United States District Court, E.D. Washington
BRITTNEY DAVIS, an individual, and DARREN DAVIS and RENE DAVIS, husband and wife, and the marital community comprised thereof, Plaintiffs,
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
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.
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.
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).
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.
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,
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.
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
are bringing six separate claims ...