United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge
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.
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.
January 10, 2018, International Laboratories announced a
voluntary recall of Clopidogrel Lot # 1147099A. [R.
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.
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.
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).
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.]
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).
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.] 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.
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) ...