United States District Court, E.D. Missouri, Eastern Division
JONATHAN RASKAS, personally and as administrator of the ESTATE OF RALPH RASKAS, Plaintiff,
TEVA PHARMACEUTICALS USA, INC.; ACTA VIS ELIZABETH, LLC; and JOHN DOE DEFENDANTS, Defendants.
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE.
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]
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).
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.)
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.)
Raskas (Plaintiff), his father and the administrator of his
estate, alleges that metoclopramide caused Raskas'
neurological injuries and suicide. (Id. ¶¶
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.)
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); and, pursuant to Mo.Rev.Stat.
§§ 537.080, 537.090, the wrongful death of Raskas
(Count VII). Plaintiff also brings a claim for loss
of consortium (Count VII).
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.
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).
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.
metoclopramide taken by Raskas was manufactured by Teva or
Actavis. 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 ...