United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
RONALD A. GUZMAN, District Judge.
Plaintiff sues defendants for negligence and fraud to recover for injuries he allegedly sustained after taking the generic version of a drug defendants manufacture. Defendants have moved pursuant to Federal Rule of Civil Procedure ("Rule")12(b)(6) to dismiss the complaint. For the reasons set forth below, the Court grants in part and denies in part the motion.
On February 29, 2012, plaintiff, who lives in Virginia, was diagnosed with bronchitis. (Compl. ¶¶ 2, 13-14.) His doctor prescribed Biaxin, an antibiotic designed, manufactured, labeled, and marketed by defendants, for plaintiff. ( Id. ¶ 14.) In accordance with Virginia law, the pharmacy that filled plaintiff's prescription dispensed Clarithromycin, the generic equivalent to Biaxin, which is manufactured by Roxane Laboratories, Inc. ( Id. ¶ 15.)
Plaintiff had no history of mental illness, but after taking the drug, he became psychotic and delusional, crashed his car and attacked the fire fighters who came to his aid. ( Id. ¶¶ 12, 17, 34-71.) As a result, plaintiff was arrested and charged with a number of offenses, including attempted murder. ( Id. ¶ 74.) After plaintiff spent three months in pretrial detention, and multiple psychiatrists concluded that he was involuntarily intoxicated by Clarithromycin at the time of the offenses, the state of Virginia dismissed the charges against him. ( Id. ¶¶ 75-78.)
On a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded factual allegations of the complaint, drawing all reasonable inferences in plaintiff's favor. Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009). "[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations" but must contain "enough facts to state a claim for relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
In Count I, plaintiff alleges that defendants are liable for failing to warn doctors and consumers about the possible psychotic side effects of Biaxin and Clarithromycin. ( Id. ¶¶ 19-33, 79-84.) Under Virginia law, which the parties agree applies, a negligent failure to warn claim is governed by the Restatement of Torts, which states:
One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel... for physical harm caused by the use of the chattel..., if the supplier[:]
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
Restatement (Second) of Torts § 388; see Featherall v. Firestone Tire & Rubber Co., 252 S.E.2d 358, 366 (Va. 1979) (adopting § 388 and stating that "[t]he duty to warn stems from the view that the manufacturer should have superior knowledge of his product").
Plaintiff admits that defendants were not the "suppliers" of the Clarithromycin he took. (Compl. ¶¶ 8-10, 14-15.) Thus, plaintiff cannot, as a matter of Virginia law, state a failure to warn claim against defendants. See Featherall, 252 S.E.2d at 366; see also Baker v. Poolservice Co., 636 S.E.2d 360, 365 (Va. 2006) (stating that plaintiff's "reliance on Featherall and § 388 of the Restatement (Second) of Torts to argue [that a spa repair ...