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In Re Hydroxycut Marketing and Sales v. Health Sciences Usa

May 24, 2011


The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge


Defendant Iovate Health Sciences USA, Inc. ("IHSUSA"), has filed a motion to dismiss Plaintiff's Complaint in its entirety for failure to state a claim. Defendant General Nutrition Corporation ("GNC") has filed a motion to dismiss Counts I, II, III. V, VI, VII, and VIII. For the reasons discussed below, IHSUSA's motion is GRANTED IN PART AND DENIED IN PART and GNC's motion is DENIED.


On November 25, 2009, Plaintiff filed her complaint in Louisiana state court. The action was removed to the Eastern District of Louisiana (La. Civ. Case No. 09cv8070 LMA- DEK). Subsequently, the case was transferred to the Southern District of California as a tag-along action to the In re Hydroxycut Marketing and Sales Practices multi-district litigation currently pending before the Court. Upon transfer, the case was assigned a separate civil case number in the Southern District of California (Case No. 10cv537 BTM(CAB)). On October 4, 2010, Plaintiff filed her Second Amended Complaint ("SAC")

Plaintiff alleges that in 2008, she purchased two containers of Hydroxycut Max! 120 Rapid Release Liquid Caps from GNC in Thibodaux, Louisiana. (SAC ¶ 20.) According to Plaintiff, after she started taking the product, she began to experience extreme arrhtymia and was hospitalized. (SAC ¶ 25.) Plaintiff was diagnosed with cardiac dysrhythmias NED, rhabdomylosis, bladder problems, discolored urine, and pulmonary heart disease. (Id.) Plaintiff alleges that Defendants knew or should have known that Hydroxycut was defective, but misrepresented the safety of the product and failed to warn consumers of the health risks associated with the product. (SAC ¶ 27.)

Plaintiff asserts the following claims against the IHSUSA and GNC: (1) product liability; (2) product liability-warning; (3) breach of express warranty; (4) negligence; (5) gross negligence; (6) recklessness; (7) breach of implied warranty; and (8) fraud and misrepresentation.


A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be granted only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). When reviewing a motion to dismiss, the allegations of material fact in plaintiff's complaint are taken as true and construed in the light most favorable to the plaintiff. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Although detailed factual allegations are not required, factual allegations "must be enough to raise a right to relief above the speculative level." Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). "A plaintiff's obligation to prove 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." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not show[n] that the pleader is entitled to relief." Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1950 (2009) (internal quotation marks omitted). Only a complaint that states a plausible claim for relief will survive a motion to dismiss. Id.


A. IHSUSA's Motion

IHSUSA contends that all of Plaintiff's claims against it are barred because the Louisiana Products Liability Act ("LPLA"), La. Rev. Stat. 9:2800.51-60, provides the exclusive remedy.*fn1 With the exception of Plaintiff's redhibition claim, the Court agrees that Plaintiff's claims must be dismissed due to the exclusivity of the LPLA.

The LPLA provides the exclusive remedy against manufacturers for damages resulting from a defective product. La. Rev. Stat. 9:2800.52. To prevail on an LPLA claim, the Plaintiff must establish the following four elements: (1) that the defendant is a manufacturer; (2) that the plaintiff' damage was proximately caused by a characteristic of the product; (3) that the characteristic made the product "unreasonably dangerous"; and (4) that the plaintiff's damage arose from a reasonably anticipated use of the product by the plaintiff or someone else. La. Rev. Stat 9:2800.54. A plaintiff may prove that a product was "unreasonably dangerous" as a result of (1) a defect in construction or composition; (2) defect in design; (3) inadequacy of warning; or (4) failure to conform to an express warranty. La. Rev. Stat. 9:2800.54(B)(1)-(4).

Because the LPLA provides the exclusive remedy for products liability actions against manufacturers under Louisiana law, plaintiffs may not seek recovery against manufacturers based on theories such as negligence, breach of warranty, or fraud. See, e.g., O'Neil v. Abbott Laboratories, Inc., 2011 WL 902427, at *3 (E.D. La. March 11, 2011) ("[P]laintiffs alleging products-liability causes of action post-LPLA do not have access to the following theories of liability: negligence, strict liability and breach of express warranty."); Winslow v. W.L. Gore & Assoc., Inc., 2011 WL 866184, at *2 (W.D. La. Jan. 21, 2011) (dismissing claims of fraud, misrepresentation, and implied warranty because claims were not recognized under the LPLA); Barrette v. Dow Agrosciences, LLC, 2002 WL 31365598, * 3 (E.D. La. Oct. 18, 2002) (dismissing claims of negligence, breach of implied warranty, and fraud and misrepresentation claims as a result of the exclusivity of the LPLA). Plaintiff's claims against IHSUSA are governed by the LPLA. Therefore, Plaintiff's claims for negligence, recklessness, breach of express and implied warranty, and fraud must be dismissed. However, Plaintiff may re-plead her "product liability" claims as claims under the LPLA.

IHSUSA also argues that Plaintiff cannot recover damages under Louisiana's law of redhibition or punitive damages. In the SAC, Plaintiff indicates that she seeks reasonable attorney's fees, damages, and costs as allowed under Louisiana law of redhibition. (SAC ΒΆ 31, Prayer for Relief.) "A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale." La. C.C. art. 2520. The LPLA defines "damage" as excluding damages recoverable under redhibition. La. R.S. ...

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