Fleming v. Janssen Pharm., Inc.
| Citation | 186 F.Supp.3d 826 |
| Decision Date | 06 May 2016 |
| Docket Number | No. 2:15-cv-02799-JPM-dkv,2:15-cv-02799-JPM-dkv |
| Court | U.S. District Court — Western District of Tennessee |
| Parties | Wardell Fleming, Plaintiff, v. Janssen Pharmaceuticals, Inc., Johnson & Johnson, and Mitsubishi Tanabe Pharma Corp., Defendants. |
Timothy Michael O'Brien, Travis Phillip Lepicier, Levin, Papantonio, et al., Pensacola, FL, Timothy R. Holton, Deal Cooper & Holton PLLC, Memphis, TN, for Plaintiff.
Charles F. Morrow, Butler Snow LLP, Memphis, TN, John Q. Lewis, Tucker Ellis LLP, Cleveland, OH, Kari L. Sutherland, Butler Snow O'Mara Stevens & Cannada, PLLC, Oxford, MS, Mollie F. Benedict, Tucker Ellis and West LLP, Los Angeles, CA, for Defendants.
ORDER GRANTING JANSSEN PHARMACEUTICALS, INC. AND JOHNSON & JOHNSON'S MOTION TO DISMISS
Before the Court is Defendants Janssen Pharmaceuticals, Inc. and Johnson & Johnson's ("Defendants") Motion to Dismiss, filed February 12, 2016. (ECF No. 18). For the following reasons, Defendants' Motion to Dismiss is GRANTED. Accordingly, the Court dismisses all claims against Johnson & Johnson with prejudice; dismisses Plaintiff's design defect claims with prejudice; dismisses Plaintiff's Tennessee Consumer Protection Act ("TCPA") claims with prejudice; and dismisses Plaintiff's Tennessee Product Liability Act ("TPLA") claims without prejudice. Plaintiff is permitted to re-plead his TPLA claims with specificity within thirty (30) days of the entry of this order, up to and including July 6, 2016.
Plaintiff Wardell Fleming ("Plaintiff"), a Tennessee resident, brings suit against Defendants Janssen Pharmaceuticals, Inc. ("Janssen"), a Pennsylvania corporation; Johnson & Johnson, a New Jersey corporation; and Mitsubishi Tanabe Pharma Corp. ("Tanabe"), a Japanese corporation, for injuries and damages caused by Invokana, a diabetes drug. (Compl. ¶¶ 1-3, 7-10, 18-23, ECF No. 1.) Plaintiff alleges that Defendants Tanabe and Johnson & Johnson collaborated to design and develop Invokana. (Id.¶ 18.) Defendant Janssen, a wholly-owned subsidiary of Johnson & Johnson, acquired marketing rights to the drug in North America and marketed, advertised, distributed, and sold Invokana in states including Tennessee. (Id.¶ 19.) Invokana was approved by the FDA for the treatment of type 2 diabetes
. (Id.¶ 21.) Invokana, an SGLT2 inhibitor, was the first drug of its kind approved by the FDA. (Id.¶ 23.)
The FDA has since received a significant number of reports of diabetic ketoacidosis
and kidney infection from Invokana users. (Id.¶ 26.) On May 15, 2015, the FDA issued a Public Health Advisory regarding a link between SGLT2 inhibitors and diabetic ketoacidosis. (Id.¶ 27.) Plaintiff alleges that, despite the reported adverse events, Defendants have continued to fail to warn patients about diabetic ketoacidosis as a risk of taking Invokana. (Id.¶¶ 28-30.) On December 4, 2015, the FDA updated Invokana's warning label to include a warning about ketoacidosis and serious urinary tract infections which can develop into kidney infections. (Id.¶ 31.)
Plaintiff alleges that Defendants knew of the risk that severe injury could be caused by Invokana. (Id.¶ 33.) Plaintiff began taking Invokana in or about November 2013. (Id.¶ 35.) Plaintiff suffered kidney failure
, kidney damage, and reduced kidney function after taking Invokana; in addition to physical injuries, Plaintiff also alleges emotional injuries, loss of enjoyment of life, and economic loss. (Id.¶¶ 40, 48.) Plaintiff asserts that his injuries were a reasonably foreseeable consequence of Defendants' conduct and Invokana's defects. (Id.¶ 43.) Plaintiff asserts he would not have used Invokana if he had been properly warned.
(Id.¶ 45.) Plaintiff asserts that there are several safer alternative products available. (Id.¶ 32.)
On December 14, 2015, Plaintiff Wardell Fleming filed a complaint against Defendants Janssen Pharmaceuticals, Inc., Johnson & Johnson, and Mitsubishi Tanabe Pharma Corp. in the Western District of Tennessee. (ECF No. 1.) On February 12, 2016, Defendants Janssen and Johnson & Johnson ("Defendants") filed a motion to dismiss for failure to state a claim and for lack of jurisdiction over Johnson & Johnson. (ECF No. 18.) Plaintiff responded in opposition on March 14, 2016. (ECF No. 33; see also ECF No. 31.) Defendants filed a reply on April 1, 2016. (ECF No. 36.)
The Court held a telephonic scheduling conference on March 17, 2016. (Min. Entry, ECF No. 34.) On April 6, 2016, the Court held a second scheduling conference and a hearing on the instant motion. (Min. Entry, ECF No. 38.)
On April 22, 2016, Defendant Tanabe filed a motion to dismiss. (ECF No. 42.) This motion remains pending.
A court may dismiss a claim for "lack of personal jurisdiction." Fed. R. Civ. P. 12(b)(2). "The plaintiff bears the burden of making a prima facie showing of the court's personal jurisdiction over the defendant." Intera Corp. v. Henderson, 428 F.3d 605, 615 (6th Cir.2005). A plaintiff "can meet this burden by ‘establishing with reasonable particularity sufficient contacts between [a defendant] and the forum state to support jurisdiction.’ " Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir.2002) (quoting Provident Nat'l Bank v. Cal. Fed. Sav. Loan Ass'n, 819 F.2d 434, 437 (3d Cir.1987) ). When the court does not conduct an evidentiary hearing on the issue, it must "not consider the facts proffered by the defendant that conflict with those offered by the plaintiff, and will construe the facts in the light most favorable to the nonmoving party." Id.(citation omitted).
A court may dismiss a claim 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.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).
A complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief.... A claim is facially plausible when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.... [T]he court need not accept as true allegations that are conclusory or require unwarranted inferences based on the alleged facts.
Newberry v. Silverman, 789 F.3d 636, 640 (6th Cir.2015) (citations and internal quotation marks omitted). "Plausibility is not the same as probability, but it requires ‘more than a sheer possibility that a defendant has acted unlawfully.’ " Mik v. Fed. Home Loan Mortg. Corp., 743 F.3d 149, 157 (6th Cir.2014) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ). A court must "construe[ ] the complaint in a light most favorable to the plaintiff." HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 611 (6th Cir.2012).
Defendants Janssen and Johnson & Johnson assert that all claims against Johnson & Johnson should be dismissed because Plaintiff has failed to establish personal jurisdiction as to Johnson & Johnson. (ECF No. 18-1 at 4-8.) Plaintiff argues that personal jurisdiction exists because Johnson & Johnson purposefully availed itself of this Court when it designed Invokana and, along with Janssen, a subsidiary, placed Invokana in the stream of commerce in Tennessee. (ECF No. 33 at 5 (citing Daimler AG v. Bauman, ––– U.S. ––––, 134 S.Ct. 746, 759 n. 13, 187 L.Ed.2d 624 (2014) ).) The Court finds that Johnson & Johnson does not have minimum contacts with Tennessee such that personal jurisdiction exists.
"Personal jurisdiction can be either general or specific, depending upon the nature of the contacts that the defendant has with the forum state." Bird v. Parsons, 289 F.3d 865, 873 (6th Cir.2002). The Court examines only specific jurisdiction because Plaintiff focuses on specific jurisdiction in his response to the instant motion. (See ECF No. 33 at 3 n.1 ().)
To determine whether specific jurisdiction exists, the Court employs the following three-part test:
First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second, the cause of action must arise from the defendant's activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.
Devau lt – Graves Agency, LLC v. Salinger, No. 2:15–cv–02178–STA–tmp, 2015 WL 6143513, at *4 (W.D.Tenn. Oct. 19, 2015) (quoting S. Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374, 381 (6th Cir.1968) ). In analyzing purposeful availment, the Sixth Circuit uses a "stream of commerce plus" approach that requires more than simply "[t]he placement of a product into the stream of commerce" to prove purposeful availment in the forum state. Bridgeport Music, Inc. v. Still N the Water Publ'g, 327 F.3d 472, 479–80 (6th Cir.2003) (per curiam) (alteration in original) (internal quotation marks omitted). "The ‘stream of commerce plus' test is not met when the ‘defendant was "merely aware" of the fact of national distribution, but the choice to distribute was ‘pretty much out of [its] hands.’ " Devault – Graves, 2015 WL 6143513, at *5 (alteration in original) (quoting Palnik v. Westlake Enter., Inc., 344 Fed.Appx. 249, 251 (6th Cir.2009) ). Factors to consider for the "stream of commerce plus" test include "(1) the defendant's direction or control over the flow of...
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