Alexander v. Glaxosmithkline, LLC
| Decision Date | 14 September 2015 |
| Docket Number | CIVIL ACTION NO. 15-2323 SECTION "B"(5) |
| Parties | ALEXIS ALEXANDER v. GLAXOSMITHKLINE, LLC |
| Court | U.S. District Court — Eastern District of Louisiana |
Before the Court is Defendant's, GlaxoSmithKline LLC ("GSK"), Motion to Dismiss Plaintiff's First, Third, Fifth, and Sixth Causes of Action1 for failure to state a claim upon which relief can be granted (Rec. Doc. 9), as well as the Amended Complaint filed by Plaintiff, Alexis Alexander, individually and as parent and natural guardian of N.A., a minor. (Rec. Doc. 21). Defendant moves the Court pursuant to Fed. R. Civ. P. 12(b)(6) to:
Zofran is a prescription medication, manufactured by Defendant GSK and approved by the federal Food and DrugAdministration ("FDA") in 1991, for the treatment of nausea. (Rec. Doc. 21 at 1-2). Plaintiff alleges that Zofran has also been marketed "off label" since at least January 1998 as a treatment for pregnancy-related nausea and vomiting. (Rec. Doc. 21 at 2, 20-25). Plaintiff further states that, although the drug was marketed to pregnant women, it was never approved for such use nor was it clinically tested for such use. (Rec. Doc. 21 at 2).
Plaintiff Alexander was prescribed and began taking Zofran beginning early in her first trimester of pregnancy and took it continuously from then through her third trimester. (Rec. Doc. 21 at 4-5, 25). Plaintiff Alexander's minor child, N.A., was born in 2006 with numerous congenital defects in his heart, including atrial septal defect and partial anomalous pulmonary venous return, for which N.A. has undergone two surgeries. (Rec. Doc. 21 at 4, 25). Plaintiff Alexander alleges that N.A. has no family history of any of the conditions from which he suffers, and further that he has two siblings who were born healthy. (Rec. Doc. 21 at 5, 25). Plaintiff Alexander alleges that Zofran is the cause of her child's injuries. (Rec. Doc. 1 at 5).
Plaintiff states that she is a citizen of Louisiana, that GSK is a citizen of Delaware, and that the amount in controversy exceeds $75,000.00, so that federal jurisdiction is proper under 28 U.S.C. § 1332. (Rec. Doc. 21 at 5-6). Defendant GSK has notanswered Plaintiff's complaint, instead filing the instant Motion to Dismiss, but currently pending before this Court is Defendant GSK's Motion to Stay. (Rec. Doc. 8). Plaintiff does not oppose Defendant's Motion to Dismiss, but rather files a timely Amended Complaint pursuant to Fed. R. Civ. P. 15(a)(1)(B).
Plaintiff brings claims for compensatory damages, equitable relief, and such other relief deemed just and proper arising from injuries and birth defects suffered by N.A. as a result of exposure to Zofran. (Rec. Doc. 21 at 5). Plaintiff Alexander states that she and her son, N.A., have suffered and incurred harm including severe and permanent pain and suffering, mental anguish, medical expenses, and other economic and noneconomic damages, and will require more constant and continuous medical monitoring and treatment than had she and N.A. not been exposed to Zofran. (Rec. Doc. 21 at 26). Plaintiff's Original Complaint alleged seven causes of action, including construction or composition defect, inadequate warning, design defect, breach of express warranty under the Louisiana Products Liability Act ("LPLA") and breach of the implied warranty of merchantability and fitness, redhibition, and loss of consortium under general Louisiana law. (Rec. Doc. 1). Plaintiff has amended her complaint to elaborate on her theories of recovery based on design defect and redhibition and omit the causes of actionbased on construction or composition defect and breach of implied warranty. (Rec. Doc. 21).
For the reasons that follow, IT IS ORDERED that Defendant's Motion is DISMISSED AS MOOT as to those claims which Plaintiff's Amended Complaint eliminated, and DENIED as to those remaining claims, as set forth fully below.
Defendant alleges that Plaintiff's construction or composition claim does not meet federal pleading standards insomuch as it fails to establish that the product, Zofran, deviated in a material way from the manufacturer's specifications or performance standards for the product or from otherwise identical products manufactured by the same manufacturer. Defendant contends that Plaintiff's design defect claim does not meet federal pleading standards as it is conclusory and there are no alleged facts identified that may support the assertion. Defendant argues that Plaintiff's claims for breach of implied warranty and redhibition are barred by the LPLA, which establishes the exclusive theories of liability for manufacturers for damages caused by their products.
Plaintiff amended her original complaint, pursuant to Fed. R. Civ. P. 15(a)(1)(B). Plaintiff disposed of two of her claims addressed in Defendant's Motion to Dismiss, namely her claimbased on a construction or composition defect under the LPLA and her claim based on breach of implied warranty under general Louisiana law. Plaintiff has also amended the complaint to provide additional facts in relation to her causes of action pursuant to a design defect under the LPLA and redhibition under Louisiana law.
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a party to move for dismissal of a complaint for failure to state a claim upon which relief can be granted. Such a motion is rarely granted because it is viewed with disfavor. See Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982)).
When reviewing a motion to dismiss, courts must accept all well-pleaded facts as true and view them in the light most favorable to the non-moving party. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). However, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "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." Gonzales v. Kay, 577 F.3d 600, 603 (5th Cir. 2009)(quoting Ashcroft v. Iqbal, 129 S. Ct. 1937,1949 (2009))(internal quotation marks omitted). The Supreme Court in Iqbal explained that Twombly promulgated a "two-pronged approach" to determine whether a complaint states a plausible claim for relief. Iqbal, 129 S. Ct. at 1950. First, courts must identify those pleadings that, "because they are no more than conclusions, are not entitled to the assumption of truth." Id. Legal conclusions "must be supported by factual allegations." Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949.
Upon identifying the well-pleaded factual allegations, courts "assume their veracity and then determine whether they plausibly give rise to an entitlement of relief." Id. at 1950. A claim has facial plausibility 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. at 1949. This is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. The plaintiffs must "nudge[] their claims across the line from conceivable to plausible." Twombly, 550 U.S. at 570.
Initially, this Court need briefly address Plaintiff's response via an amended complaint, rather than through opposition. After a succinct discussion of this remedy, theDefendant's claims within the Motion to Dismiss shall be addressed. As is indicated below, some of Defendant's claims are moot as Plaintiff removed them from the complaint. As to Defendant's other claims, Plaintiff has met her burden so as to survive the Motion to Dismiss.
As Plaintiff correctly indicates, "[a] party may amend its pleading once as a matter of course within[,] . . . if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Fed. R. Civ. P. 15(a)(1)(B). As Defendant did not answer Plaintiff's Original Complaint filed on June 26, 2015 (Rec. Doc. 1), Plaintiff had twenty-one days to amend the complaint once as a matter of course, without leave of court, as of Defendant's Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6), filed August 19, 2015 (Rec. Doc. 9). Plaintiff amended her complaint on September 8, 2015 (Rec. Doc. 21), making this action timely.2
Further, "[t]he proper means of raising claims that have inadvertently not been raised in the complaint is an amended complaint, not a brief in opposition to a motion to dismiss." Sansom Comm. V. Lynn, 366 F. Supp. 1271, 1278 (E.D. Pa. 1973). Thus, an amended complaint filed in response to a motion to dismiss may correct the defects highlighted by the motion, either by removing such defects in their entirety or by amending them to overcome the motion. See, e.g., Hudnall v. Kelly, 388 F. Supp. 1352, 1353 (N.D. Ga. 1975) (). Accordingly, this Court must assess each of Defendant's claims presented in the Motion to Dismiss in light of Plaintiff's amendments.
As previously stated, Plaintiff's...
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