Health Law Daily Wrap Up, PRODUCTS LIABILITY (DRUGS)—E.D. La.: LPLA claims alone survive in defective drug case, (Mar 24, 2017)

By Miriam A. Friedman, J.D.

Claims for defect in design, defect in composition or construction, and failure to warn brought by a patient who alleged that she sustained kidney damage caused by a defective drug were pleaded sufficiently to be brought under the Louisiana Product Liability Act (LPLA), even though she did not specifically allege claims arising under the LPLA, a federal court in Louisiana found in denying in part the manufacturers’ motion to dismiss. Her claim for breach of express warranty was dismissed because it was not plausibility pleaded under the LPLA, and her claims for negligence, breach of express and implied warranties, fraud, misrepresentation, and emotional distress were dismissed with prejudice because they were barred by the LPLA’s exclusivity provision (Donald v. AstraZeneca Pharmaceuticals, LP, March 22, 2017, Feldman, M.).

The patient ingested Nexium and subsequently suffered kidney damage. She sued AstraZeneca Pharmaceuticals LP and AstraZeneca LP, the drug’s manufacturers, asserting strict product liability, intentional infliction of emotional distress, negligent infliction of emotional distress, fraud, negligence, negligent misrepresentation, fraudulent misrepresentation, and breaches of express and implied warranties. The manufacturer moved to dismiss her claims, arguing the failure to state a claim.

Non-LPLA claims. The court found that the patient’s claims for negligent and intentional infliction of emotion distress, fraud, negligence, negligent misrepresentation, intentional misrepresentation, express warranty, implied warranties, and express warranties, as well as her claims for punitive or exemplary damages were barred by the Louisiana Products Liability Act (LPLA), which was the "exclusive remedy for products liability suits under Louisiana law."

LPLA/defect in construction or composition. The complaint stated that when the drug "left the hands of the manufacturers … it was unreasonably dangerous," and specifically that it was "defective in formulation." Pursuant to the analysis endorsed by the Fifth Circuit, the court concluded that "any potential claim based on construction or composition survive[d]."

LPLA/defect in design. The patient asserted that alternatives "are and were available that provide the same benefits but act through a different mechanism" and specifically described one such alternative. Although the complaint did not "address whether the danger outweighed the burden on the manufacturer of adopting an alternative design," the court concluded that "such an omission [was] not so fatal as to give rise to dismissal."

LPLA/failure to warn. The patient alleged that her treating physician would not have prescribed the drug had the physician "been properly warned of the risks of kidney injuries." The court found that this assertion provided "facial plausibility" for a failure to warn claim.

LPLA/breach of express warranty. With regard to breach of express warranty, however, the court found no allegation in the patient’s pleadings that the manufacturer had breached any specific express warranty because the patient did not allege the content of the warning or explain how the warranty was untrue.

The case is No. 16-cv-17753.

Attorneys: Waldon Michael Hingle (Michael Hingle & Associates, Inc.) for Alice Donald. E. Paige Sensenbrenner (Adams & Reese, LLP) and Amy K. Fisher (Ice Miller, LLP) for AstraZeneca Pharmaceuticals LP and AstraZeneca LP.

Companies: AstraZeneca Pharmaceuticals LP; AstraZeneca LP

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