(a)(2) of the Federal Rules of Civil Procedure governs the
pleading requirements to state a claim for relief, requiring
that a pleading contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” The standard for the adequacy of complaints
under Rule 8(a)(2) is now a “plausibility”
standard found in Bell Atlantic Corp. v. Twombly and
its progeny. 550 U.S. 544, 127 S.Ct. 1955 (2007). Under this
standard, “factual allegations must be enough to raise
a right to relief above the speculative level . . . on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Id. at 555-56,
127 S.Ct. at 1965. If a pleading only contains “labels
and conclusions” and “a ...