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McCleary v. Elekta Inc.

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

October 18, 2019

JACKIE MCCLEARY, ET AL.
v.
ELEKTA, INC., ET AL.

          HAYES MAGISTRATE JUDGE

          MEMORANDUM RULING

          S. MAURICE HICKS, JR., CHIEF JUDGE.

         Before 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 GRANTED.

         BACKGROUND

         The factual allegations contained in the complaint are accepted as true and are as follows.[1] 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.

         In 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.” Id.

         The 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.

         Nearly 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. See id.

         Plaintiffs 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.

         Elekta 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.

         LAW AND ANALYSIS

         I. Legal Standards

         A. Pleading and 12(b)(6) Motion to Dismiss Standards

         Rule 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 ...


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