United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER
STARRETT UNITED STATES DISTRICT JUDGE.
reasons below, the Court grants the Motion
to Dismiss  filed by Defendants Janssen Pharmaceuticals,
Inc. and Johnson & Johnson, and grants
the Motion to Dismiss  filed by Defendants AbbVie, Inc.
and Abbott Laboratories, Inc. Accordingly, the Court will
enter a separate, final order of dismissal, closing this
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.
Standard of Review
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).
Motion to Dismiss  by Johnson & Johnson, Janssen
Product Liability Claims
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.
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,  breach of implied warranty, breach of express
warranty,  fraud,  negligent misrepresentation,
negligent infliction of emotional distress,  and strict
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
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.
Wrongful Death Claims
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.
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).
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
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).