Neto v. Bristol-Myers Squibb

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EUGENIA NETO, Representative for Manuel F. Neto Deceased Plaintiff, v. BRISTOL-MYERS SQUIBB AND UPSHER SMITH LABORATORIES, Defendants.

No. 3:22-cv-1344 (VAB)

United States District Court, D. Connecticut

May 26, 2023

RULING AND ORDER ON MOTION TO DISMISS

VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE

Eugenia Neto (“Plaintiff”), Representative for Manuel F Neto (Deceased), appearing pro se, has sued Bristol Myers Squibb Company (or “BMS”), Upsher Smith Laboratories (or “USL”) (collectively “Defendants”) alleging that Defendants failed to adequately warn of the hemorrhaging suffered by the decedent and subsequent death by taking brand name prescription generic, and/or Coumadin in violation of the Connecticut Products Liability Act (or “CPLA”), Conn. Gen. Stat. § 52-572m, et seq. Notice of Removal at 5, ECF No. 1-1 (Oct. 25, 2022) (“Compl.”).

Defendants have filed a motion to dismiss Plaintiff's Complaint for failure to state a claim upon which relief can be granted. Defs.' Mot. to Dismiss at 2, ECF No. 8 (Nov. 1, 2022) (“Mot.”).

For the following reasons, the motion to dismiss is GRANTED.

To the extent the deficiencies identified in this Complaint can be remedied, Plaintiff may move for leave to file an Amended Complaint by July 7, 2023. Failure to file an Amended Complaint by that date will result in the dismissal of this case with prejudice.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Allegations

Manuel Neto allegedly used Coumadin, a product allegedly manufactured and sold by Defendants, including the Bristol Myers Squibb entities, during all relevant times. Compl. ¶ 124.

Mr. Neto allegedly took the Coumadin without any warnings from Defendants regarding the symptoms of hemorrhaging, or in turn, death from taking Coumadin. Id. ¶ 125. In addition, Mr. Neto allegedly would not have taken Warfarin had he known of or been fully and adequately informed by Defendants, or by physicians of Mr. Neto, regarding the increased risks and serious dangers of taking Warfarin. Id.

B. Procedural History

On October 25, 2022, Eugenia Neto, the appointed representative of Mr. Neto, now deceased, filed this lawsuit. See Compl.

On November 1, 2022, Bristol Myers Squibb Company filed a notice regarding the notice of removal stating that USL has not been served. See Notice re Notice of Removal at 1, ECF No. 7 (Nov. 1, 2022) (“Notice”).

On that same day, Bristol Myers Squibb Company filed their motion to dismiss the Complaint. Mot.

Plaintiff have not filed an opposition to Defendants' motion to dismiss, and the deadline for responding to the motion has passed. See D. Conn. L. Civ. R. 7(a)2 (providing twenty-one days for the filing of a responsive pleading).

II. STANDARD OF REVIEW

To survive a motion to dismiss under 12(b)(6), a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). Any claim that fails “to state a claim upon which relief can be granted” will be dismissed. Fed.R.Civ.P. 12(b)(6). In reviewing a complaint under Rule 12(b)(6), a court applies a “plausibility standard” guided by “[t]wo working principles.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

First, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“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 ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” (internal citations omitted)). Second, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679. Thus, the complaint must contain “factual amplification . . . to render a claim plausible.” Arista Records LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (quoting Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009)).

When reviewing a complaint under Federal Rule of Civil Procedure 12(b)(6), the court takes all factual allegations in the complaint as true. Iqbal, 556 U.S. at 678. The court also views the allegations in the light most favorable to the plaintiff and draws all inferences in the plaintiff's favor. Cohen v. S.A.C. Trading Corp., 711 F.3d 353, 359 (2d Cir. 2013); see also York v. Ass'n of the Bar of N.Y., 286 F.3d 122, 125 (2d Cir. 2002) (“On a motion to dismiss for failure to state a claim, we construe the complaint in the light most favorable to the plaintiff, accepting the complaint's allegations as true.”).

A court considering a motion to dismiss under Rule 12(b)(6) generally limits its review “to the facts as asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated in the complaint by reference.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). A court may also consider “matters of which judicial notice may be taken” and “documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit.” Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993); Patrowicz v. Transamerica HomeFirst, Inc., 359 F.Supp.2d 140, 144 (D. Conn. 2005).

A plaintiff's “[f]actual allegations must be enough to raise a right to relief above the speculative level” and assert a cause of action with enough heft to show entitlement to relief and “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 555, 570. A claim is facially plausible if “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

Although the Federal Rules of Civil Procedure do not require “detailed factual allegations,” a complaint must offer more than “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual enhancement.” Twombly, 550 U.S. at 555-57. Plausibility at the pleading stage is nonetheless distinct from probability, and “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the claim] is improbable, and . . . recovery is very remote and unlikely.” Id. at 556 (internal quotation marks omitted).

III. DISCUSSION^[1]

Defendants raise two arguments in their motion to dismiss: (1) that Plaintiff fails to allege properly a products liability claim; and (2) even if Plaintiff does adequately allege such a claim, any such claim fails as a matter of law.

The Court will address each argument in turn.

A. The Alleged Failure to State a Product Liability Claim

Courts evaluating a Connecticut Products Liability Act claim engage in a three-step analysis. See Karavitis v. Makita U.S.A., Inc., 243 F.Supp.3d 235, 252-53 (D. Conn. 2017).

First, a plaintiff must satisfy the five elements governing all product liability claims. See id. at 252. Plaintiff must allege the following: “(1) the defendant was engaged in the business of selling the product; (2) the product was in a defective condition unreasonably dangerous to the consumer or user; (3) the defect caused the injury for which compensation was sought; (4) the defect existed at the time of the sale; and (5) the product was expected to and did reach the consumer without substantial change in condition.” Schulz v. Medtronic, Inc., No. 3:21-CV-00414 (MPS), 2022 WL 503960, at *3 (D. Conn. Feb. 18, 2022) (quoting Bifolck v. Philip Morris, Inc., 324 Conn. 402, 434 (2016)); see also Phila. Indem. Ins. Co. v. Lennox Insu., Inc., No. 3:18-cv-217 (CSH), 2019 WL 1258918, at *3 (D. Conn. Mar. 18, 2019) (“[T]he plaintiff must plead and prove that the product was defective and that the defect was the proximate cause of the plaintiff's injuries [to succeed on a products liability claim].” (quoting Haesche v. Kissner, 229 Conn. 213, 218 (1994))).

Second, the Court must determine whether the product instructions or warnings “were required and, if required, whether they were adequate.” Schulz, 2022 WL 503960, at *4 (internal quotation marks omitted). In that determination, the following factors are relevant: “(1) [t]he likelihood that the product would cause the harm suffered by the claimant; (2) the ability of the product seller to anticipate at the time of manufacture that the expected product user would be aware of the product risk, and the nature of the potential harm; and (3) the technological feasibility and cost of warnings and instructions.” Karavitis, 243 F.Supp.3d at 252-53 (citing Conn. Gen. Stat. § 52-572q(b)).

Third, a plaintiff must establish that “if adequate warnings or instructions had been provided, the claimant would not have suffered the harm.” Id. at 253 (quoting Conn. Gen. Stat. § 52-572q(c)); see also Ferry v. Mead Johnson & Co., LLC, 514 F.Supp.3d 418, 432 (D. Conn. 2021).

Defendants argue that “Plaintiff fails to allege the required elements of a product liability claim,” and “Plaintiff pleads no facts that show the Coumadin taken by the decedent was in a defective condition unreasonable or dangerous to the consumer or user.” Mot. at 7. In addition, Defendants argue that “Plaintiff also fails to plead any facts that any defect existed at the time the decedent purchased the Coumadin he ingested” and “the Complaint is silent as to whether BMS provided any warnings to the decedent's physician and how such a warning was purportedly inadequate.” Id. Defendants also argue that Plaintiff fails to show causation by providing sufficient facts within the Complaint. See id. Moreover, Defendants...