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Johnson v. International Laboratories, LLC

United States District Court, E.D. Kentucky, Southern Division

April 26, 2019

FRAN JOHNSON, Plaintiff,


          Gregory F. Van Tatenhove United States District Judge

         Plaintiff Fran Johnson maintained a prescription for antiplatelet medication but potentially received, upon filling that prescription, cholesterol medication. By the time she received a recall notice, she had already ingested all thirty pills in question and disposed of their packaging. Because she had no proof of pills or packaging, she was denied a refund by Defendants International Laboratories, LLC, and Quality Packaging Specialists International, LLC. Now, she brings this action on behalf of herself and others similarly situated for breaches of warranties and violations of consumer protection laws. Defendants have moved to dismiss her complaint, and for the foregoing reasons, the motion to dismiss is GRANTED IN PART and DENIED IN PART.


         Fran Johnson was proscribed Clopidogrel, an antiplatelet medication, in 2010, to reduce her risk of heart disease and stroke. [R. 1 at 5.] She regularly refilled this prescription, carrying the brand name Plavix, at the Walmart Pharmacy in Pikeville, Kentucky. Id. Defendant International Laboratories, LLC, is a packaging company, which, at all relevant times, provided the Pikeville Walmart Pharmacy with Clopidogrel. Id. In February 2017, Defendant Quality Packaging Specialists International, LLC, acquired full ownership of International Laboratories. Id. at 6.

         On January 10, 2018, International Laboratories announced a voluntary recall of Clopidogrel Lot # 1147099A. [R. 1-1.][1] According to the recall notice, bottles packaged in Lot # 1147099A were mislabeled, and could have contained either Clopidogrel or Simvastatin. Id. Simvastatin, commonly known as Zocor and/or FloLipid, is used to help lower LDL cholesterol and raise HDL cholesterol.

         Walmart Pharmacy sent Ms. Johnson a letter on January 29, 2018, informing her of the recall by International Laboratories. [R. 1-2.] The letter stated, “Impacted Clopidogrel 75 mg 30 count bottle lot number is: Lot # 117099A which may be found on the product label if your prescription was dispensed in an original manufacturer's bottle. Product dispensed by the pharmacy in an amber prescription vial may not be impacted.” Id. at 1. Included was a copy of the affected bottle label and comparative photos of Clopidogrel tablets and Simvastatin tablets. Id. at 3. The letter also specified directions for patients who might be affected by the recall to contact International Laboratories and/or to return the product to Walmart Pharmacy for verification. Id. at 1.

         Ms. Johnson attempted to obtain a refund by calling International Laboratories. [R. 1 at 5.] However, she claims she was not refunded because she had already consumed the product and disposed of the pill bottle with the label and lot number. Id. She now seeks to bring a class action on behalf of herself and all potential class members who did not receive the correct medications. Id. at 6. Against both International Laboratories and Quality Packaging Specialists, Ms. Johnson asserts claims of breach of express and implied warranties, unjust enrichment, violations of consumer protection and consumer fraud acts, and vicarious liability. Id. at 6-10. Defendants seek to have this matter dismissed pursuant to Federal Rules of Civil Procedure 12(b)(6), 12(b)(7), and 9(b).

         This is not the only action Ms. Johnson has filed against the Defendants. Also pending before the Court is a personal injury lawsuit, brought on behalf of only Ms. Johnson, against Walmart, Inc., Walmart Stores East, L.P., and Stephanie Wallace, the Pharmacist-in-Charge at the Pikeville Walmart Pharmacy, in addition to International Laboratories and Quality Packaging Specialists. [Johnson v. Walmart, Inc., Civ. No. 7:19-cv-00018-KKC, R. 1-3 at 2-4.] That lawsuit alleges theories of negligence against Walmart and Dr. Wallace for failure to identify the mislabeling of her prescription. Id. at 7-9. That lawsuit seeks damages for the stroke she experienced in February of 2018, shortly after she believes she received the wrong medication. Id. at 5-7. In contrast, this matter alleges that she and other members of the proposed class did not receive what they paid for, and that defendants were unjustly enriched because of that mistake. [R. 1.]



         A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of a plaintiff's complaint. In reviewing a Rule 12(b)(6) motion, the Court “construe[s] the complaint in the light most favorable to the plaintiff, accept[s] its allegations as true, and draw[s] all inferences in favor of the plaintiff.” DirecTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citation omitted). The Court, however, “need not accept as true legal conclusions or unwarranted factual inferences.” Id. (quoting Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir. 2000)). The Supreme Court explained that in order “[t]o survive a 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.'” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). See also Courier v. Alcoa Wheel & Forged Products, 577 F.3d 625, 629 (6th Cir. 2009).

         Defendants allege that because Ms. Johnson no longer has the pill bottle or the pills, she will not be able to provide evidence that she received Simvastatin instead of Clopidogrel, and therefore fails to state a claim upon which relief may be granted. [R. 6-1 at 6-10.][2] However, this is the improper stage at which to evaluate sufficiency of evidence. Ms. Johnson alleges that she received the wrong medication, and thus the Court must accept that statement as true. DirecTV, Inc., 487 F.3d at 476. She does not have her pill bottle or any of the pills she received, but that does not preclude her from providing alternative evidence to prove her claim. The Court is “reluctant to dismiss colorable claims which have not had the benefit of factual discovery.” Evans-Marshall v. Bd. of Educ. Of Tipp City Exempted Village Sch. Dist., 428 F.3d 223, 228 (6th Cir. 2005). Any claims that Ms. Johnson's complaint lacks factual merit are to be dealt with through summary judgment, not a motion to dismiss. Id. Thus, Defendants' motion as it relates to dismissal under Rule 12(b)(6) is denied.


         Defendants also assert that Ms. Johnson fails to allege facts sufficient to state a claim for violation of the Kentucky Consumer Protection Act. [R. 6-1 at 9-10.] Under the Kentucky Consumer Protection Act, “Unfair, false, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” Ky. Rev. Stat. § 367.170(1). For this purpose, “unfair” means “unconscionable.” Ky. Rev. Stat. § 367.170(2). When alleging fraud or mistake, a plaintiff “must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.” Fed. R. Civ. Pro. 9(b). The Sixth Circuit has interpreted this to mean “the plaintiff must allege (1) the time, place, and content of the alleged misrepresentation, (2) the fraudulent scheme, (3) ...

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