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Blouin v. Johnson & Johnson

United States District Court, S.D. Mississippi, Eastern Division

November 1, 2017




         For the reasons below, the Court grants the Motion to Dismiss [11] filed by Defendants Janssen Pharmaceuticals, Inc. and Johnson & Johnson, and grants the Motion to Dismiss [19] filed by Defendants AbbVie, Inc. and Abbott Laboratories, Inc. Accordingly, the Court will enter a separate, final order of dismissal, closing this case.

         I. Background

         This is a wrongful death/product liability case. Plaintiffs allege that their son suffered personal injuries because he used a drug manufactured and marketed by Defendants. Plaintiffs asserted a variety of claims, and they seek several categories of damages. Defendants filed Motions to Dismiss [11, 19], to which Plaintiffs did not respond. Therefore, the motions are ripe for review.

         II. Standard of Review

         To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Great Lakes Dredge & Dock Co. LLC v. La. State, 624 F.3d 201, 210 (5th Cir. 2010) (punctuation omitted). “To be plausible, the complaint's factual allegations must be enough to raise a right to relief above the speculative level.” Id. (punctuation omitted). The Court must “accept all well-pleaded facts as true and construe the complaint in the light most favorable to the plaintiff.” Id. But the Court will not accept as true “conclusory allegations, unwarranted factual inferences, or legal conclusions.” Id. Likewise, “a formulaic recitation of the elements of a cause of action will not do.” PSKS, Inc. v. Leegin Creative Leather Prods., Inc., 615 F.3d 412, 417 (5th Cir. 2010) (punctuation omitted). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009).

         III. Motion to Dismiss [11] by Johnson & Johnson, Janssen Pharms., Inc.

         A. Product Liability Claims

         First, Defendants Johnson & Johnson and Janssen Pharmaceuticals, Inc. (the “Janssen Defendants”) argue that Plaintiffs' claims of wrongful death, negligence, gross negligence, strict liability, breach of warranty, and fraud are subsumed by the Mississippi Products Liability Act and, therefore, subject to the statute of limitations applicable to such claims.[1]

         The MPLA governs “any action for damages caused by a product, including but not limited to, any action based on a theory of strict liability in tort, negligence or breach of implied warranty . . . .” Miss. Code Ann. § 11-1-63; see also Elliott v. El Paso Corp., 181 So.3d 263, 268 (Miss. 2015). Accordingly, the federal courts in this state have held that the MPLA subsumes claims of negligence, [2] breach of implied warranty, [3]breach of express warranty, [4] fraud, [5] negligent misrepresentation, [6] negligent infliction of emotional distress, [7] and strict liability.[8]

         MPLA claims are subject to the general three-year statute of limitations of Miss. Code Ann. § 11-1-49(1). Turnage v. McConnell Techs., 671 F. App'x 307, 308 (5th Cir. 2016); Smith v. Gen. Motors, LLC, No. 3:17-CV-471-TSL-RHW, 2017 U.S. Dist. LEXIS 169453, at *3 (S.D.Miss. Oct. 13, 2017). MPLA claims accrue when the plaintiff discovers, or by reasonable diligence should have discovered, the injury. Miss. Code Ann. § 15-1-49(2); Lincoln Elec. Co. v. McLemore, 54 So.3d 833, 836 (Miss. 2010).

         Here, the claimed injury is Alexander Blouin's death, which occurred on March 26, 2013. See Amended Complaint at 4, Blouin v. Johnson & Johnson, No. 2:17-CV-42-KS-MTP (S.D.Miss. July 25, 2017), ECF No. 5. Therefore, Plaintiffs' product liability claims accrued on March 26, 2013. Plaintiffs filed this action on March 24, 2017 - over three years after their product liability claims accrued. Any claims asserted by Plaintiffs which are governed by the MPLA - including their claims of negligence (Count IV), gross negligence (Count V), fraud (Count VII), strict liability (Count VIII), and breach of warranty (Count VI) - are barred by the applicable statute of limitations.

         B. Wrongful Death Claims

         The Janssen Defendants also argue that Plaintiffs' wrongful death claims are barred by the applicable statute of limitations. The statute of limitations for wrongful death claims is determined by reference to the underlying tort which caused the decedent's injury. Empire Abrasive Equip. Corp. v. Morgan, 87 So.3d 455, 462 (Miss. 2012). Therefore, the statute of limitations for Plaintiffs' wrongful death claims (Count I) mirrors that of their product liability claims, and they are barred by the applicable statute of limitations.

         C. Unjust Enrichment

         The Janssen Defendants argue that Plaintiffs did not plead sufficient facts to state a viable unjust enrichment claim. Unjust enrichment is a quasi-contractual theory of liability in which “there is no legal contract but . . . the person sought to be charged is in possession of money or property which in good conscience and justice he should not retain, but should deliver to another.” Ellis v. Anderson Tully Co., 727 So.2d 716, 719 (Miss. 1998) (quoting Estate of Johnson v. Adkins, 513 So.2d 922, 926 (Miss. 1987)). The basis of the claim is “a promise, which is implied in law, that one will pay to the person entitled thereto that which in equity and good conscience is his.” Jordan v. Nationwide Trustee Servs., Inc., No. 3:14-CV-503-TSL-JCG, 2014 U.S. Dist. LEXIS 170124, at *15 (S.D.Miss. Dec. 9, 2014).

         The facts pleaded by Plaintiffs do not state a plausible claim of unjust enrichment. Plaintiffs have not pleaded facts suggesting that they have a direct relationship with the Janssen Defendants, that Defendants promised to pay them any funds, or that Defendants hold any funds which rightfully belong to them. See United States ex rel. Hartwig v. Medtronic, Inc., No. 3:11-CV-413-CWR-LRA, 2014 U.S. Dist. LEXIS 44475, at *48 (S.D.Miss. Mar. 31, 2014). Accordingly, the Court grants Defendants' motion with respect to Plaintiffs' unjust enrichment claim (Count IX).


         The Janssen Defendants argue that Plaintiffs failed to plead an injury to their business or property, which is a prerequisite for a RICO claim. “To prevail in a RICO suit, a plaintiff must demonstrate an injury to business or property.” Hughes v. Tobacco Ins., Inc., 278 F.3d 417, 422 (5th Cir. 2001) (citing 18 U.S.C. § 1964(c)). Therefore, one cannot recover under RICO for personal injuries or economic losses arising from personal injuries. Id.; Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979); Price v. Pinnacle Brands, 138 F.3d 602, 607 n. 20 (5th Cir. 1998); Vickers v. Weeks Marine, Inc., 414 F. App'x 656, 657 (5th Cir. 2011). This is a personal injury case. Plaintiffs have not alleged any injury to their business or property. Therefore, the Court grants the Janssen Defendants' motion to dismiss their RICO claim (Count X).

         E. ...

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