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Morenc v. Roche Diagnostics Corp.

United States District Court, E.D. Louisiana

December 13, 2019


         SECTION: M (2)

          ORDER & REASONS


         Before the Court is a motion by defendant Roche Diagnostics Corporation (“Roche”) to dismiss certain claims in plaintiffs' complaints pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.[1] Plaintiffs David Morenc (“Morenc”) and Brenda Morenc (collectively, “Plaintiffs”) respond in opposition.[2] Having considered the parties' memoranda, the record, and the applicable law, the Court issues this Order & Reasons.

         I. BACKGROUND

         This matter concerns damages allegedly caused by a defective medical device. Morenc takes a blood thinning medication to prevent blood clots and his physician prescribed CoaguCheck XS PT test strips (“test strips”) manufactured by Roche and its related company, Abbott Laboratories d/b/a Alere Home Monitoring, Inc. (“Abbott”), to monitor Morenc's response to the medication.[3] On October 3, 2018, Morenc was diagnosed as having had a stroke after presenting to the emergency room with slurred speech and a left facial droop.[4] On November 8, 2018, Morenc received an email from Abbott informing him that the test strips had been recalled because they were providing inaccurate test results due to a recalibration of the product that occurred in January 2018.[5] The test strips used by Morenc were in the defective lot number that was included in the recall.[6]

         On May 21, 2019, Plaintiffs filed this suit against Roche and Abbott alleging that Morenc's stroke was caused by defendants' defective test strips.[7] Plaintiffs assert causes of action arising under Louisiana law for negligence, redhibition, and the Louisiana Products Liability Act (the “LPLA”), La. R.S. 9:2800.51, et seq., seeking monetary damages along with attorney's fees.[8]After Roche filed its first motion to dismiss, [9] Plaintiffs filed their third supplemental and amending complaint to address some of the pleading deficiencies raised in Roche's motion.[10] The Court then dismissed as moot Roche's first motion to dismiss and ordered Roche to re-file its motion to dismiss directed to all of Plaintiffs' complaints as amended.[11] Thereafter, Roche filed the instant motion to dismiss.[12]


         Roche seeks dismissal of Plaintiffs' negligence claims arguing that they fall outside the exclusive theories of manufacturer liability permitted under the LPLA.[13] Roche also seeks dismissal of Plaintiffs' redhibition claim as barred by the LPLA because the claim seeks relief for personal injuries as opposed to economic loss.[14] Roche argues further that Plaintiffs' LPLA claims for breach of express warranty and inadequate warning should be dismissed because they are not sufficiently pleaded, and Plaintiffs cannot recover attorney's fees for their LPLA claims.[15]

         In opposing the motion, Plaintiffs contend that they have adequately stated claims for negligence and under all LPLA theories of recovery.[16] Plaintiffs also argue that they have sufficiently pleaded a claim for redhibition seeking the return of the purchase price of the test strips and attorney's fees.[17] In the alternative, Plaintiffs contend that they should be permitted an opportunity to amend their complaint yet again to address any pleading deficiencies.[18]

         III. LAW & ANALYSIS

         A. Rule 12(b)(6) Standard

         The Federal Rules of Civil Procedure require a complaint to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 8 “does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The statement of the claim must “‘give the defendant fair notice of what the … claim is and the grounds upon which it rests.'” Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A pleading does not comply with Rule 8 if it offers “labels and conclusions, ” “a formulaic recitation of the elements of a cause of action, ” or “‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555-57).

         Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a party to move to dismiss for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “To 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.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A claim is plausible on the face of the complaint “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). Plausibility does not equate to probability, but rather “it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief.”'” Id. (quoting Twombly, 550 U.S. at 557). Thus, if the facts pleaded in the complaint “do not permit the court to infer more than a mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]' - ‘that the pleader is entitled to relief.'” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

         In considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court employs the two-pronged approach utilized in Twombly. The court “can choose to begin by identifying pleadings that, because they are no more than conclusions [unsupported by factual allegations], are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. However, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. Motions to dismiss are disfavored and rarely granted. Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (citing Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009)).

         A court's review of a Rule 12(b)(6) motion to dismiss “is limited to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)). A court may also take judicial notice of certain matters, including public records and government websites. Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2007); see also Kitty Hawk Aircargo, Inc. v. Chao., 418 F.3d 453, 457 (5th Cir. 2005). Thus, in weighing a Rule 12(b)(6) motion, district courts primarily look to the allegations found in the complaint, but courts may also consider “documents incorporated into the complaint by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint whose authenticity is unquestioned.” Meyers v. Textron, Inc., 540 Fed.Appx. 408, 409 (5th Cir. 2013) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)).

         B. Louisiana Products Liability Act

         The LPLA “establishes the exclusive theories of liability for manufacturers for damage caused by their products.” La. R.S. 9:2800.52 (“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].”); see also Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 261 (5th Cir. 2002) (“negligence, strict liability, and breach of express warranty are not available as theories of recovery against a manufacturer, independent from the LPLA”). Further, attorney's fees are not recoverable under the LPLA. La. R.S. 9:2800.53(5). Thus, Roche's motion to dismiss is GRANTED as to Plaintiffs' claims for negligence and for attorney's fees incurred in pursuing their LPLA claims.

         Under the LPLA, a plaintiff may only recover against a manufacturer “for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant or another person or entity.” Id. 9:2800.54(A). The statute further limits recovery for damage resulting from “unreasonably dangerous” characteristics to four theories of liability: (1) unreasonably dangerous in construction or composition;[19] (2) unreasonably dangerous in design;[20](3) unreasonably dangerous for failure to provide an adequate warning;[21] and (4) unreasonably dangerous for nonconformity to an express warranty.[22] Id. 9:2800.54(B). The unreasonably dangerous characteristic “must exist at the time the product left the control of its manufacturer.”[23]Id. 9:2800.54(C). The plaintiff bears the burden of proving these elements of liability under the LPLA. Id. 9:2800.54(D); see also Johnson v. Transwood, Inc., 2015 WL 5680369, at *3 (M.D. La. Sept. 25, 2015) (an unreasonably dangerous condition is not presumed solely because an injury occurred).

         1. Unreasonably dangerous because of inadequate warning

         Under the third theory of LPLA liability, a manufacturer must exercise reasonable care to give an adequate warning concerning a product that “possessed a characteristic that may cause damage” at the time the product left its manufacturer's control. A manufacturer is liable for failure to exercise reasonable care in warning of the characteristic and its danger to users and handlers of the product. La. R.S. 9:2800.57(A). A manufacturer has a continuing duty to provide an adequate warning after the product leaves its control when the manufacturer obtains actual knowledge about “a characteristic that may cause damage and the danger of such characteristic, or who would have acquired such knowledge had [it] acted as a reasonably prudent manufacturer.” Id. 9:2800.57(C). However, a manufacturer is not liable for failing to warn when:

(1) The product is not dangerous to an extent beyond that which would be contemplated by the ordinary user or handler of the product, with the ordinary knowledge common to the ...

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