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Proffitt v. Bristol-Myers Squibb Co.

United States District Court, S.D. West Virginia

July 5, 2018

DONALD W. PROFFITT, JR., et al., Plaintiffs,
v.
BRISTOL-MYERS SQUIBB COMPANY, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          DAVID A. FABER SENIOR UNITED STATES DISTRICT JUDGE

         Pending before the court is defendants' motion for judgment on the pleadings. (Doc. No. 18). For reasons expressed more fully below, that motion is GRANTED.

         I. Background

         This products liability action arises out of plaintiff Donald W. Proffitt, Jr.'s (“Donald”) use of the prescription drug Abilify. According to the allegations in the Complaint, which are taken as true for purposes of this motion, Donald suffers from tardive dyskinesia, a condition which results in “restlessness, twitching of the upper and lower extremities, facial tics, jaw clenching and clucking, and constant eye blinking.” ECF No. 3-1 at ¶ 7. The Complaint alleges that Donald developed tardive dyskinesia from taking Abilify from August 19, 2014 through July of 2015. See id. at ¶¶ 1 and 5.

         On or about November 21, 2017, Donald and his wife, Pamela, filed a four-count complaint against Bristol-Myers Squibb Company (“Bristol-Myers”) and Otsuka America Pharmaceutical, Inc. (“Otsuka”) in the Circuit Court of Mercer County for their activities “in connection with the[] manufacture, production, labeling, marketing, advertising, sale, promotion and distribution of Abilify.” Id. at ¶ 1. Count 1 alleges liability for Negligent Failure to Warn while Count III alleges Strict Products Liability for Failure to Warn. See id. at ¶¶ 16-19 and 25-29. Count II alleges that defendants breached an implied warranty of merchantability due to their “fail[ure] to provide a reasonable warning . . . of the foreseeable risk of the development of tardive dyskinesia associated with the use of Abilify. . . .” Id. at ¶ 24. Count IV is Pamela's claim for loss of consortium. See id. at ¶¶ 30-33.

         Defendants seek judgment on the pleadings because, according to them, (1) plaintiffs' state law failure to warn claims are preempted by federal law; (2) plaintiffs have failed to state a claim upon which relief can be granted; and (3) Pamela's loss of consortium claim fails as a matter of law. Plaintiffs disagree.

         II. Standard of Review

         Federal Rule of Civil Procedure 12(c) provides that, “[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.” Pursuant to Federal Rule of Civil Procedure 12(h)(2)(B), the defense of failure to state a claim upon which relief can be granted may be raised in a motion for judgment on the pleadings. “A motion for judgment on the pleadings under Rule 12(c) is assessed under the same standards as a motion to dismiss under Rule 12(b)(6).” Occupy Columbia v. Haley, 738 F.3d 107, 115 (4th Cir.2013) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)).

         In evaluating the sufficiency of a pleading, the cases of Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), provide guidance. When reviewing a motion to dismiss, under Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief may be granted, a court must determine whether the factual allegations contained in the complaint “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests, ” and, when accepted as true, “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957); 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). “[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Twombly, 550 U.S. at 563. As the Fourth Circuit has explained, “[a] complaint attacked by a Rule 12(b)(6) motion to dismiss will survive if it contains ‘enough facts to state a claim to relief that is plausible on its face.'” Lainer v. Norfolk Southern Corp., 256 Fed.Appx. 629, 632 (4th Cir. 2007) (quoting Twombly, 550 U.S. at 570).

         According to Iqbal and the interpretation given it by our appeals court,

[L]egal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement fail to constitute well-pled facts for Rule 12(b)(6) purposes. See Iqbal, 129 S.Ct. at 1949. We also decline to consider “unwarranted inferences, unreasonable conclusions, or arguments.” Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n. 26 (4th Cir. 2009); see also Iqbal, 129 S.Ct. at 1951-52.
Ultimately, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 129 S.Ct. at 1949 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Facial plausibility is established once the factual content of a complaint “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In other words, the complaint's factual allegations must produce an inference of liability strong enough to nudge the plaintiff's claims “‘across the line from conceivable to plausible.'” Id. at 1952 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).
Satisfying this “context-specific” test does not require “detailed factual allegations.” Id. at 1949-50 (quotations omitted). The complaint must, however, plead sufficient facts to allow a court, drawing on “judicial experience and common sense, ” to infer “more than the mere possibility of misconduct.” Id. at 1950. Without such “heft, ” id. at 1947, the plaintiff's claims cannot establish a valid entitlement to relief, as facts that are “merely consistent with a defendant's liability, ” id. at 1949, fail to nudge claims “across the line from conceivable to plausible.” Id. at 1951.

Nemet Chevrolet, LTD v. Consumeraffairs.com, Inc., 591 F.3d 250, 255-56 (4th Cir. 2009); see also Iqbal, 556 U.S. at 678 (noting that this standard does not require `detailed factual allegations,' but it demands more than an unadorned, ...


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