United States District Court, S.D. West Virginia
DONALD W. PROFFITT, JR., et al., Plaintiffs,
BRISTOL-MYERS SQUIBB COMPANY, et al., Defendants.
MEMORANDUM OPINION AND ORDER
A. FABER SENIOR UNITED STATES DISTRICT JUDGE
before the court is defendants' motion for judgment on
the pleadings. (Doc. No. 18). For reasons expressed more
fully below, that motion is GRANTED.
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.
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.
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.
Standard of Review
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)).
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).
to Iqbal and the interpretation given it by our
[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,