Dowell v. Astrazeneca PLC, et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DARREN DOWELL 	CIVIL ACTION
VERSUS 	NO: 26-65
TAKEDA PHARMACEUTICALS
AMERICA, INC. ET AL. 	SECTION “H”
ORDER AND REASONS
Before the Court is Defendants’ Motion to Dismiss (Doc. 8). 	For the
following reasons, the Motion is GRANTED.
BACKGROUND
Plaintiff Darren Dowell filed this action against AstraZeneca PLC;
Takeda Pharmaceutical Company Limited; Takeda Pharmaceuticals America,
Inc.; Perrigo Company; Wyeth, LLC; and Pfizer Inc. as the manufacturers and
suppliers of proton pump inhibitors, such as Prilosec, Nexium, Prevacid, and
Protomix (collectively, “PPIs”). Plaintiff alleges that he was prescribed PPIs
beginning 	in 	2006 	until 	he 	was 	diagnosed 	with 	squamous 	cell 	and
adenocarcinoma cancers of his esophagus and stomach in 2024. Plaintiff
alleges that his cancer was caused by his usage of PPIs. He alleges that the
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PPIs manufactured by Defendants were defective, unreasonably dangerous,
and that Defendants failed to warn about the dangers.
Defendants Takeda Pharmaceuticals America, Inc.; Pfizer Inc.; Wyeth,
LLC; and Perrigo Company have moved to dismiss the claims against them,
arguing that Plaintiff’s Complaint contains insufficient allegations to state a
claim.1 Plaintiff has failed to file an opposition to this Motion. The Court may
not, however, simply grant the instant Motion as unopposed. The Fifth Circuit
approaches 	the 	automatic 	grant 	of 	dispositive 	motions 	with 	considerable
aversion.2 Accordingly, this Court will consider Defendants’ arguments in turn.
LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead
enough facts “to state a claim for relief that is plausible on its face.”3 A claim is
“plausible on its face” when the pleaded facts allow the court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.”4
A court must accept the complaint’s factual allegations as true and must “draw
all reasonable inferences in the plaintiff’s favor.”5 The court need not, however,
1 Defendants Takeda Pharmaceutical Company Limited and AstraZeneca PLC have
not been joined in this matter.
2 See, e.g., Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc.,
702 F.3d 794, 806 (5th Cir. 2012); Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir. 2006) (per
curiam); John v. State of Louisiana (Bd. of Trs. for State Colls. and Univs.), 757 F.2d 698,
709 (5th Cir.1985).
3 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 547 (2007)).
4 Id.
5 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
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accept as true legal conclusions couched as factual allegations.6 To be legally
sufficient, a complaint must establish more than a “sheer possibility” that the
plaintiff’s claims are true.7 If it is apparent from the face of the complaint that
an insurmountable bar to relief exists and the plaintiff is not entitled to relief,
the 	court 	must 	dismiss 	the 	claim.8 The 	court’s 	review 	is 	limited 	to 	the
complaint and any documents attached to the motion to dismiss that are
central to the claim and referenced by the complaint.9
LAW AND ANALYSIS
The Louisiana Products Liability Act (“LPLA”) “establishes the exclusive
theories of liability for manufacturers for damage caused by their products. A
claimant may not recover from a manufacturer for damage caused by a product
on the basis of any theory of liability that is not set forth in [the LPLA].”10
Accordingly, considering the facts of Plaintiff’s Complaint, he is limited to
claims under the LPLA. “To maintain a successful products liability action
under 	the 	LPLA, 	a 	plaintiff 	must 	establish 	four 	elements: 	(1) 	that 	the
defendant is a manufacturer of the product; (2) that the claimant’s damage was
proximately 	caused 	by 	a 	characteristic 	of 	the 	product; 	(3) 	that 	this
characteristic made the product ‘unreasonably dangerous’; and (4) that the
claimant’s damage arose from a reasonably anticipated use of the product by
the claimant or someone else.”11 Under the LPLA,
6 Iqbal, 556 U.S. at 678.
7 Id.
8 Lormand, 565 F.3d at 255–57.
9 Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).
10 LA. REV. S TAT. § 2800.52.
11 Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 260–61 (5th Cir. 2002).
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[a] product is unreasonably dangerous if and only if: (1) The
product is unreasonably dangerous in construction or composition
as provided in R.S. 9:2800.55; (2) The product is unreasonably
dangerous in design as provided in R.S. 9:2800.56; (3) The product
is unreasonably dangerous because an adequate warning about
the product has not been provided as provided in R.S. 9:2800.57;
or (4) The product is unreasonably dangerous because it does not
conform to an express warranty of the manufacturer about the
product as provided in R.S. 9:2800.58.12
Here, Plaintiff does not specifically allege that Defendants’ products are
unreasonably dangerous in one or more of these four ways. Accordingly, this
Court will consider whether he has stated a claim under any theory.
A. 	Construction/Composition Defect
First, Defendants allege that Plaintiff has failed to plead sufficient facts
to support a claim under a construction/composition defect theory. To show a
construction/composition defect, a plaintiff must allege that “at the time the
product left its manufacturer’s control, the product deviated in a material way
from 	the 	manufacturer’s 	specifications 	or 	performance 	standards 	for 	the
product or from otherwise identical products manufactured by the 	same
manufacturer.”13 The Fifth Circuit has held that to plead a claim under this
theory, the complaint must specify the defect, “a causal connection between the
failure of the specific manufacturing process and the specific defect in the
process that caused the personal injury.”14 Plaintiff’s Complaint alleges only
that the PPIs were defective and unreasonably dangerous. These vague and
12 LA. REV. S TAT. § 9:2800.54.
13 Flagg v. Stryker Corp., 647 F. App’x 314, 316 (5th Cir. 2016).
14 Funk v. Stryker Corp., 631 F.3d 777, 782 (5th Cir. 2011).
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conclusory allegations are insufficient to state a manufacturing defect claim
under the LPLA.
B. Design Defect
Similarly, Defendants allege that Plaintiff has failed to allege a design
defect claim. To state a claim for a design defect, a plaintiff must show that “at
the time the product left the manufacturer’s control[,] [t]here existed an
alternative 	design 	for 	the 	product 	that 	was 	capable 	of 	preventing 	the
claimant’s damage and that the danger and gravity of that damage outweighed
any adverse effects on the utility of the product and the burden on the
manufacturer of adopting the alternative design.”15 Plaintiff’s Complaint does
not come close to making these specific allegations and therefore does not state
a claim for a design defect under the LPLA.
C. Failure-to-Warn
Next, Defendants argue that Plaintiff has failed to adequately allege a
failure-to-warn claim. “To successfully maintain a failure-to-warn claim under
the LPLA, a plaintiff must demonstrate that the product in question has a
potentially damage-causing characteristic and that the manufacturer failed to
use 	reasonable 	care 	to 	provide 	an 	adequate 	warning 	about 	this
characteristic.”16 “To meet the first prong of this test, we have indicated that a
plaintiff 	must 	provide 	evidence 	about 	the 	‘cause, 	frequency, 	severity, 	or
consequences’ of the dangerous characteristic in question.”17 Plaintiff has
failed to even allege what characteristic of the PPIs made them dangerous,
15 Flagg, 647 F. App’x at 316.
16 Stahl v. Novartis Pharms. Corp., 283 F.3d 254, 264 (5th Cir. 2002).
17 Id.
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much less provide the required specificity. Instead, Plaintiff asserts only
conclusory allegations, such as that the products “possess inherent and known
properties 	that 	make 	them 	unreasonably 	dangerous 	by 	presenting 	high
potential for causing serious injury” or that “health hazards” were “inherent in
the PPIs.”18 These allegations do not satisfy the pleading requirements for a
failure-to-warn claim under the LPLA.
D. Nonconformity to Express Warranty
Finally, Defendants argue that Plaintiff has failed to allege facts to
support a claim for nonconformity to express warranty. To maintain a claim
for nonconformity of express warranty, Plaintiff must allege that “(1) the
manufacturer 	made 	an 	express 	warranty 	regarding 	the 	product, 	(2) 	the
plaintiff was induced to use the product because of that warranty, (3) the
product failed to conform to that express warranty, and (4) the plaintiff’s
damage was proximately caused because the express warranty was untrue.”19
“An ‘express warranty’ is a representation or statement about a product that
affirms the product possesses specified characteristics or qualities. It does not
include a general opinion or general praise.”20 General statements that a
product is safe are insufficient to be deemed express warranties.21 Plaintiff’s
Complaint does not indicate any express warranty made by Defendants.
18 Doc. 1-1.
19 Caboni v. Gen. Motors Corp., 278 F.3d 448, 452 (5th Cir. 2002).
20 Guidry v. Janssen Pharms., Inc., 206 F. Supp. 3d 1187, 1199 (E.D. La. 2016)
(internal citations omitted).
21 See Pellegrin v. C.R. Bard, No. CV 17-12473, 2018 WL 3046570, at *5 (E.D. La. June
20, 2018) (J. Vance) (stating that “plaintiff’s vague and conclusory allegations fail to specify
the contents of defendants’ representations”).
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Accordingly, Plaintiff has not alleged a claim for nonconformity to express
warranty under the LPLA.
As set forth above, Plaintiff’s allegations are woefully insufficient to state
any claim under the LPLA. In addition to the deficiencies already identified,
Plaintiff fails to provide sufficient details to put Defendants on notice of the
claims against them. For example, Plaintiff fails to allege with any specificity
which medication he took, the duration or dosage of each medication, who
prescribed the medication, and who manufactured which medication. That
said, “unless futile, courts generally allow one chance to amend deficient
pleadings before dismissing with prejudice.”22 Accordingly, the Court grants
Plaintiff leave to amend his Complaint to attempt to remedy the deficiencies
identified herein.
CONCLUSION
For the foregoing reasons, the Motion is GRANTED. Plaintiff shall
amend his Complaint within 20 days of this Order to the extent that he can
remedy the deficiencies identified herein. Failure to amend will result in
dismissal without prejudice of Plaintiff’s claims.
New Orleans, Louisiana this 23rd day of March, 2026.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
22 Buc-ee’s, Ltd. v. Bucks, Inc., 262 F. Supp. 3d 453, 467 (S.D. Tex. 2017) (citing Great
Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002)).
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