The opinion of the court was delivered by: John F. Keenan, United States District Judge
Plaintiff Mary Carol Gallien ("Gallien" or "Plaintiff") filed the instant action against Procter & Gamble Pharmaceuticals, Sanofi-Aventis, and AstraZeneca Pharmaceuticals ("Defendants"), alleging that she sustained personal injuries as a result of using Defendants' bisphosphonate drug Actonel. Defendants move under Fed. R. Civ. P. 12(b)(6) to dismiss the complaint for failure to state a claim under the Louisiana Product Liability Act ("LPLA"). For the reasons that follow, Defendants' motion is granted in part and denied in part.
Gallien is a resident of the state of Louisiana. In March 2005, she began taking Actonel for the treatment and prevention of osteoporosis. Gallien originally filed this lawsuit in the Western District of Louisiana, alleging that she sustained personal injuries, including osteonecrosis of the jaw ("ONJ"), as a result of using Actonel.*fn1 Without reference to any statutory provisions, Gallien generally asserts negligence, negligence per se, negligent misrepresentation, strict liability, breach of express warranty, breach of implied warranty, fraud and misrepresentation, fraudulent concealment, intentional infliction of emotional distress, and negligent infliction of emotional distress claims based on injury allegedly caused by her use of Actonel. She also alleges that Defendants violated "consumer protection statutes enacted in the State of Louisiana." (Compl. ¶ 146). Gallien requests relief in the form of redhibition, medical monitoring, disgorgement, compensatory damages, punitive damages, and attorneys' fees.
On a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must accept the factual allegations of the complaint as true and draw all reasonable inferences in favor of the plaintiff. Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008). The court, however, is not required to accept as true conclusory allegations or "a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986). The district court's function "is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). Therefore, a complaint will be dismissed only where it fails to set forth sufficient facts to state a claim for relief that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Although the Complaint does not set forth the relevant statute under which Plaintiff seeks relief, the parties agree that Louisiana law applies. The LPLA provides the exclusive remedy for any plaintiff injured by a defective product. La. Rev. Stat. Ann. § 9:2800.52. In order to state a claim under the LPLA, plaintiff must establish that: (1) defendant manufactured the product in question; (2) the product proximately caused plaintiff's damages; (3) some defect rendered the product "unreasonably dangerous"; and (4) plaintiff's damages arose from a reasonably anticipated use of the product.
See id. § 9:2800.54(A); Gomez v. St. Jude Med. Daig Div., Inc., 442 F.3d 919, 932 (5th Cir. 2006). Under the LPLA, a manufacturer is liable for damages caused by a product that is "unreasonably dangerous" due to a: (1) manufacturing construction or composition defect;*fn2 (2) design defect; (3) failure to warn; and (4) breach of express warranty. La. Rev. Stat. Ann. § 9:2800.54(B). "These statutory mechanisms for establishing that a product is unreasonably dangerous 'are predicated on principles of strict liability, negligence, or warranty.' However, for causes of action arising after the effective date of the LPLA, negligence, strict liability, and breach of express warranty are not available as theories of recovery against a manufacturer, independent from the LPLA." Stahl v. Novartis Pharms. Corp., 283 F.3d 254, 261 (5th Cir. 2002) (quoting Jefferson v. Lead Indus. Assoc., Inc., 930 F. Supp. 241, 245 (E.D. La. 1996)).
Defendants move to dismiss the Complaint, arguing that the causes of action asserted are not cognizable under the LPLA.
Additionally, Defendants argue that medical monitoring damages, punitive damages, and attorneys' fees are not recoverable under Louisiana law. Thus, the Court's task is to examine the factual allegations of the Complaint to determine the extent to which it adequately states claims under the LPLA.
Since the LPLA's exclusivity provision limits those theories under which Plaintiff can recover from a manufacturer for damage caused by a product, several claims initially must be dismissed under Louisiana law. Specifically, the negligence per se, negligent misrepresentation, breach of implied warranty, fraud and misrepresentation, fraudulent concealment, intentional infliction of emotional distress, negligent infliction of emotional distress, and violation of consumer protection statute claims fall outside the scope of the LPLA and therefore fail to state a claim. See King v. Bayer Pharms. Corp., No. 09 Civ. 0465, 2009 WL 2135223, at *4 (W.D. La. July 13, 2009) (dismissing negligence per se claim under the LPLA); Bladen v. C.B. Fleet Holding Co., 487 F. Supp. 2d 759, 770-71 (W.D. La. 2007) ("[T]his Court finds plaintiffs' [Louisiana Unfair Trade Practices and Consumer Protection Act] allegations . . . are not cognizable under the facts presented, and thus, must be dismissed for the following reasons in particular: (1) the LPLA language is clear and unambiguous and provides the exclusive theory of liability against manufacturers; . . . (3) the LPLA contains no exception for [Unfair Trade Practices and Consumer Protection Act] claims. . . ."); Maurice v. Eli Lilly & Co., No. 04 Civ. 3105, 2005 WL 3542902, at *4 (E.D. La. Nov. 7, 2005) (dismissing negligent misrepresentation and intentional infliction of emotional distress claims under the LPLA); Grenier v. Med. Eng'g Corp., 99 F. Supp. 2d 759, 763 (W.D. La. 2000) (dismissing misrepresentation/fraud, fraud by concealment, and negligent infliction of emotional ...