LHC Group, Inc.v. Abbott Laboratories ( 2023 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN RE: PROTON PUMP INHIBITORS ) Master Case No.:
PRODUCTS LIABILITY LITIGATION ) C.A. No. N17C-07-001 PPI
)
)
This Opinion Relates to: )
)
LHC GROUP, INC., Administrator of )
the LHC Group Benefit Plan, on )
behalf of itself and as Subrogee, )
)
Plaintiff, ) C.A. No. N21C-11-228 PPI
)
v. )
)
ABBOTT LABORATORIES, et al, )
)
Defendants. )
Submitted: April 29, 20221
Decided: August 11, 2023
Upon Defendants AstraZeneca Pharmaceuticals LP, AstraZeneca LP and Merck Sharp &
Dohme Corporation’s Motion to Dismiss
DENIED
Upon Defendants Abbott and Takeda’s Motion to Dismiss
DENIED
Thomas G. Macauley, Esquire, Macauley LLC, Wilmington, DE, Martin Bienstock, Esquire,
Bienstock PLLC, Washington, D.C., Attorneys for Plaintiff LHC Group, Inc., Administrator of
the LHC Group Benefit Plan, on behalf of itself and as Subrogee.
James J. Freebery, Esquire, Daniel J. Brown, Esquire, Makenzie Windfelder, Esquire, Hayley J.
Reese, Esquire, Chelsea A. Botsch, Esquire, McCarter & English, LLP, Wilmington, Delaware,
Arthur E. Brown, Esquire, William Hoffman, Esquire, Matthew Douglas, Esquire, Arnold &
Porter Kaye Scholer LLP, New York, New York, Amy K. Fisher, Esquire, Katherine D. Althoff,
Esquire, Carolyn E. Riggs, Esquire, Ice Miller LLP, Indianapolis, Indiana, Attorneys for
Defendants AstraZeneca Pharmaceuticals LP, AstraZeneca LP, and Merck Sharp & Dohme
Corporation.
Philip A. Rovner, Esquire, Jonathan A. Choa, Esquire, Potter Anderson & Corroon LLP,
Wilmington, Delaware, Sherry Knutson, Esquire, Tucker Ellis LLP, Chicago, Illinois, Craig A.
1
D.I. No. 36. The Court last held a status conference on these matters on July 14, 2023. See In re Proton Pump
Inhibitors Products Liability Litigation, C.A. No. N17C-07-001 PPI (D.I. No. 336).
Thompson, Venable LLP, Baltimore, Maryland, Attorneys for the Defendants Abbott and
Takeda.
DAVIS, J.
I. INTRODUCTION
This is a personal injury action involving products liability claims. Plaintiff LHC Group,
Inc. (“LHC”)2 commenced this personal injury action against Defendants Abbott Laboratories,
AstraZeneca Pharmaceuticals LP, AstraZeneca PLC, AstraZeneca AB, Zeneca Inc., Astra US
Holding Corporation, Astra USA LLC, AstraZeneca LP,KBI Sub, Inc., GlaxoSmithKline
Consumer Healthcare Holdings (US) LLC, GlaxoSmithKline Consumer Healthcare LP,
GlaxoSmithKline Consumer Healthcare Holdings (US) IP LLC, Merck & Co. Inc. d/b/a Merck,
Sharp & Dohme Corporation, Novartis Corporation, Novartis Pharmaceutical Corporation,
Novartis Vaccines and Diagnostics, Inc., Novartis Institutes for Biomedical Research, Inc.,
Novartis Consumer Health, Inc., Pfizer, Inc., Takeda Pharmaceuticals USA, Inc., Takeda
Pharmaceuticals America, Inc., Takeda Pharmaceuticals LLC, Takeda Pharmaceuticals
International, Inc., Takeda California, Inc., Takeda Development Center Americas, Inc. f/k/a
Takeda Global Research & Development Center, Inc. Takeda Pharmaceutical Company Limited,
TAP Pharmaceutical Products, Inc. f/k/a TAP Holdings Inc., Wyeth Pharmaceuticals, Inc.,
Wyeth- Ayerst Laboratories and Wyeth LLC (collectively, “Defendants”)3 and their affiliates,
subsidiaries and/or joint venturers.
2
Amended Complaint ¶ 4 (“LHC Group brings this action as Administrator of the Plan, both directly and as
subrogee of the Injured Member’s claims against Defendants pursuant to Section 11.03 of the Plan.”) (D.I. No. 36).
3
For purposes of this decision: (i) the “Abbott and Takeda Defendants” shall mean Abbott Laboratories, Takeda
Pharmaceuticals USA, Inc., Takeda Pharmaceuticals America, Inc., Takeda Pharmaceuticals LLC, Takeda
Pharmaceuticals International, Inc., Takeda California, Inc., Takeda Development Center Americas, Inc. f/k/a
Takeda Global Research & Development Center, Inc. Takeda Pharmaceutical Company Limited, TAP
Pharmaceutical Products, Inc. f/k/a TAP Holdings Inc.; and (ii) “AstraZeneca and Merck Defendants” shall mean
AstraZeneca Pharmaceuticals LP, AstraZeneca PLC and Merk Sharp & Dohme Corporation (identified by LHC as
Merck & Co. Inc. d/b/a Merck, Sharp & Dohme Corporation).
2
In the Amended Complaint, LHC asserts eleven (11) claims against Defendants. LHC
alleges that Defendants’ PPI products were dangerous to human health, defectively designed,
lacked proper warning signs, and unfit and unsuitable to be marketed and sold in the United
States. LHC seeks compensatory and punitive damages, monetary restitution, disgorgement and
an accounting, and all other available remedies.
The AstraZeneca and Merck Defendants moved to dismiss the Amended Complaint
under Civil Rule 12(b)(1). The Abbot and Takeda Defendants also moved to dismiss the
Amended Complaint, relying on Civil Rules 9(b) and 12(b)(6). The AstraZeneca and Merck
Defendants assert that the Court lacks subject matter jurisdiction over LHC’s claims. In
addition, the Abbott and Takeda Defendants contend that LHC failed to sufficiently plead its
claims and have not provided Defendants with adequate notice. In sum, Defendants collectively
moved (the “Motions”)4 to dismiss all claims asserted by LHC.
For the reasons stated below, the Court DENIES the Motions.
II. RELEVANT FACTS
A. FACTUAL BACKGROUND
LHC is a Delaware corporation with its principal place of business in Louisiana.5 LHC is
the Administrator of the LHC Group Benefit Plan (the “Plan”).6 LHC has brought its claims as
“Administrator of the Plan, both directly and as subrogee of the Injured Member’s claims against
Defendants pursuant to Section 11.03 of the Plan.”7
LHC contends that Defendants are “responsible for designing, researching, developing,
testing, manufacturing, packaging, labeling, marketing, promoting, distributing, and/or selling
4
The Motions are described more in Section II.B and Section III.
5
Am. Compl. ¶ 4.
6
Id.
7
Id.
3
the PPI Products including, but not limited to Dexilant, Nexium, Nexium 24HR, Prevacid,
Prevacid 24HR, Prilosec, Prilosec OTC and Protonix.”8 LHC notes that PPI products are used to
“suppress the production of acid in order to reduce the risk of duodenal ulcer recurrence and
NSAID-associated gastric ulcers as well as to treat gastroesophageal reflux disease (‘GERD’)
and certain pathological hypersecretory conditions including Zollinger-Ellison syndrome.”9
LHC brings this action as a subrogee on behalf of its Plan members who allegedly
suffered and were diagnosed with “various forms of kidney injury, which were directly and
proximately caused by their regular and prolonged use of the PPI Products.”10 Some of these
kidney injuries and diseases “include, but are not limited to, Acute Interstitial Nephritis (‘AIN’),
Acute Kidney Injury (‘AKI’), Chronic Kidney Disease (‘CKD’) and End-Stage Renal Disease
‘ESRD’).”11
B. PROCEDURAL HISTORY
On April 29, 2022, LHC filed the Amended Complaint asserting eleven counts against
Defendants.12 LHC alleges eleven cause of actions; Count I – Strict Product Liability, Count II –
Strict Product Liability – Design Defect, Count III – Strict Product Liability – Failure to Warn,
Count IV – Negligence, Count V – Negligence Per Se, Count VI – Breach of Express Warranty,
Count VII – Breach of Implied Warranty, Count VIII – Negligent Misrepresentation, Count IX –
Fraud and Fraudulent Misrepresentation, Count X – Fraudulent Concealment, Count XI –
Violation of Consumer Protection Laws and Deceptive Trade Practices.13
8
Id. ¶ 1.
9
Am. Compl. ¶ 2.
10
Id. ¶ 5.
11
Id.
12
D.I. No. 36.
13
Am. Compl. ¶¶ 245-448.
4
As stated above, the AstraZeneca and Merck Defendants moved to dismiss the Amended
Complaint. On May 13, 2022, the Abbott and Takeda Defendants filed the Abbott and Takeda
Defendants’ Renewed Rule 9(b) and 12(b)(6) Motion to Dismiss for Failure to State a Claim (the
“Civil Rule 12(b)(6) Motion”).14 Pfizer, Inc., Wyeth Pharmaceuticals, Inc., Wyeth- Ayerst
Laboratories and Wyeth LLC filed a joinder to the Civil Rule 12(b)(6) Motion on May 17,
2022.15 The AstraZeneca and Merck Defendants submitted their Defendants AstraZeneca
Pharmaceuticals LP, AstraZeneca LP, and Merck Sharp & Dohme Corporation’s Joinder in the
Renewed Motion to Dismiss of the Abbott and Takeda Defendants on May 13, 2022.16 LHC
opposed the Civil Rule 12(b)(6) Motion, filing the Plaintiff’s Answering Brief to Motion to
Dismiss of Abbott and Takeda Defendants for Failure to State a Claim (the “Civil Rule 12(b)(6)
Response”) on June 13, 2022.17 On July 11, 2022, the Abbott and Takeda Defendants filed the
Reply Brief in Support of Abbott and Takeda Defendants’ Rule 9(b) and 12(b)(6) Motion to
Dismiss for Failure to State a Claim (the “Civil Rule 12(b)(6) Reply”).18
The AstraZeneca and Merck Defendants filed the Defendants AstraZeneca
Pharmaceuticals LP, AstraZeneca LP and Merck Sharp & Dohme Corporation’s Motion to
Dismiss Plaintiff’s Amended Complaint (the “Civil Rule 12(b)(1) Motion”) on May 13, 2022.19
On May 13, 2022, the Abbott and Takeda Defendants filed a joinder to the Civil Rule 12(b)(1)
Motion.20 GlaxoSmithKline Consumer Healthcare Holdings (US) LLC and Novartis Consumer
Health, Inc. (n/k/a GSK Consumer Health, Inc.) also joined the Civil Rule 12(b)(1) Motion on
14
D.I. No. 40.
15
D.I. No. 45.
16
D.I. No. 43.
17
D.I. No. 48.
18
D.I. No. 49.
19
D.I. No. 38.
20
D.I. No. 44.
5
May 13, 2022.21 Pfizer, Inc., Wyeth Pharmaceuticals, Inc., Wyeth- Ayerst Laboratories and
Wyeth LLC then joined the Civil Rule 12(b)(1) Motion on May 17, 2022.22 On June 13, 2022,
LHC filed its Plaintiff LHC Group, Inc.’s Answering Brief to Motion to Dismiss of Defendants
AstraZeneca Pharmaceuticals LP et al. (the “Civil Rule 12(b)(1) Response”).23 On July 11,
2022, the AstraZeneca and Merck Defendants filed the Defendants AstraZeneca Pharmaceuticals
LP, AstraZeneca LP and Merck Sharp & Dohme Corporation’s Reply Brief in Support of Their
Motion to Dismiss Plaintiff’s Amended Complaint for lack of Subject Matter Jurisdiction (the
Civil Rule 12(b)(1) Reply”).24
The Court conducted status conferences on the Motions and all related pleadings, with
the last conference happening on July 14, 2023. At the conclusion of the status conference, the
Court took the Motions under advisement. This is the Court’s decision on the Motions.
III. PARTIES’ CONTENTIONS
A. THE CIVIL RULE 12(b)(1) MOTION
1. Defendants
The AstraZeneca and Merck Defendants argue that the Court should dismiss the
Amended Complaint for lack of subject matter jurisdiction pursuant to Court Rule 12(b)(1).25
According to the AstraZeneca and Merck Defendants, the Supreme Court has made it clear that
“subrogation claims under ERISA must be brought in federal court.”26 Specifically, the
AstraZeneca and Merck Defendants assert that ERISA “shall supersede any and all State laws
insofar as they may now or hereafter relate to any employee benefit plan[.]”27 Moreover, the
21
D.I. No. 41.
22
D.I. No. 46.
23
D.I. No. 47.
24
D.I. No. 49.
25
Defendants’ 12(b)(1) Opening Brief to First Amended Complaint (“Defs.’ 12(b)(1) Opening Br.”) at 1-2 (D.I. 39).
26
Id. at 7.
27
Id.; (citing 29 U.S.C. § 1144(a) (“§ 514”)).
6
AstraZeneca and Merck Defendants contend that “[c]auses of action not preempted by [Section]
514 are otherwise preempted if they ‘fall [] “within the scope of”’ ERISA’s civil enforcement
provision in [Section] 502.”28 To the AstraZeneca and Merck Defendants, Section 514 preempts
all of LHC’s claims.29 AstraZeneca and Merck contend that, at best, this action belongs in
federal court.30
Additionally, the AstraZeneca and Merck Defendants contend this case belongs in
“federal court pursuant to [Section] 502(a)(3).”31 AstraZeneca and Merck maintain that “to the
extent [LHC] seeks reimbursement for benefits paid under the Plan, that claim should be in the
form of a constructive trust or equitable lien and does not belong in this Court.”32 In the
alternative, AstraZeneca and Merck assert that, if this action is not preempted, the Court still
lacks subject matter jurisdiction because the action belongs in the Court of Chancery.33
Last, AstraZeneca and Merck argue that dismissal should be prejudice.34 AstraZeneca
and Merck make this request because “Plaintiff already voluntarily dismissed an identical action,
Plaintiff’s Amended Complaint should be dismissed with prejudice.”35
2. LHC
LHC insists that its claims are not preempted as the claims do not fall within the civil
enforcement provisions of Section 502.36 LHC notes that application of the Third Circuit’s two-
28
Defs.’ 12(b)(1) Opening Br. at 8; Asbestos Workers Local Union No. 42 Welfare Fund v. Brewster, 940 A.2d 935,
941 (Del. 2007).
29
Defs.’ 12(b)(1) Opening Br. at 9.
30
Id.31
Id.32
Id.33
Id.34
Defs.’ 12(b)(1) Opening Br. at 9.
35
Id. at 10.
36
Plaintiffs’ Answering Brief in Opposition to Defendants’ 12(b)(1) Motion (“Pls.’ 12(b)(1) Answering Br.”) at 5
(D.I. 48).
7
part test for preemption demonstrates that LHC’s claims are not preempted by ERISA.37 LHC
maintains it “could not have brought this claim under ERISA [Section] 502(a) because the claims
are for tort damages” and because “the claims depend upon tort law, which is an independent
duty which supports LHC’s claim.”38 Next, LHC argues that the Supreme Court’s decision in
“[Asbestos Workers Local Union No. 42 Welfare Fund v.] Brewster39 involved a dispute between
an ERISA plan trustee and one of its members concerning the disposition of settlement funds
that already had been paid to the member.”40 LHC notes that this case does not involve a dispute
between a plan and its members41 and, therefore, Brewster is not controlling.42
LHC also maintains that its claims are not subject to conflict preemption.43 Applying the
Third Circuit test for “relate to” used in Section 514, LHC argues that “the tort laws relied on in
the Amended Complaint are product liability claims of general applicability” and “the tort laws
do not relate at all to plan administration or issues of uniformity, nor do they force a plan to
adopt a scheme or restrict its choices.”44 Therefore, LHC asserts that its claims are not
preempted.45
Last, LHC contends that jurisdiction lies properly in this Court.46 LHC notes that the
claims in this case seek to hold the defendants liable for damages in tort.47 As such, LHC’s
claims properly lie in a court of general jurisdiction rather than equity.
37
Id.
38
Id.
39
940 A.2d 935, 941 (Del. 2007)
40
Pls.’ 12(b)(1) Answering Br at 7.
41
Id. at 8.
42
Id.
43
Id.
44
Pls.’ 12(b)(1) Answering Br at 9.
45
Id.
46
Id. at 10.
47
Id.
8
B. THE CIVIL RULE 12(b) (6) MOTION
1. Defendants
The Abbott and Takeda Defendants argue that the Court should dismiss the Amended
Complaint for failure to “provide proper notice of Plaintiff’s claims to the Abbott and Takeda
Defendants” and “to meet the requirements of Rule 9(b).”48 Specifically, the Abbott and Takeda
Defendants provide that it cannot be:
fairly inferred that the allegations against all ‘Defendants’ and anonymous listing
of members’ claims by type of PPI (but not specific brand-name or over-the-counter
PPI) gives notice to the Abbott and Takeda Defendants of the claims against them,
because different manufacturers are linked to different PPIs at different points of
time, with no suggestion that any particular manufacturer had exclusive
manufacturing or distribution rights.49
The Abbott and Takeda Defendants note that LHC’s Exhibit A redacted substantial amounts of
essential information and did not comply with Civil Rule 15(aa).50
The Abbott and Takeda Defendants contend that the “sporadic and incomplete
information provided about the members’ individual circumstances” precludes fair notice.51 The
Abbott and Takeda Defendants contend that the Court’s decision in Hupan v. Alliance One
International, Inc.52 is instructive here.53 The Abbott and Takeda Defendants refer that that part
in Hupan which provides that “[i]f Plaintiff believes that a Defendant’s product caused a Plan
member’s injuries, then its claims must give fair notice to that entity of its alleged wrongdoing
(product design, warnings, etc.) and factual allegations linking that entity’s product (and not a
48
Defendants’ 12(b)(6) Opening Brief to First Amended Complaint (“Defs.’ 12(b)(6) Opening Br.”) at 11 (D.I. No.
40)
49
Defs.’ 12(b)(6) Opening Br. at 11.
50
Defendants’ 12(b)(6) Reply Brief to First Amended Complaint (“Defs. 12(b)(6) Reply Br.”) at 2-3 (“Plaintiff also
did not provide a blackline copy of Exhibit A, as required by Superior Court Rule 15(aa), despite requests for it by
Defense Counsel.”) (D.I. 50).
51
Defs.’ 12(b)(6) Opening Br. at 12.
52
2015 WL 7776659 (Del. Super. Sept. 13, 2016).
53
Id. at 13.
9
competitor’s) to the alleged harm.”54 The Abbott and Takeda Defendants argue that the
Amended Complaint does not provide fair notice of the defective product and factual allegations
that link that product to the alleged harm.55
Additionally, the Abbott and Takeda Defendants argue that the Amended Complaint
improperly joins the distinct individual claims of dozens of Plan members.56 The Abbott and
Takeda Defendants claim that under the common issues/same transactions joinder requirements
of Rule 20 or Rule 23 “LHC has failed to allege facts sufficient to demonstrate that it can satisfy
either of these procedural routes for joining multiple parties’ claims.”57 In addition, the Abbott
and Takeda Defendants maintain that, in violation of Delaware law, “LHC, as subrogee, is
attempting to exercise greater rights than its subrogor members and to circumvent the
requirements of either Rule 20 or 23 to consolidate their individual claims.”58
Last, the Abbott and Takeda Defendants argue that the Court should dismiss the
Amended Complaint without prejudice. The Abbott and Takeda Defendants rely on Civil Rule
41, arguing that, because “Plaintiff already voluntarily dismissed an identical action (see Trans.
ID. No. 6712559),” the Court must dismiss the Amended Complaint with prejudice.59
2. LHC
LHC disagrees with the Abbott and Takeda Defendants’ arguments. LHC insists that the
information in Exhibit A is sufficient to state a claim under Rule 12(b)(6) and 9(b).60 LHC
argues that Exhibit A is adequate because it “identifies the injured party, by name, social security
54
Defs.’ 12(b)(6) Opening Br. at 13-14.
55
Id. at 12.
56
Id. at 14.
57
Id. at 14-15.
58
Defs.’ 12(b)(6) Opening Br.at 15.
59
Id. at 16.
60
Plaintiffs’ Answering Brief in Opposition to Defendants’ 12(b)(6) Motion (“Pls.’ 12(b)(6) Answering Br.”) at 5
(D.I. 47).
10
number, and birth date; specifics of the nature of the injury by specific diagnosis code; assigns a
location to the transaction in which the drug was prescribed; and identifies the defective product
by specific NCD number.”61 LHC claims that this “extensive information” provides far more
than what the Abbott and Takeda Defendants argue is required.62
Next, LHC contends that its claims are properly joined in one action.63 LHC argues that
Civil Rule 18(a) allows LHC “to submit its subrogated claims in a single action.”64
LHC finally argues the if the Court dismisses the Amended Complaint, dismissal should
occur without prejudice.65 LHC insist that the Abbott and Takeda Defendants misstate Civil
Rule 41.66 LHC notes that Civil Rule 41(a) applies to voluntary dismissals;67 however, “[a]ny
dismissal on the Motion would not be a voluntary dismissal, but rather an involuntary one.”68
LHC concludes “[i]f the wealth of information in Exhibit A is somehow insufficient or the
joinder of claims under Rule 18 somehow mistaken, the Court should grant LHC leave to file a
further amended complaint to cure any deficiency.”69
IV. STANDARD OF REVIEW
A. CIVIL RULE 12(b)(1)
“Under Superior Court Civil Rule 12(b)(1), a party may move to dismiss under Rule
12(b)(1) for lack of subject matter jurisdiction.70 “‘Whenever it appears by suggestion of the
parties or otherwise’ that the Court lacks subject matter jurisdiction, the Court must dismiss the
61
Pls.’ 12(b)(6) Answering Br. at 6.
62
Id.63
Pls.’ 12(b)(6) Answering Br. at 7.
64
Id.65
Id.66
Id.67
Pls.’ 12(b)(6) Answering Br. at 8.
68
Id.69
Pls.’ 12(b)(6) Answering Br. at 8-9.
70
Super. Ct. Civ. R. 12(b)(1).
11
claim.”71 In considering a Civil Rule 12(b)(1) motion, the Court “need not accept [the
plaintiff’s] factual allegations as true and is free to consider facts not alleged in the complaint.”72
Accordingly, whereas the movant “need only show that the Court lacks jurisdiction,”73 the non-
movant bears the “far more demanding” burden “to prove jurisdiction exists.”74
B. Civil Rule 12(b)(6) and 9(b)
Upon a motion to dismiss under Civil Rule 12(b)(6), the Court (i) accepts all well-
pleaded factual allegations as true, (ii) accepts even vague allegations as well-pleaded if they
give the opposing party notice of the claim, (iii) draws all reasonable inferences in favor of the
non-moving party, and (iv) only dismisses a case where the plaintiff would not be entitled to
recover under any reasonably conceivable set of circumstances.75 However, the Court must
“ignore conclusory allegations that lack specific supporting factual allegations.”76
Under Civil Rule 9(b), a party must plead fraud and negligence with particularity.77 “The
purpose of [Rule 9(b)] is to apprise the adversary of the acts or omissions by which it is alleged
that a duty has been violated.”78 To plead fraud or negligence with the particularity required by
71
KT4 P’rs LLC v. Palantir Techs. Inc., 2021 WL 2823567, at *24 (Del. Super. June 24, 2021) (alteration and
emphasis omitted) (quoting Super. Ct. Civ. R. 12(h)(3)).
72
Appriva S’holder Litig. Co., LLC v. EV3, Inc., 937 A.2d 1275, 1284 n.14 (Del. 2007) (internal quotation marks
omitted); see Nelson v. Russo, 844 A.2d 301, 302 (Del. 2004) (“In deciding whether the Superior Court has subject
matter jurisdiction, we must look beyond the language in the complaint . . . .”); see also Texcel v. Com. Fiberglass,
1987 WL 19717, at *2 (Del. Super. Nov. 3, 1987) (“The gravamen of subject matter jurisdiction . . . lies not in the
pleading but in the existence of facts necessary for the court to exercise its jurisdiction.”).
73
Airbase Carpet Mart, Inc. v. AYA Assocs., Inc., 2015 WL 9302894, at *2 (Del. Super. Dec. 15, 2015), aff’d 2016
WL 4938890 (Del. Sept. 16, 2016).
74
Appriva, 937 A.2d at 1284 n.14 (internal quotation marks omitted).
75
See Central Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 227 A.3d 531, 536 (Del. 2011); Doe v.
Cedars Academy, No. 09C-09-136, 2010 WL 5825343, at *3 (Del. Super. Oct. 27, 2010).
76
Ramunno v. Crawley, 705 A.2d 1029, 1034 (Del. 1998).
77
Super. Ct. Civ. R. 9(b).
78
Mancino v. Webb, 274 A.2d 711, 713 (Del. Super. 1971).
12
Rule 9(b), a party must include the “time, place, contents of the alleged fraud or negligence, as
well as the individual accused of committing the fraud” or negligence.79
V. DISCUSSION
A. THE COURT HAS SUBJECT MATTER JURISDICTION.
1. Evaluation under ERISA
LHC has brought this action as Administrator of the Plan.80 LHC is an administrator,
which, under ERISA, is a “person specifically so designated by the terms of the instrument under
which the plan is operated.”81 Under Section 502(a)(3), subrogation claims can be enforced “by
way of constructive trust or equitable lien.”82 LHC maintains that it “seeks to hold
pharmaceutical manufacturers liable for the damages they caused.”83 LHC states that it does not
seek equitable relief.84
The Plan gives express subrogation rights. The language of Plan Section 11.03(a), in
relevant part, provides:
As a condition to participation in or the receipt of benefits under the Plan, each
Covered Person agrees that the Plan will have the right of subrogation with respect
to the full amount of benefits paid to or on behalf of a Covered Person as the result
of an injury, illness, disability or death that is or may be the responsibility of any
Third Party. The Plan will also have a lien upon any recovery from such Third Party
to the full amount of benefits paid and may, at its option, file suit or intervene in
any pending lawsuit to secure and protect its rights. The Plan’s right of subrogation
will apply to the first dollar of any recovery obtained from the Third Party, even if
the recovery obtained is less than the amount needed to make the Covered Person
whole. Regardless of how such claims or recoveries are classified or characterized
by the parties, the courts or any other entity, such classification shall not impact the
79
See TrueBlue, Inc., v. Leeds Equity Partners IV, LP, C.A. No. N14C-12-112 WCC CCLD, 2015 WL 5968726, at
*6 (Del. Super. Sept. 25, 2015) (quoting Universal Capital Mgmt., Inc. v. Micco World, Inc., C.A. No. N10C-07-039-
RRC, 2012 WL 1413598, at *2 (Del. Super. Feb. 1, 2012)).
80
Am. Compl. ¶ 4.
81
29 U.S.C.A. § 1002 (16)(A)(i) (West).
82
Asbestos Workers Loc. Union No. 42 Welfare Fund v. Brewster, 940 A.2d 935, 944 (Del. 2007).
83
Pls.’ 12(b)(1) Answering Brief at 8.
84
Id. (“LHC’s claims in this case seek to hold the defendants liable for damages in tort.”).
13
covered individual's responsibilities described above or the Plan's entitlement to
first-dollar recovery, regardless of whether the covered individual is made whole.85
“The purpose of ERISA is to provide a uniform regulatory regime over employee benefit
plans.”86 The United States Supreme Court has held “[a]ny state-law cause of action that
duplicates, supplements, or supplants ERISA’s civil enforcement remedy conflicts with clear
congressional intent to make that remedy exclusive, and is therefore pre-empted.”87 There is a
strong preference for preemption under Section 502 (a).88
The United States Supreme Court has established a two-part test for claims not
preempted by Section 514. The United States Supreme Court in Aetna Health Inc. v. Davila held
that “a claim is completely preempted, and thus removable, under ERISA § 502(a) only if: (1)
the plaintiff could have brought the claim under § 502(a); and (2) no other independent legal
duty supports the plaintiff's claim.”89 “[I]f an individual, at some point in time, could have
brought his claim under ERISA § 502(a)(1)(B), and where there is no other independent legal
duty that is implicated by a defendant's actions, then the individual's cause of action is
completely pre-empted by ERISA § 502(a)(1)(B).”90
2. The Circuit Courts Provide Persuasive Support for LHC.
The Third and Ninth Circuit Courts have held under the second prong “that a legal duty is
‘independent’ if it is not based on an obligation under an ERISA plan, or if it ‘would exist
whether or not an ERISA plan existed.’”91 Specifically, the Third Circuit held that “if the state
85
Ex. B., § 11.03(a).
86
Aetna Health Inc. v. Davila, 542 U.S. 200, 208 (2004).
87
Davila, 542 U.S. at 200-01.
88
Id. (“ERISA § 502(a)'s pre-emptive force is still stronger.”).
89
Aetna Health Inc. v. Davila, 542 U.S. 200, 200-01 (2004).
90
Davila, 542 U.S. at 210 (emphasis added).
91
New Jersey Carpenters & the Trustees Thereof v. Tishman Const. Corp. of New Jersey, 760 F.3d 297, 303 (3d Cir.
2014) (“Tishman”) (citing Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941, 950 (9th Cir.
2009)).
14
law claim is not ‘derived from, or conditioned upon’ the terms of an ERISA plan, and ‘[n]obody
needs to interpret the plan to determine whether that duty exists,’ then the duty is independent.”92
“Because the test is conjunctive, a state-law cause of action is completely preempted only if both
of its prongs are satisfied.”93 And if it is “conclude[d] that the defendant cannot meet the second
prong of the test, [the court] need not decide whether it could have met the first prong.”94
The AstraZeneca and Merck Defendants argue that LHC’s subrogation claims are
completely preempted because “they fall within the civil enforcement provisions of ERISA
[Section] 502(a) pursuant to the U.S. Supreme Court’s two-pronged test set forth in Aetna Health
Inc. v. Davila.”95 The AstraZeneca and Merck Defendants claim that the second prong is
satisfied because “the subrogation claims could not exist in the absence of the Benefits Plan and
require interpretation of the Benefits Plan to determine the scope of LHC’s subrogation rights.”96
The AstraZeneca and Merck Defendants also contend that the decision in LHC Group, Inc. v.
Bayer Corp.97 cited by LHC is not controlling on this Court and is inapposite.98
LHC counters, noting that because the claims at issue are tort claims brought by an
ERISA Health Plan “while standing in the shoes of its members as subrogee,” neither prong is
satisfied.99 Consequently, LHC insists that the Amended Complaint’s claims do not fall within
92
Id. (citing Gardner v. Heartland Indus. Partners, LP, 715 F.3d 609, 614 (6th Cir. 2013); accord Stevenson v.
Bank of N.Y. Co., Inc., 609 F.3d 56, 62 (2d Cir. 2010)).
93
Tishman, 760 F.3d at 303.
94
Tishman, 760 F.3d at 305 n.3.
95
Defendants’ 12(b)(1) Reply Brief to First Amended Complaint (“Defs. 12(b)(1) Reply Br.”) at 2 (D.I. 49).
96
Defs.’ 12(b)(1) Reply Br. at 2-3.
97
2022 WL 774298 (N.D. Cal. Mar. 14, 2022) (“Bayer”).
98
Defs.’ 12(b)(1) Reply Br. at 13. While the AstraZeneca and Merck Defendants argue that there is a difference
between Bayer and Tishman that precludes LHC from using the Ninth Circuit opinion as persuasive, this Court finds
that there is no conflict between the two holdings. Defendants hold that Bayer is inapposite because “the federal
court analyzed complete preemption under ERISA §502(a)(1)(B) and was bound by Ninth Circuit law.” (Defs.’
12(b)(1) Reply Br. at 14). And because Bayer analyzed complete preemption under §502(a)(1)(B) and not
§502(a)(3) it is inapposite. (Defs.’ 12(b)(1) Reply Br. at 14) (emphasis added). Brewster analyzes complete
preemption under §502(a)(3). Tishman analyzes complete preemption under §502(a). The law does not make the
desired distinction between §502(a) sections of the ERISA that Defendants wish.
99
Pls.’ 12(b)(1) Answering Br. at 5.
15
the civil enforcement provisions of Section 502.100
In LHC Group, Inc. v. Bayer Corp., the U.S. District Court for the Northern District of
California held that plaintiff’s claims satisfied neither the first nor second prong of the Davila
test. The LHC Group, Inc. court found that the “claims [we]re not brought under Section
502(a)(1)(B) to seek benefits; instead, they are purely state-law tort claims assigned to it to
enforce on behalf of its plan members.”101 Accordingly, the LHC Group, Inc. court found that
state law tort claims were independently imposed duties, and therefore, did not satisfy Davila.102
In New Jersey Carpenters v. Tishman, the Third Circuit determined whether the New
Jersey Prevailing Wage Act (“PWA”) was completely preempted by ERISA.103 The Tishman
court found that even if the language of the PWA overlapped with Section 502(a)(1)(B) or
Section 502(a)(3) of ERISA, it still failed the second prong.104 The Third Circuit found that the
PWA established an independent legal duty and that the wages would still have to be paid
regardless of ERISA.105
Here, these obligations are not based upon an ERISA plan.106 Applying the second prong
of Davila, the Court finds that LHC asserts purely state-law tort claims. LHC brings eleven
counts—all duties independent of an ERISA plan.107 It is state tort law that imposes a duty on
the AstraZeneca and Merck Defendants. The AstraZeneca and Merck Defendants do not point to
100
Id.
101
LHC Grp., Inc. v. Bayer Corp., 2022 WL 774298, at *2 (N.D. Cal. Mar. 14, 2022).
102
Id.103
New Jersey Carpenters & the Trustees Thereof v. Tishman Const. Corp. of New Jersey, 760 F.3d 297, 300 (3d
Cir. 2014).
104
Id.105
Tishman, 760 F.3d at 304 (“No reference to any ERISA plan is necessary. The statute simply requires that the
Commissioner set a prevailing wage, and that employers engaged in public works projects pay it.”).
106
Marin Ge. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941, 950 (9th Cir. 2009). (“The question under the
second prong of Davila is whether the complaint relies on a legal duty that arises independently of ERISA.”).
107
LHC Grp., Inc. v. Bayer Corp., 2022 WL 774298, at *3 (N.D. Cal. Mar. 14, 2022) (Finding plaintiff's claims of
negligence, strict products liability, concealment, intentional misrepresentation, negligent misrepresentation, breach
of express warranty, quasi-contract and unjust enrichment are based on duties independent of the ERISA plan.).
16
any language that LHC’s claims regarding the failure of AstraZeneca and Merck Defendants to
design, research, develop, test, manufacture, package, label, market, promote, distribute and/or
sell PPI products relate to the Plan or ERISA.108 Looking to what LHC must prove to prevail,
there is “[n]o reference to any ERISA plan that is necessary.”109
Because LHC’s claims do not implicate the second prong, this Court does not have to
decide whether the first prong applies.110
3. The Delaware Supreme Court’s Decision in Brewster
The AstraZeneca and Merck Defendants argue that the Supreme Court, in Asbestos
Workers Local Union No. 42 Welfare Fund v. Brewster,111 has made it clear that subrogation
claims under ERISA are preempted.112 The AstraZeneca and Merck Defendants contend that
Brewster is the controlling law on LHC’s claims.
LHC disagrees, noting that Brewster “involved a dispute between an ERISA plan trustee
and one of its members concerning the disposition of settlement funds that already had been paid
to the member.”113 LHC provides that this case concerns an action that does not involve a
dispute between a plan and its members.114 As such, LHC maintains that the Amended
Complaint’s claims are not subject to complete preemption.
In Brewster, the Supreme Court held that the state law claim was preempted by Section
108
Davila, 542 U.S. at 201 (Finding that respondents claims do not rise independently of ERISA or the plans terms
because “[i]f a managed care entity correctly concluded that, under the relevant plan's terms, a particular treatment
was not covered, the plan's failure to cover the requested treatment would be the proximate cause of any injury
arising from the denial.”).
109
Tishman, 760 F.3d at 304 (finding that no interpretation or reference to any ERISA plan is necessary in order for
plaintiff to prevail).
110
Tishman, 760 F.3d at 305 n.3 (3d Cir. 2014) (“Because we conclude that the defendant cannot meet the second
prong of the test, we need not decide whether it could have met the first prong.”).
111
940 A.2d 935, 940-45 (Del. 2007) (“Brewster”).
112
Defs.’ 12(b)(1) Opening. Br. at 7.
113
Pls.’ 12(b)(1) Answering Br.at 7.
114
Pls.’ 12(b)(1) Answering Br.at 8.
17
514 because the claim “relate[d] to” the benefit plan.115 Because the plan was established under
ERISA, the Court found that the claim related directly to Section 502(a)(3).116 The Supreme
Court stated that merely because a claim could “be duplicated or supplemented by a state law
claim to enforce the same subrogation right [that] does not deprive a federal court of its exclusive
jurisdiction under ERISA.”117
The Court finds that Brewster is distinguishable from this case. The claim in Brewster
involved the repayment by plaintiffs to a welfare fund.118 Brewster’s claim “relate[d] to” Section
502(a)(3) because the welfare plan expressly covered plaintiff as an injured dependent that
sought to have her medical expenses paid.119 This case involves a personal injury action against
over 20 pharmaceutical companies for their failure to provide safe PPI products.120 The tort law
claims involved are not identical to a claim under ERISA or the Plan.
Most notably, the Supreme Court, in Brewster, held that “ERISA has preempted the
jurisdiction of the Delaware courts over the Fund’s equitable claim to the settlement
proceeds.”121 Here, LHC’s claims “seek to hold defendants liable for damages in tort” not in
equity.122
This case is like LHC Group, Inc. v. Bayer Corp.123 and New Jersey Carpenters v.
Tishman124 where there was an independently imposed duty, and the claims were not equitable
115
Brewster, 940 A.2d at 937.
116
Id. at 936.
117
Id. at 943; see Aetna Health Inc. v. Davila, 542 U.S. 200, 209 (2004).
118
Brewster, 940 A.2d at 936.
119
Brewster, 940 A.2d at 936.
120
Am. Compl. at 1.
121
Brewster, 940 A.2d at 943 (emphasis added).
122
Pls.’ 12(b)(1) Answering Br. at 10.
123
LHC Grp., Inc. v. Bayer Corp., 2022 WL 774298, at *2 (N.D. Cal. Mar. 14, 2022) (Noting that even though
defendants argued that plaintiffs claims could not exist without the ERISA plan, the court found that the claims were
purely state-law tort claims assigned to plaintiffs to enforce on behalf of its plan members.).
124
Tishman, 760 F.3d 297, 301-04 (3d Cir. 2014) (Noting that even though defendants argued that the plaintiffs'
cause of action was actually one to collect benefits due, the court found that plaintiffs’ cause of action was a state
action to recover unpaid wages.).
18
ones. Here, the Amended Complaint’s claims are not derived from nor are dependent upon
ERISA or upon the language of the Plan. Moreover, because LHC seeks damages in tort and not
equity, the Amended Complaint does not implicate the second prong of the Davila test and is
distinguishable from Brewster. As set forth above, the Court has subject matter jurisdiction.125
Accordingly, Defendants’ Motion to Dismiss under Rule 12(b)(1) should be DENIED.
B. THE COURT WILL NOT DISMISS THE AMENDED COMPLAINT UNDER CIVIL RULES
12(b)(6) AND 9(b)
The Abbott and Takeda Defendants argue LHC has failed to state a claims under Civil
Rule 12(b)(1) and meet the heightened pleading standards of Civil Rule 9(b) and provide notice
to the Abbot and Takeda Defendants.126 LHC contends that the Amended Complaint and its
Exhibit A adequately states a claim and puts the Abbott and Takeda Defendants on notice and
that the Amended Complaint contains details sufficient to meet the Civil Rule 9(b)
requirements.127
Delaware courts have consistently upheld the importance of measuring the sufficiency of
pleadings on a case-by-case basis because of the fluid nature of pleading requirements.128 This
case-by-case analysis occurs “[b]y necessity” because the “analysis [] will differ depending upon
the nature of the claim and the factual context in which it is made.”129
125
The AstraZeneca and Merck Defendants argue, without citation, that even if these claims are not preempted, then
the Delaware Court of Chancery has exclusive jurisdiction. (Defs.’ 12(b)(1) Opening Br. at 9). Again, because
LHC’s claims lie in tort and solely seek monetary damages, jurisdiction in Chancery is improper. There is already an
adequate remedy at law for LHC in the form of monetary damages. Mock v. Div. of State Police, Dep't of Safety &
Homeland Sec., 2022 WL 1744439, at *9 (Del. Ch. May 31, 2022) (“The Court of Chancery's jurisdiction excludes
writs and any claim for which there is an adequate remedy at law . . . .”); 10 Del. C. § 342 (This Court lacks subject
matter jurisdiction where a “sufficient remedy may be had by common law, or statute, before any other court or
jurisdiction of this State.”).
126
Defs.’ 12(b)(6) Opening Br. at 11.
127
Pls.’ 12(b)(6) Answering Br. at 6.
128
In re Benzene Litig., 2007 WL 625054, at *6 (Del. Super. Ct. Feb. 26, 2007) (“[T]he general pleading standards
set forth above are, by their nature, fluid. Delaware courts consistently have recognized that the sufficiency of a
pleading under Rules 8 and 9(b) must be measured according to the particular circumstances of the case.”); see Stuchen
v. Duty Free Int'l, Inc., 1996 WL 33167249 at *5 (Del. Super. Ct. Apr. 22, 1996).
129
In re Benzene Litig., 2007 WL 625054, at *6.
19
This case is a products liability case.130 In applying the standards for products liability
actions under Civil Rule 9(b), the courts have found that it is “incumbent upon the plaintiff to
plead ‘the nature of the defect, the specific cause of the defect, the duty owed by [the] defendant
to [the plaintiff], the breach of the duty by defendant and the damages resulting from the
breach.’”131
Adopting those standards, the Delaware Superior Court in In re Benzene Litigation,
denied defendants’ motion to dismiss for a Civil Rule 9(b) cause of action finding that plaintiffs
had identified the premise at issue and the factual bases for which the liability claims rested.132
The Court classified the mass tort litigation as a products liability case, regardless if the action
was based on negligence, strict liability, or breach of warranty of fitness.133
In Knauer v. Glaxosmithkline, LLC, the Court found plaintiff’s products liability action
sufficiently alleged the injury.134 The Court, under the reasoning of In re Benzene Litigation,
held that despite the fact that the allegations regarding the specific injury were “arguably vague”
it still sufficiently alleged the injury.135 The Court held that at the early stages of pleading, a
plaintiff adequately satisfies the pleading standards even if the plaintiff fails to allege a specific
diagnosis or ailment to satisfy the pleading standards.136
130
Because the Abbott and Takeda Defendants do not argue specifically which claims of Plaintiffs have failed to
establish a well-pled complaint, this Court will evaluate the Motion on the products liability counts. LHC brings a
personal injury action based on several counts, three of which are under strict product liability, while also pleading
negligence, breach of express warranty and fraud. Am. Compl. ¶¶ 245-448 (Count I – Strict Product Liability, Count
II – Strict Product Liability – Design Defect, Count III – Strict Product Liability – Failure to Warn, Count IV –
Negligence, Count V – Negligence Per Se, Count VI – Breach of Express Warranty, Count VII – Breach of Implied
Warranty, Count VIII – Negligent Misrepresentation, Count IX – Fraud and Fraudulent Misrepresentation, Count X
– Fraudulent Concealment, Count XI – Violation of Consumer Protection Laws and Deceptive Trade Practices).
131
In re Benzene Litig., 2007 WL 625054, at *6 (Del. Super. Ct. Feb. 26, 2007) (quoting Rinaldi v. Iomega Corp.,
1999 WL 1442014, at *9 (Del. Super. Ct. Sept. 3, 1999).
132
Id. at *14 (Determining the claim complies with Superior Court Civil Rule 9(b) because “it sufficiently identifies
the premises at issue and further identifies factual bases upon which claims of premises liability can rest.”).
133
Id. at *6 (Del. Super. Ct. Feb. 26, 2007) (quoting 63 Am. Jur. 2d, Products Liability, § 5).
134
Knauer v. Glaxosmithkline, LLC, 2022 WL 18359403 at *3 (Del. Super. Ct. Dec. 29, 2022).
135
Id.136
Id.20
Here, LHC has properly identified the products that caused the alleged harm.137
Specifically, LHC names “the PPI Products including, but not limited to Dexilant, Nexium,
Nexium 24HR, Prevacid, Prevacid 24HR, Prilosec, Prilosec OTC and Protonix.”138 LHC alleges
that the label and warnings were “far from adequate” because they did not contain any risk of
warning about, among other kidney injuries, Acute Interstitial Nephritis (“AIN”).139
The Abbott and Takeda Defendants argue that Exhibit A does not sufficiently them on
notice.140 The Abbott and Takeda Defendants contend they have not been adequately put on
notice because the exhibit does not contain allegations concerning residence, medical history,
treatment details and timeline, injury circumstances, reliance on warnings, or choice of law
provision.141
The Court finds Exhibit A adequately identifies the defective product because it identifies
“the injured party, by name, social security number, and birth date; specifies the nature of the
injury by specific diagnosis code; assigns a location to the transaction in which the drug was
prescribed; and identifies the defective product by specific NCD number.”142 Time and place is
provided.143 While the lack of specific information requested by the Abbott and Takeda
137
Am. Compl. ¶ 278 (LHC has pled the PPI products were “defective in design or formulation in that they were not
merchantable, reasonably suitable and/or safe for their intended and foreseeable use, and their condition when sold
was the proximate cause and/or a substantial factor of the injuries sustained by Injured Members.”).
138
Id. ¶ 1.
139
Id. ¶ 171-72 (“To this date, Defendants’ over-the-counter PPI Products do not include a warning of any risk
information about AIN. The current warning contained on prescription PPI products regarding the risk of AIN is far
from adequate, lacking the necessary force and specificity to give patients and their healthcare providers the proper
information needed to make an informed decision about to start or continue a drug regimen with the potential for such
dire consequences. If left untreated, AIN can lead to Chronic Kidney Disease, Renal Failure, Dialysis, Kidney
Transplant and/or death.”).
140
Defs.’ 12(b)(6) Opening Br at 12.
141
Id.142
Pls.’ 12(b)(6) Answering Br. at 6.
143
The AstraZeneca and Merck Defendants seek to distinguish this case from White v. APP Pharms., LLC, 2011 WL
2176151 (Del. Super. Apr. 7, 2011) arguing that in White each defendant has some reasonable basis upon which it
could begin to mount its defense. (Defs.’ 12(b)(6) Opening Br at 12 n.9). According to the AstraZeneca and Merck
Defendants, there is no reasonable basis upon which it could begin to mount its defense. Not so. LHC has sufficiently
pled the injury to have adequately put the AstraZeneca and Merck Defendants on notice. Exhibit A contains gender,
state, date first prescribed, date of adverse event, and the PPI product by name.
21
Defendants may not have been provided, at this stage of the pleading, Exhibit A and the
Amended Complaint’s other allegations are enough to put the Abbott and Takeda Defendants on
notice.144
Under the reasoning in In re Benzene and Knauer, LHC has adequately pled that the PPI
products were defective and sufficiently put Defendants on notice of its claims. And “Delaware
has a strong public policy favoring resolution of cases on their merits.”145 Here, LHC has
adequately pled its claims in the Amended Complaint.
C. LHC HAS PROPERLY JOINED THE DEFENDANTS UNDER RULE 18.
The Abbott and Takeda Defendants argue that LHC’s Amended Complaint improperly
joins the distinct claims of dozens on Plan members.146 The Abbott and Takeda Defendants
assert that, under Civil Rules 20 or 23, LHC has failed to satisfy either of the “procedural routes”
for joining multiple parties’ claims.147 The Court does not find that Civil Rule 23 applies as this
is not appear to be a class action.
The applicable Civil Rule would be Civil Rules 18(a) and/or Rule 20.148 Civil Rule 18(a)
states:
A party asserting a claim to relief as an original claim, counterclaim, cross-claim,
or third-party claim, may join, either as independent or as alternate claims, as many
claims as the party has against an opposing party.149
Civil Rule 20 provides that:
All persons may join in one action as plaintiffs if they assert any right to relief
jointly, severally, or in the alternative in respect of or arising out of the same
144
See Knauer, 2022 WL 18359403, at *3 (finding that even though allegations of the specific nature of the injury
were vague, plaintiff still adequately pled an injury).
145
Waterhouse v. Hollingsworth, 2013 WL 5803136, at *3 (Del. Super. Ct. Oct. 10, 2013) (citing Keener v. Isken, 58
A.3d 407 (Del.2013)).
146
Defs.’ 12(b)(6) Opening Br. at 14.
147
Id. at 14-15.
148
River Bank Am. v. Tally-Ho Assocs., L.P., 1991 WL 35719, at *7 (Del. Super. Ct. Feb. 22, 1991) (“Superior Court
Civil Rules 18(a) and 20(a) permit joinder of claims and parties.”).
149
Del. Super. Ct. Civ. R. 18.
22
transaction, occurrence, or series of transactions or occurrences and if any question
of law or fact common to all these persons will arise in the action.150
The Abbott and Takeda Defendants claim that LHC “seeks to assert greater rights than its
claimants” which is “exactly what subrogation forbids” by employing Civil Rule 18(a).151 Civil
Rule 18(a), however, permits a third-party claim. Here, LHC, as subrogor, is standing in the
shoes of the third-party claims. Accordingly, Civil Rule 18(a) is proper as a tool for joinder here.
The Abbott and Takeda Defendants argue that LHC has failed to satisfy the procedural
standards of Civil Rule 20 because LHC has not met “the common issues/same transactions
joinder requirements.”152 The Court find that common issues/same transactions exist as plead in
the Amended Complaint. The Court notes that LHC alleges that plans members have common
issues—they all suffer from kidney disease.153 Moreover, LHC asserts that the injuries are
caused from the same source—the PPI products. Accordingly, LHC satisfies the procedural
routes of Civil Rule 20.
VI. CONCLUSION
For the reasons stated above, the Court DENIES the Motions.
August 11, 2023
Wilmington, Delaware
/s/ Eric M. Davis
Eric M. Davis, Judge
cc: File&ServeXpress
150
Del. Super. Ct. Civ. R. 20.
151
Defs.’ 12(b)(6) Reply Br. at 10.
152
Defs.’ 12(b)(6) Opening Br. at 14.
153
Compare the issue here with Tumlinson v. Advanced Micro Devices, Inc., 2010 WL 8250792, at *4 (Del. Super.
Ct. July 23, 2010) (Finding under Rule 20(a) severance of claims was appropriate because plaintiffs cause of injury
was drastically different.). Not so here. Plaintiffs cause of injuries were a result of the PPI products designed,
manufactured, and sold by Defendants.
23