Kenneth McElroy v. Amylin Pharmaceuticals, Inc. , 573 F. App'x 545 ( 2014 )


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  •                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 14a0596n.06
    No. 13-6185
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    KENNETH RAY MCELROY; JANET MCELROY                     )
    )
    Plaintiffs-Appellants,                          )                    FILED
    )              Aug 05, 2014
    v.                                                     )          DEBORAH S. HUNT, Clerk
    )
    AMYLIN PHARMACEUTICALS, INC.; ELI                      )
    LILLY AND COMPANY; JOHN DOES 1-25;                     )
    HAMILTON COUNTY DEPARTMENT OF                          )
    EDUCATION;  BAXTER,    INC.;   BAXTER                  )
    PHARMACEUTICALS   SOLUTIONS,      LLC;                 )
    WOCKHARDT     LIMITED;       COVIDIEN;                 )
    ON APPEAL FROM THE
    MALLINCKRODT; MALLINCKRODT, INC.;                      )
    UNITED STATES DISTRICT
    BACHEM; WOCKHARDT UK, LTD.                             )
    COURT FOR THE EASTERN
    )
    DISTRICT OF TENNESSEE
    Defendants-Appellees,                           )
    )
    and                                                    )
    )
    HAMILTON COUNTY BOARD OF EDUCATION;                    )
    CIGNA CORPORATION; CIGNA HEALTHCARE,                   )
    INC.;  CONNECTICUT    GENERAL   LIFE                   )
    INSURANCE COMPANY                                      )
    )
    Defendants.                                     )
    Before: MOORE and KETHLEDGE, Circuit Judges; TARNOW, District Judge. *
    KETHLEDGE, Circuit Judge. Kenneth McElroy began taking a diabetes drug named
    Byetta in 2006. Six years later, he began suffering abdominal problems. Without alleging much
    more than that, McElroy sued the drug’s manufacturers and suppliers, claiming that Byetta
    *
    The Honorable Arthur J. Tarnow, Senior Judge for the Eastern District of Michigan, sitting by
    designation.
    No. 13-6185
    McElroy, et al. v. Amylin Pharm., Inc., et al
    caused his abdominal problems. The district court dismissed McElroy’s claims pursuant to Rule
    12(b)(6). We affirm.
    We take the allegations in McElroy’s complaint as true. See Tyler v. DH Capital Mgmt.,
    Inc., 
    736 F.3d 455
    , 459 (6th Cir. 2013). McElroy was born in 1960 and suffers from Type-2
    diabetes. He began taking Byetta in 2006; in 2008, per the direction of his physician, McElroy
    began injecting the drug “in his stomach[.]” Complaint ¶5. During 2012, McElroy “began
    experiencing serious and life threatening abdominal problems[,]” which caused his abdomen to
    balloon in weight to “approximately 200 pounds in and of itself.” 
    Id. McElroy also
    developed
    “staph and other infections and wounds which cause him to secrete bodily fluids and bleed
    profusely.” 
    Id. McElroy thereafter
    brought this lawsuit, asserting various claims under Tennessee law.
    The district court dismissed McElroy’s claims, holding that his complaint did not allege facts
    supporting a plausible inference that Byetta had caused his abdominal problems. On appeal,
    McElroy challenges only the dismissal of his products-liability claims.
    We review the district court’s decision de novo. Biegas v. Quickway Carriers, Inc.,
    
    573 F.3d 365
    , 377 (6th Cir. 2009). To 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, 
    556 U.S. 662
    , 678 (2009) (internal quotation marks omitted).
    To prevail on a products-liability claim under Tennessee law, a plaintiff must prove that a
    defective product proximately caused him to be injured. Pride v. BIC Corp., 
    218 F.3d 566
    , 580
    (6th Cir. 2000). We focus upon the causation element here.
    The issue before us, therefore, is whether McElroy has alleged facts that, if taken as true,
    support a plausible inference that Byetta more likely than not caused his abdominal problems.
    -2-
    No. 13-6185
    McElroy, et al. v. Amylin Pharm., Inc., et al
    See 
    Iqbal, 556 U.S. at 678
    . That issue is specific to McElroy’s complaint. And McElroy’s
    complaint has little to say in support of his assertion that Byetta caused his injuries. McElroy’s
    principal allegation is that, “[b]y process of elimination, he discovered that [Byetta] was the
    cause [of his injuries] in mid 2012.” Complaint ¶5. But McElroy nowhere explains in his
    complaint what his “process of elimination” was; and he affirmatively concedes that “[n]o
    physician has told him that there is a connection between the use of Byetta and his physical
    condition.” 
    Id. These allegations
    fall well short of supporting a plausible inference that Byetta
    caused McElroy’s injuries; indeed they suggest the contrary.
    McElroy also cites a 2008 FDA alert in which the agency cautioned physicians about a
    “suspected” association between Byetta and “acute pancreatitis[.]” But McElroy does not even
    allege that he has pancreatitis, instead alleging only that he has “possible pancreatitis.”
    Complaint ¶13. And the conditions that McElroy does allege that he has suffered—“excessive
    sores, staph infections,” and “pancreatic panniculitus and bleeding”—are simply different
    (notwithstanding that pancreatitis and panniculitus sound alike) from the condition mentioned in
    the FDA alert.
    Nor is the timeline alleged in the complaint of much help to McElroy. By his own
    account, McElroy’s problems developed six years after he began taking Byetta, and at least three
    years after he began injecting the drug into his stomach. Of course, there are plenty of diseases
    (e.g., lung cancer) that can be caused by sustained exposure to a substance. But as a general
    matter, the longer the time frame at issue, the greater the number of potential causes for a
    condition. And here, for the reasons discussed above, McElroy’s complaint provides no grounds
    to infer—and indeed affirmative grounds not to infer—that the sustained-exposure explanation
    for his injuries is the correct explanation. At best, therefore, McElroy’s complaint alleges facts
    -3-
    No. 13-6185
    McElroy, et al. v. Amylin Pharm., Inc., et al
    that are “merely consistent with” his claim of causation. 
    Iqbal, 556 U.S. at 678
    (internal
    quotation marks omitted).
    All that said, we recognize the difficulty faced by a plaintiff like McElroy, who is among
    the first to claim that a particular drug is defective. And we recognize that McElroy’s condition
    “evokes deep sympathy[.]” Mut. Pharm. Co., Inc. v. Bartlett, 
    133 S. Ct. 2466
    , 2480 (2013).
    The outcome of McElroy’s appeal, however, ultimately depends not on his condition, but on his
    complaint.   And the allegations in McEloy’s complaint “stop[] short of the line between
    possibility and plausibility of entitlement to relief.” 
    Iqbal, 556 U.S. at 678
    (internal quotation
    marks omitted).
    The district court’s judgment is affirmed.
    -4-
    

Document Info

Docket Number: 13-6185

Citation Numbers: 573 F. App'x 545

Judges: Moore, Kethledge, Tarnow

Filed Date: 8/5/2014

Precedential Status: Non-Precedential

Modified Date: 10/19/2024