Bjorklund v. Novo Nordisk A/S

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JACLYN BJORKLUND v. NOVO NORDISK A/S ET AL

No. 2:23-CV-01020

United States District Court, W.D. Louisiana, Lake Charles Division

January 18, 2024

KAY MAGISTRATE JUDGE

MEMORANDUM RULING

JAMES D. CAIN, JR. UNITED STATES DISTRICT JUDGE

Before the court is a Motion to Dismiss for Lack of Jurisdiction, or in the Alternative to Dismiss Plaintiff's Express Warranty Claim [doc. 73] filed pursuant to Federal Rule of Civil Procedure 12(b)(2) and (6) by defendants Novo Nordisk A/S and Novo Nordisk North America Operations A/S (collectively, “NNAS”). Plaintiff opposes the motion. Doc. 79.

I. BACKGROUND

This products liability suit arises from plaintiff's use of Ozempic (semaglutide) and Mounjaro (tirzepatide), two injectable prescription medications that have been approved by the FDA for control of blood sugar in adults with Type 2 diabetes. Both medications belong to a class of drugs called GLP-1 (glucagon-like peptide-1) receptor antagonists. Doc. 5 ¶¶ 3-6. Plaintiff, an adult resident of Louisiana took Ozempic for more than one year, concluding in July 2023, and Mounjaro thereafter on prescription from her physician(s). Id. at ¶¶ 9-12. She alleges that her use of both drugs resulted in gastroparesis, “a disorder that slows or stops the movement of food from the stomach to the small intestine,” which caused her to suffer

severe vomiting, stomach pain, gastrointestinal burning, being hospitalized for stomach issues on several occasions including visits to the emergency room, teeth falling out due to extreme and violent vomiting, requiring additional medications to alleviate her extreme and violent vomiting, and throwing up whole food hours or even days after eating.

Id. at ¶¶ 14, 80. She further alleged that defendants “acknowledge that gastrointestinal events are a well known side effect of the GLP-1 class” but have “downplayed the severity of the gastrointestinal events” and “never . . . warn[ed] of the risk of gastroparesis[.]” Id. at ¶ 7.

Plaintiff filed suit in this court on August 2, 2023, against various Novo Nordisk entities (manufacturers of Ozempic) and Lilly (manufacturer of Mounjaro). Doc. 1. She raises claims of failure to warn and breach of express warranty under the Louisiana Products Liability Act (“LPLA”), La. R.S. 9:2800.52 et seq. Doc. 5. The first-served group of Novo Nordisk entities, namely Novo Nordisk Inc, Novo Nordisk Pharmaceutical Industries L P, Novo Nordisk Research Center Seattle Inc, Novo Nordisk U S Commercial Holdings Inc, and Novo Nordisk U S Holdings Inc., moved to dismiss her claims under Federal Rule of Civil Procedure 12(b)(6) and the court granted the motion as to the express warranty claim. Docs. 54, 66, 67. Novo Nordisk A/S and Novo Nordisk North American Operations A/S (collectively, “NNAS”), two Danish Novo Nordisk entities, were subsequently served and now move for dismissal of (1) all claims against them for lack of personal jurisdiction under Rule 12(b)(2) and (2) the express warranty claim under Rule 12(b)(6). Plaintiff opposes the motion as to the personal jurisdiction arguments. Doc. 79.

II. LEGAL STANDARD

On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(2), the plaintiff bears the burden of establishing the court's jurisdiction over a nonresident defendant. E.g., Ham v. La Cienega Music Co., 4 F.3d 413, 415 (5th Cir. 1993). The court may determine jurisdictional issues through evidence outside the pleadings. Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir. 1985); Quick Techs., Inc. v. Sage Grp. PLC, 313 F.3d 338, 343 (5th Cir. 2002). When the court rules on the motion without an evidentiary hearing, the plaintiff's burden is only to make out a prima facie case of personal jurisdiction. Trinity Indus., Inc. v. Myers & Assoc., Ltd., 41 F.3d 229, 230-31 (5th Cir. 1995). At this stage the court must take uncontroverted allegations in the pleadings as true and resolve any conflicts in the parties' affidavits in the plaintiff's favor. Bullion v. Gillespie, 895 F.2d 213, 217 (5th Cir. 1990).

Personal jurisdiction over a defendant exists if (1) the forum state's long-arm statute extends to the defendant, and (2) the exercise of such jurisdiction is consistent with due process. Johnston v. Multidata Sys. Int'l Corp., 523 F.3d 602, 609 (5th Cir. 2008). Louisiana's long-arm statute extends as far as permitted by due process, merging these two factors. Rainey v. J&S Truck Sales, LLC, 614 F.Supp.3d 293, 299 (M.D. La. 2022) (citing Petroleum Helicopters, Inc. v. Avco Corp., 834 F.2d 510, 512 (5th Cir. 1987)). The exercise of personal jurisdiction over a defendant comports with due process only if (1) the defendant has purposefully availed himself of the protections of the forum state by establishing “minimum contacts” therewith and (2) the exercise of personal jurisdiction over the defendant does not offend traditional notions of fair play and substantial justice. Allred v. Moore & Peterson, 117 F.3d 278, 285 (5th Cir. 1997).

Minimum contacts may be established through either general or specific jurisdiction. Ford v. Mentor Worldwide, LLC, 2 F.Supp.3d 898, 903 (E.D. La. 2014). General jurisdiction arises from “continuous and systematic” contacts with the forum state, even when the cause of action bears no relation to those contacts. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-16 (1984). Specific jurisdiction, on the other hand, is case-linked and confined to “adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).

Only specific personal jurisdiction is at issue here. In the Fifth Circuit, courts evaluate the issue with a three-step analysis. Deep South Comms., LLC v. Fellegy, 652 F.Supp.3d 636, 652 (M.D. La. 2023) (citing Nuovo Pignone v. STORMAN ASIA M/V, 310 F.3d 374, 378 (5th Cir. 2002)). First, the court determines whether minimum contacts exist between the defendant and the forum state. Then the court considers whether the cause of action “arises out of or results from the defendant's forum-related contacts.” Id. Finally, if the plaintiff satisfies the first two prongs, the burden shifts to the defendant to defeat jurisdiction by showing that an exercise thereof “would be unfair or unreasonable.” Id. (quoting Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 271 (5th Cir. 2006)). Plaintiff's burden on the first two prongs, as set out above, is only to make out a prima facie case. Meanwhile, the defendant's burden on the third prong is to establish a “compelling case” against the exercise of jurisdiction. Walk Haydel & Assocs., Inc. v. Coastal Power Prod. Co., 517 F.3d 235, 241 (5th Cir. 2008); Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 215 (5th Cir. 1999) (quoting Burger King, 471 U.S. at 477).

III. LAW & ANALYSIS

The First Amended Complaint contains no individualized allegations against NNAS, and instead generally alleges the involvement of all Novo Nordisk defendants in the manufacture and marketing of Ozempic. As NNAS notes, there are no allegations that the Danish entities directed any activities towards Louisiana or purposefully availed themselves of this state's benefits and protections. Plaintiff maintains, however, that jurisdiction attaches to these entities because they placed Ozempic into the stream of commerce, desiring that it would be sold in the United States and foreseeing that it would reach Louisiana.

The stream of commerce doctrine recognizes that a defendant may subject itself to a state's jurisdiction “by sending its goods rather than its agents into the forum.” In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant Prod. Liab. Litig., 888 F.3d 753, 778 (5th Cir. 2018) (quoting J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 882 (2011)). Accordingly, minimum contacts are established when a defendant delivers its product into the stream of commerce with the expectation that it will be purchased or used by consumers in the forum state. Ainsworth v. Moffett Eng'g, Ltd., 716 F.3d 174, 177 (5th Cir. 2013). “Under that test, mere foreseeability or awareness is a constitutionally sufficient basis for personal jurisdiction if the defendant's product made its way into the forum state while still in the stream of commerce, but the defendant's contacts must be more than random, fortuitous, or attenuated, or of the unilateral activity of another party or third person.” Id. (cleaned up).

Novo Nordisk A/S manufactures Ozempic and, according to FDA correspondence, is responsible for its assembly, labeling, and packaging. Doc. 79, att. 8, p. 53; doc. 78, att. 11, p. 202. According to its 2022 Annual Report: “Apart from ownership of the subsidiaries in the Novo Nordisk Group, activity within [Novo Nordisk A/S] mainly comprises sales, research and development, production, corporate activities and support functions.” Doc. 79, att. 4, p. 105. The company's net sales of Ozempic in the United States for 2022 amounted to 38.75 million Danish Kroner (DKK)^[1], comprising 64.8 percent of its worldwide sales of the product, and Novo Nordisk A/S emphasizes the country's significance in its financial outlook. Id. at 62, 34. Novo Nordisk A/S also has employees^[2]in Louisiana, where it has conducted dozens of clinical trials (including twenty-five for Ozempic). Doc. 79, atts. 22-24, 15-19. Lake Charles, Louisiana, ranks as one of the top 20 areas in the country for rising Ozempic prescriptions. Doc. 79, att. 13. Finally, Medicaid reimbursements for Ozempic have risen steadily in Louisiana since 2019, reaching $98 million for 104,876 prescriptions for the first three quarters of 2023. Doc. 79, att. 14.

NNAS attempts to analogize this matter to Nicastro supra, 564 U.S. 873. There a New...