Mirena Iud Prods. Liab. Litig. v. Anderson

IN RE: MIRENA IUD PRODUCTS LIABILITY LITIGATION

This Document Relates To

Abrams v. Bayer

Anderson v. Bayer

Blair v. Bayer

Boudreaux v. Bayer

Calamari v. Bayer

Campbell v. Bayer

Childers v. Bayer

Cochran v. Bayer

Condich v. Bayer

Cook v. Bayer

Davis v. Bayer

Dollins v. Bayer

Fitzgerald v. Bayer

Hartford v. Bayer

Helms v. Bayer

Horn v. Bayer

Jones v. Bayer

Lovett v. Bayer

Medinger v. Bayer

Offlee v. Bayer

Olteanu v. Bayer

Parnell v. Bayer

Piscionere v. Bayer

Schroeder v. Bayer

Smith v. Bayer

Spurlock v. Bayer

Thate v. Bayer

Wojtowicz v. Bayer

Walton v. Bayer

Williams v. Bayer

Wilmot v. Bayer

13-MD-2434 (CS)

14-CV-5229

14-CV-1967

14-CV-6178

14-CV-1676

14-CV-6874

14-CV-34

14-CV-1612

13-CV-8883

14-CV-6875

14-CV-1673

14-CV-6200

14-CV-6611

14-CV-2572

14-CV-1983

14-CV-6179

14-CV-6879

13-CV-3383

14-CV-3895

14-CV-4521

14-CV-1675

13-CV-8860

14-CV-4507

14-CV-7311

14-CV-4522

14-CV-5232

14-CV-6479

14-CV-4509

13-CV-4693

14-CV-4525

14-CV-3485

14-CV-1979

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

January 9, 2015

OPINION & ORDER

Appearances:

Brian A. Pfleeger, Esq.

Michael Hingle & Associates, LLC

Slidell, Louisiana

Counsel for Terrione Anderson, Timira Campbell, Angie Cochran, Nicole Hartford,

Melissa Jones, Ioana Olteanu, and Michelle Wilmot

Allan Berger, Esq.

Andrew Geiger, Esq.

Allan Berger & Associates, PLC

New Orleans, Louisiana

Counsel for Cathy Boudreaux, Cynthia Childers, Kelly Cook, Luciana Offlee,

and Janet Williams

Brian S. Kabateck, Esq.

Richard L. Kellner, Esq.

Lina B. Melidonian, Esq.

Kabateck Brown Kellner, LLP

Los Angeles, California

Counsel for "California Plaintiffs"

Bradley C. West, Esq.

The West Law Firm

Shawnee, Oklahoma

Counsel for Rachel Fitzgerald

Pamela A. Borgess, Esq.

James G. O'Brien, Esq.

Zoll, Kranz & Borgess, LLC

Toledo, Ohio

Counsel for Rebecca Wojtowicz

Shayna S. Cook, Esq.

Goldman Ismail Tomaselli Brennan & Baum, LLP

Chicago, Illinois

William P. Harrington, Esq.

Bleakley Platt & Schmidt, LLP

White Plains, New York

Counsel for Defendants

Seibel, J.

Before the Court are Defendants' Motions to Dismiss the 31 member cases in the caption pursuant to Case Management Order No. ("CMO") 22A, (13-MD-2434, Doc. 1510). Under CMO 22A, Defendants are permitted to submit a letter explaining why each case should be dismissed consistent with this Court's opinion in Truitt v. Bayer, No. 13-CV-7811, 2014 WL 2971179 (S.D.N.Y. July 2, 2014). Each Plaintiff against whom Defendants so move must theneither voluntarily dismiss her case with prejudice or set forth the specific facts and/or law that distinguish her case from Ms. Truitt's. Despite the number of individual member cases that Defendants have moved to dismiss, Defendants' motions implicate only four discrete sets of issues, and each case fits into one of these four groups.

The parties' familiarity with the procedural history of this multi-district litigation ("MDL") - including the discussion of fact and law in Truitt, which is hereby incorporated - and the facts alleged in each individual member case is presumed.

I. Applicable Legal Principles

A. Standard of Review

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (alteration, citations, and internal quotation marks omitted). While Federal Rule of Civil Procedure 8 "marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, . . . it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Iqbal, 556 U.S. at 678-79.

In considering whether a complaint states a claim upon which relief can be granted, the court "begin[s] by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth," and then determines whether the remaining well-pleadedfactual allegations, accepted as true, "plausibly give rise to an entitlement to relief." Id. at 679. Deciding whether a complaint states a plausible claim for relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'shown' - 'that the pleader is entitled to relief.'" Id. (alteration omitted) (quoting Fed. R. Civ. P. 8(a)(2)).

A defendant may raise a statute of limitations defense in a Rule 12(b)(6) motion to dismiss. Gelber v. Stryker Corp., 788 F. Supp. 2d 145, 153 (S.D.N.Y. 2011) (citing Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989)).¹ The plausibility standard announced by the Supreme Court in Iqbal and Twombly applies to motions to dismiss based on statutes of limitations, see George v. Strayhorn, No. 11-CV-3701, 2014 WL 1259613, at *2 (S.D.N.Y. Mar. 24, 2014), and "the Court can only grant a motion to dismiss based on statute of limitations grounds if there is no factual question as to whether the alleged violations occurred within the statutory period," Clement v. United Homes, LLC, 914 F. Supp. 2d 362, 369 (E.D.N.Y. 2012).

B. Leave to Amend

Leave to amend a complaint should be freely given "when justice so requires." Fed. R. Civ. P. 15(a)(2). It is "within the sound discretion of the district court to grant or deny leave to amend." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). "Leave to amend, though liberally granted, may properly be denied for: 'undue delay, bad faith or dilatorymotive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.'" Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Further, a plaintiff need not be given leave to amend if she fails to specify how amendment would cure the pleading deficiencies in her complaint. See TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014); see also Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011) (district court did not err in dismissing claim with prejudice in absence of any indication plaintiff could or would provide additional allegations leading to different result).

II. Louisiana Plaintiffs²

The twelve Louisiana Plaintiffs submitted substantively identical oppositions to Defendants' motions to dismiss, contending that their claims are timely under Louisiana's one-year prescription period for products liability claims, La. Civ. Code Ann. Art. § 3492, and Louisiana's version of the discovery rule.³ These Plaintiffs failed, however, to comply with CMO 22A, as they did not explain either how Louisiana's discovery rule differs from Texas's and Indiana's discovery rules (which were at issue in Truitt), or how the factual allegations in their complaints differed from those made by Ms. Truitt. For this reason alone the Louisiana Plaintiffs' cases are subject to dismissal. See In re World Trade Ctr. Litig., 722 F.3d 483, 487(2d Cir. 2013) ("in complex cases" district courts are accorded "particular deference [when making] discretionary determination[s] undertaken to manage the litigation before the court").

Nevertheless, even considering the substance of the Louisiana Plaintiffs' argument, it is clear that Louisiana's discovery rule does not render their claims timely. Louisiana's discovery rule delays the running of the prescription period until "the injured party discovers or should have discovered the facts upon which [her] cause of action is based." Wimberly v. Gatch, 635 So. 2d 206, 211 (La. 1994). Under this rule, which is strictly construed, Terrebonne Parish Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303, 320 (5th Cir. 2002),

[w]here allegations of medical causation are vital to the cause of action, prescription does not run until plaintiff has actual or constructive notice of the causal connection between the medical treatment and the subsequent condition. Such constructive knowledge exists when plaintiff has sufficient information to incite curiosity, to excite attention, or to put a reasonably minded person on guard and call for inquiry.

Stuart v. Am. Cyanamid Co., 158 F.3d 622, 630 (2d Cir. 1998) (internal quotation marks and citations omitted) (applying Louisiana law). Thus, the time to sue begins to run when a plaintiff has a reasonable basis to pursue a claim against a specific defendant. Terrebonne, 290 F.3d at 320.

Louisiana Plaintiffs argue that, on a Fed. R. Civ. P. 12(b)(6) motion, the Court cannot determine when the statute of limitations began to run, because discovery is needed to determine when each Plaintiff knew that Mirena was at fault for her injuries. (See Hingle Letter 2; Berger Letter 2.) Under Louisiana law, however, it is Plaintiff's burden to demonstrate the timeliness of a facially time-barred claim, see Mungovan v. CitiMortgage, Inc., No. 12-CV-616, 2013 WL 3783982, at *2 (E.D. La. July 18, 2013), and under federal law it is her burden to allege facts plausibly suggesting she can do so, see George, 2014 WL 1259613, at *2; see also Angiulo v. Cnty. of Westchester, No. 11-CV-7823, 2012 WL 5278523, at *3 n.4 (S.D.N.Y. Oct. 25, 2012)(under Iqbal, "a plausible claim must come before discovery, not the other way around") (emphasis in original). Moreover, putting burdens aside, each of the Louisiana Pl...