The Twombly and Iqbal requirement that complaints set forth facts making out a plausible case for liability got a nice workout in the recent case of Guidry v. Janssen Pharmaceuticals, Inc., 2016 WL 633673 (E.D. Louisiana Feb. 17, 2016). The plaintiff alleged that she suffered acute kidney failure after using a prescription drug. The Complaint began with three causes of action under the Louisiana Products Liability Act (LPLA) for “composition or construction” defect, design defect, and failure to warn. There were other causes of action, including negligence, strict product liability, negligent misrepresentation, fraud/deceit, violations of Louisiana Unfair Trade Practices, breach of express warranty, and breach of implied warranties. And, just as you will invariably find red beans on your plate in many Louisiana parishes, so you will find a “redhibition” claim in a drug/device lawsuit.
The defendant filed a motion to dismiss. Because the LPLA provides “the exclusive theories of liability for manufacturers for damage caused by their products,” (La. R.S. §9.2800.52) most of the causes of action in the Complaint were invalid. The plaintiff attempted to save “her extraneous theories of recovery with an appeal to New Jersey law.” Her theory was that because the defendant’s home state was New Jersey, the laws of New Jersey must apply to her claims. But the plaintiff was a resident of Louisiana. Consequently (though not specified in the complaint, either through carelessness or shrewdness), the prescription drug was probably acquired in Louisiana and the alleged injury was sustained in Louisiana. Under those circumstances, the law of Louisiana, not New Jersey, would govern the liability claims. Bruce Springsteen must yield to Fats Domino. Therefore, the court dismissed the claims for negligence , strict product liability, negligent misrepresentation, fraud and deceit, violations of Louisiana Unfair Trade Practices, and beach of implied warranty. Adieu, non-LPLA claims. (At this point, we hope we do not seem churlish by wondering whether Rule 11 should not smack down common law product liability claims in Louisiana. The LPLA has been in force for over 25 years and its exclusivity is both express and well-settled. And yet, plaintiffs continue to file frivolous common law claims. OMD! - i.e., Oh mon Dieu.)
The court then turned to the claims under the LPLA. A defective construction claim provides a remedy for harm caused by a product defect due to a mistake in the manufacturing process. None of the specific facts alleged by the plaintiff suggested that the medication she ingested deviated from the specifications or intended design of the drug. Nor did she allege facts as to how the composition of the medicine was defective. All the plaintiff did was recite the elements of the cause action, but that is not enough under TwIqbal. Au revoir, defective composition or construction claim.
The defective design claim fared no better. Again, the plaintiff merely recited the elements. The mere fact that she was hospitalized sometime after using the medicine fell short of what was required. The plaintiff failed to plead or support how the medicine’s design was defective, in what way such defect could have been remedied (i.e., whither the safer alternative design?), or how the alleged defect caused her particular injuries. Bonne journee, bogus design claim.
Warning claims are usually the cockroaches of product liability. They are the ones left wriggling around after everything else has been erased. But the warning claim in Guidry did not survive. The only specific fact the court could find that even pretended to support the plaintiff’s failure-to-warn claim was that the FDA issued a safety announcement warning about a condition ... that did not affect the plaintiff. The plaintiff certainly did not provide any factual basis for her claim that the defendants failed to adequately warn of the injury she did claim she had, acute kidney injury. A plus tard, weak warnings allegations.
As is so often the case, the warranty claims discussion seems anticlimactic. The plaintiff claimed that the defendants expressly warranted that the medicine was safe and effective to use without the need for blood monitoring and dose adjustments. Yet, she failed to allege facts showing that she was ever informed of the express warranty or that it induced her to use the medicine. Nor did the plaintiff invoke facts showing that her injury was caused by lack of blood monitoring or dose adjustment. To the rote warranty claims, we say, Salut!
The last cause of action discussed, and dismantled, by the court was that curious Louisiana creature called redhibition. A redhibition claim “seeks to recover the value of the product or either economic loss.” But a defect qualifies for redhibition only when such defect “renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect.” As already mentioned, the plaintiff did not actually specify any defect, so the redhibition claim, too, was dismissed. Je me casse, redhibition.
And to the Guidry court, merci! Welcome to the TwIqbalcheat sheet.