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Raskas v. Teva Pharmaceuticals USA, Inc.

United States District Court, E.D. Missouri, Eastern Division

January 8, 2018

JONATHAN RASKAS, personally and as administrator of the ESTATE OF RALPH RASKAS, Plaintiff,
v.
TEVA PHARMACEUTICALS USA, INC.; ACTA VIS ELIZABETH, LLC; and JOHN DOE DEFENDANTS, Defendants.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE UNITED STATES DISTRICT JUDGE.

         Teva Pharmaceuticals, USA, Inc. (Teva) and Actavis Elizabeth, LLC (Actavis) move this Court to dismiss the claims against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. [ECFNos. 8, 13]

         Background

         Accepting as true the allegations in the complaint, see Tension Envelope Corp. v JBM Envelope Corp., 876 F.3d 1112, 1116 (8th Cir. 2017), the following led to the untimely death of Ralph Raskas (Raskas).

         When 19 years of age, Raskas sought emergency room treatment in a Missouri hospital for nausea and vomiting. (Compl. ¶12, ECF No. 5.) He was treated with an intravenous injection of metoclopramide. (Id. ¶13.) This metoclopramide was manufactured by Teva. (Id.) On discharge, he was prescribed ten milligram dosages of metoclopramide to be taken four times a day. (Id. ¶14.) A five-day supply of the prescription was dispensed by a pharmacy the same day. (Id.) This metoclopramide was manufactured by Actavis. (Id. ¶15.) Raskas took the metoclopramide and subsequently developed a movement disorder. (Id. ¶¶ 15-17, 19.) The disorder caused Raskas pain and restlessness in his legs and led to him having to take a medical leave from a six-year medical school program. (Id. ¶¶11, 18.)

         Raskas pursued treatment at a Movement Disorders Center and with a neuropsychiatrist specializing in movement disorders. (Id. ¶20-2l.) The specialist diagnosed him as having '"drug-induced acute akathisia." (Id. ¶21-) Because of the pain and akathisia, Raskas attempted suicide three times; tragically, he succeeded on the third attempt. (Id. ¶23-25.)

         Jonathan Raskas (Plaintiff), his father and the administrator of his estate, alleges that metoclopramide caused Raskas' neurological injuries and suicide. (Id. ¶¶ 25-38, 50.)

         Plaintiff further alleges that Teva and Actavis, as manufacturers of the generic form of metoclopramide, breached their duty to report any adverse effects of the drug to the Food and Drug Administration (FDA) and to propose to the FDA a stronger warning label. (Id. ¶53-54.)

         Plaintiff seeks relief from Teva and Actavis for the death of Raskas under claims of strict liability for the defective design of metoclopramide (Count I); strict liability for the failure to warn of the serious health risks resulting from taking metoclopramide (Count II); negligent design of metoclopramide (Count III); negligent failure to warn of the serious health risks (Count IV); a negligent quality system that did not identify the serious health risks (Count V); a negligent failure to modify the warning labels for metoclopramide, including to incorporate in those labels the adverse findings of the European Union (Count VI[1]); and, pursuant to Mo.Rev.Stat. §§ 537.080, 537.090, the wrongful death of Raskas (Count VII[2]). Plaintiff also brings a claim for loss of consortium (Count VII).

         Citing PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011), and Mutual Pharm. Co. v. Bartlett, 133 S.Ct. 2466 (2013), Teva and Actavis seek the dismissal of all claims against them as being preempted by federal law. Plaintiff argues preemption does not apply.

         Discussion

         Rule 12(b)(6) Standard.

         "To survive a 12(b)(6) 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.'" McShane Constr. Co. v. Gotham Ins. Co., 867 F.3d 923, 927 (8th Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "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. (quoting Iqbal, 556 U.S. at 678). "'[Determining whether a complaint states a plausible claim for relief... [is] a context-specific task that requires [this] [C]ourt to draw on its judicial experience and common sense.'" Id. (quoting Iqbal, 556 U.S. at 678-79) (second and third alterations in original).

         Counts I and HI: Design. In Count I, Plaintiff alleges Teva and Actavis are strictly liable for defects in the design of metoclopramide; in Count III, he alleges they were negligent in designing the drug.

         The metoclopramide taken by Raskas was manufactured by Teva or Actavis.[3] Metoclopramide is a generic form of Reglan. PLIVA, 564 U.S. at 609. Plaintiff alleges the metoclopramide "was defective in design and/or formulation." (Compl. ¶64.) "Missouri ... imposes design defect liability if the plaintiff establishes 'the product, as designed, is unreasonably dangerous and therefore "defective, " and that the demonstrated defect caused [the plaintiffs] injuries.'" Brinkley v. Pfizer, Inc.,772 F.3d 1133, 1140 (8th Cir. 2014) (quoting Nesselrode v. Exec. Beechcraft, Inc.,707 ...


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