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Davis v. Edgewell Personal Care Brands, LLC

United States District Court, E.D. Washington

April 26, 2018

BRITTNEY DAVIS, an individual, and DARREN DAVIS and RENE DAVIS, husband and wife, and the marital community comprised thereof, Plaintiffs,
v.
EDGEWELL PERSONAL CARE BRANDS, LLC, a Delaware Limited Liability Company d/b/a Playtex Products; FRED MEYER STORES, INC., an Ohio Corporation d/b/a/ FredMeyer; and JOHN AND JANE DOES 1-10, Defendants.

          ORDER RE: DEFENDANTS' MOTIONS TO DISMISS

          Stanley A. Bastian United States District Judge

         Before the Court are Defendant Edgewell Personal Care Brands, LLC's Motion to Dismiss, ECF No. 5, and Defendant Fred Meyer Stores, Inc.'s Motion to Dismiss, ECF No. 7. A hearing on the motions was held on April 18, 2018, in Yakima, Washington. Plaintiffs were represented by Carl J. Oreskovich. Defendants were collectively represented by Rachel Reynolds and John W. Moticka.

         Motion Standard

         Pursuant to Fed.R.Civ.P. 12(b)(6), a defendant may move to dismiss a complaint for “failure to state a claim upon which relief may be granted.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In analyzing motions to dismiss, the Court must accept as true all well-pleaded factual allegations. Id.

         For a complaint to survive a motion to dismiss, the non-conclusory “factual content, ” and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief. Moss v. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). “A claim has facial plausibility . . . when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citation omitted) “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Id. (citation omitted).

         As the United States Supreme Court explained:

[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Ashcroft, 556 U.S. at 679.

         Background

         Plaintiff Brittney Davis used tampons that were purchased by her mother, Plaintiff Rene Davis at Defendant Fred Meyer Store, Inc.'s (“FredMeyer”) store. The tampons, specifically the Playtex Gentle Glide Tampons, were manufactured by Defendant Edgewell Personal Care Brands, LLC's (“Playtex”).

         Plaintiffs allege that as a result of Ms. Davis' tampon use, Ms. Davis suffered from Toxic Shock Syndrome (“TSS”). She spent approximately ten days in a drug-induced coma and four weeks in intensive care. As a result of TSS, Plaintiff Brittney Davis sustained severe, debilitating, and permanent injuries and disabilities, including, but not limited to, renal failure, heart damage, pneumonia, hair loss, and the loss of multiple toes. She needed further surgeries on her feet, including the amputation of toes, removal of dead tissue and skin and muscle grafts in an effort to allow her to walk again.

         The Complaint alleges that Defendant Playtex is a Delaware Limited Liability Company doing business in the State of Washington, with its headquarters located in Missouri. It also alleges that Defendant FredMeyer is an Ohio corporation, headquartered in Ohio, and doing business in the State of Washington.

         Plaintiffs are bringing six separate claims ...


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