The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
)
TIFFANY WHERRY, and husband )
LENDALE HUNT )
)
Plaintiffs, )
) Case No. 2:24-cv-2645-JPM-atc
v. )
)
ABBVIE, INC. )
)
Defendant. )
)
ORDER GRANTING PARTIAL MOTION TO DISMISS
Before the Court is Defendant AbbVie Inc.’s (“Defendant’s” or “AbbVie’s”) Partial
Motion to Dismiss as to Plaintiffs Tiffany Wherry (“Wherry”) and Lendale Hunt’s (“Hunt”)
(collectively, “Plaintiffs’”) claims under the Tennessee Consumer Protection Act (“TCPA”) and
for breach of express warranty. (ECF No. 9.) Because Plaintiffs have not pled sufficient facts as
to either claim, the Partial Motion to Dismiss is GRANTED.
I. BACKGROUND1
A. Factual Background
Plaintiff Wherry suffers from Crohn’s disease. (ECF No. 1 at PageID 2.) To manage her
condition, her physician prescribed “Skyrizi 36 mg/2.4 mL prefilled cartridge and ‘On-Body
injector.’” (Id.) Wherry received the Skyrizi cartridge and injector on or about June 12, 2023, and
injected the Skyrizi on or about June 15, 2023. (Id.) Wherry began to experience symptoms the
1 For purposes of the Motion to Dismiss, the Court takes the facts alleged in the Complaint as true. See Ashcroft v.
Iqbal, 556 U.S. 662, 666 (2009). This section should not be construed as a finding on any listed fact.
next day, which included “severe fever and burning pain and redness at the injection site.” (ECF
No. 1-2 at PageID 12.) She was transported to the hospital, where she was treated with antibiotics.
(Id.) On or about June 29, 2023, the “affected area split open[,] exposing a large area of necrotic
tissue in [Wherry’s] thigh[,] which had to be surgically removed from her leg[.]” (Id.) This led to
“severe personal injuries[,] permanent disfigurement, nerve pain, and loss of sensation in part of
her leg and vagina.” (Id.)
Plaintiffs’ Complaint stems from this incident and asserts five claims:
(1) negligence and/or recklessness under common law, including res ipsa loquitor;
(2) strict liability pursuant to both Tennessee Code Annotated (“TCA”) §§ 29-28-101 et
seq. and common law;
(3) breach of warranty in violation of TCA §§ 47-2-314 (implied warranty of
merchantability), 47-2-316 (express warranty), and 47-2-315 (implied warranty of
fitness for a particular purpose);
(4) violation of the Consumer Protection Act as found in TCA §§ 47-18-101 et seq.;2 and
(5) loss of consortium.
(ECF No. 1-2 at PageID 6–13.)
B. Procedural Posture
Defendant removed the case to federal court on September 12, 2024. (ECF No. 1.) The
Court has subject matter jurisdiction under 28 U.S.C. § 1332.
Defendant filed the instant Motion on September 18, 2024. (ECF No. 9.) The Court
extended Plaintiffs’ deadline to respond to the Motion to November 15, 2024. (ECF No. 13.) To
date, Plaintiffs have failed to respond. (See ECF No. 19 (Defendant’s Notice of Plaintiffs’ Failure
to Respond).)
2 The Court previously dismissed the TCPA claim. (See ECF No. 18 at PageID 215 n.1)
II. LEGAL STANDARD
A. Failure to State a Claim
Federal Rule of Civil Procedure 12(b)(6) allows dismissal of a complaint that “fail[s] to
state a claim upon which relief can be granted.” It permits the “defendant to test whether, as a
matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is
true.” Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993) (citing Nishiyama v. Dickson Cnty.,
814 F.2d 277, 279 (6th Cir. 1987)). A motion to dismiss allows the court to dismiss meritless
cases which would waste judicial resources and result in unnecessary discovery. Brown v. City of
Memphis, 440 F. Supp. 2d 868, 872 (W.D. Tenn. 2006).
When evaluating a 12(b)(6) motion, the Court must determine whether the complaint
alleges “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) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). A claim is plausible on its face if “the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
A complaint need not contain detailed factual allegations. Twombly, 550 U.S. at 570. A
plaintiff without facts who is “armed with nothing more than conclusions,” however, cannot
“unlock the doors of discovery.” Iqbal, 556 U.S. at 678–79; Green v. Mut. of Omaha Ins. Co., No.
10-2487, 2011 WL 112735, at *3 (W.D. Tenn. Jan. 13, 2011), aff’d, 481 F. App’x 252 (6th Cir.
2012). A court “need not accept as true legal conclusions or unwarranted factual inferences.”
Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). “While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556
U.S. at 679.
B. Breach of Express Warranty
Breach of express warranty claims “focus[] on whether a product conforms to the
manufacturer’s express statements about the product, rather than on whether the product is
defective or unreasonably dangerous.” Coffey v. Dowley Mfg., Inc., 187 F. Supp. 2d 958, 969
(M.D. Tenn. 2002) (citing Ladd by Ladd v. Honda Motor Co., 939 S.W.2d 83, 97
(Tenn.App.1996)), aff’d, 89 F. App’x 927 (6th Cir. 2003).
Thus, to make a prima facie claim for breach of express warranty, a plaintiff must show:
“(1) the seller made an affirmation of fact intending to induce the buyer to purchase the goods, (2)
the buyer was in fact induced by the seller’s acts, and (3) the affirmation of fact was false regardless
of the seller’s knowledge of the falsity or intention to create a warranty.” Strayhorn v. Wyeth
Pharms., Inc., 737 F.3d 378, 395 (6th Cir. 2013) (citing Coffey, 187 F. Supp. 2d at 969).
III. ANALYSIS
Because the Court previously dismissed the TCPA claim, (see ECF No. 18 at PageID 215
n.1), only the breach of express warranty claim remains. (See ECF No. 9.)
Defendant argues the Court should dismiss Plaintiffs’ express warranty claim because they
have “not alleged any facts showing that [Defendant] made an affirmation of fact at all—whether
to her prescribing physician or to Plaintiff Wherry.” (ECF No. 9-1 at PageID 77.) Defendant
bases its argument on two theories: (1) the learned intermediatory theory, such that Defendant’s
duty to provide information ran to the prescribing physician, not to Wherry; and (2) “boilerplate
allegations of express warranty” that do not rise to a cognizable claim. (Id. at PageID 77–78.)
The Court finds Defendant’s argument as to the “boilerplate allegations of express
warranty” persuasive. (Id.)3 Plaintiffs make two factual allegations as to the cause of Wherry’s
3 Because the Court finds this argument persuasive, it does not reach the learned intermediatory theory argument.
injury. (See ECF No. 7-1 at PageID 47–48.) First, Plaintiffs “aver that the dose of Skyrizi was
toxic and/or contaminated, and/or that the On-Body injector administered an incorrect dose and/or
injected it into the wrong layer of tissue.” (Id.) In the alternative, they allege “the Skyrizi and/or
On-Body injector were defective and/or unreasonably dangerous as a result of . . . Defendants’
failure to adequately warn.” (Id.) Plaintiffs also include a citation to the Tennessee Annotated
Code which addresses express warranties. (Id. at PageID 52–53.) However, none of the above
rise to sufficient pleading for a claim of breach of express warranty.
For the first allegation, Plaintiffs does not sufficient plead facts for breach of express
warranty. Plaintiffs are alleging the Skyrizi or On-Body injector products were defective. (See
ECF No. 7-1 at PageID 47–48.) However, a claim for breach of express warranty does not depend
on whether a productive is “defective or unreasonably dangerous.” Coffey, 187 F. Supp. 2d at
969. Rather, it depends on express statements made by the manufacturer. Id. And like the
plaintiffs in Strayhorn, Plaintiffs here “do not identify any affirmation of fact made on the product
labeling that they allege to be false.” See 737 F.3d at 395 (emphasis omitted). Thus, Plaintiffs’
first allegation is insufficient to plead a claim for breach of express warranty. See id.
Plaintiffs’ alternative allegation—failure to warn—fares no better. This allegation does
not involve an “affirmation of fact made on the product labeling that [is] allege[d] to be false;
rather, [it is an] alleg[ation] that the labeling was inadequate.” See id. Thus, the Court finds it
unavailing as to breach of express warranty. See id.
Finally, the portion of Plaintiffs’ Complaint regarding breach of warranty does not contain
sufficient facts to plead a claim for breach of express warranty. Plaintiffs cite the Tennessee
Annotated Code provision on express warranties, which they allege “Defendant violated by
making certain express warranties as shown through advertisements, for the product and by the
information provided with the product at or about the time of its sale, which warranties proved to
be false and/or that the said Defendant violated or breached.” (ECF No. 7-1 at PageID 52–53
(citing Tenn. Code Ann. § 47-2-313).) This portion of the Complaint, however, contains no facts
as to an affirmation from Defendant, nor facts as to Defendant inducing Plaintiffs to purchase
Skyrizi. Indeed, it is a legal conclusion which the Court need not accept as true. Morgan, 829
F.2d at 12. Thus, it cannot support Plaintiff Wherry’s claim for breach of express warranty. Iqbal,
556 U.S. at 679.
IV. CONCLUSION
For the reasons discussed above, Defendant’s Partial Motion to Dismiss is GRANTED.
Plaintiffs’ remaining claims are:
(1) negligence and/or recklessness under common law, including res ipsa loquitor;
(2) strict liability pursuant to both Tennessee Code Annotated (“TCA”) §§ 29-28-101 et
seq. and common law;
(3) breach of warranty in violation of TCA §§ 47-2-314 (implied warranty of
merchantability) and 47-2-315 (implied warranty of fitness for a particular purpose);
and
(4) loss of consortium.
SO ORDERED, this 16th day of December, 2024.
/s / Jon P. McCalla
JON P. MCCALLA
UNITED STATES DISTRICT COURT JUDGE