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Spears v. Bausch & Lomb

March 9, 2007

ANDRE SPEARS, PLAINTIFF,
v.
BAUSCH & LOMB, DEFENDANT.



The opinion of the court was delivered by: Algenon L. Marbley United States District Judge

JUDGE MARBLEY

OPINION AND ORDER

I. INTRODUCTION

This matter is before the Court on Defendant's Motion to Dismiss Plaintiff's Complaint. Defendant Bausch & Lomb ("B-L") moves this Court to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted.

For the reasons stated herein, Defendant's Motion to Dismiss Plaintiff's Complaint is GRANTED.

II. FACTS

Viewing Plaintiff's Complaint, Opposition, and Renewal of Opposition as a whole, Plaintiff generally avers as follows.

On or about the year of 2005, and throughout that year, Plaintiff Andre Spears alleges that he used "Renew or ReNu" (henceforth "ReNu") on the recommendation, order, or prescription of an unidentified doctor at the Ohio State University Medical Center. ReNu is the trade name of a line of products made by B-L, some of which are used to clean contact lenses. Plaintiff alleges that use of ReNu caused his vision to deteriorate to the point that he "cannot see at all." Plaintiff states that as a result of the blindness caused by ReNu, he has experienced limitations on his freedom and now has physical handicaps.

This Court is unable to confidently discern which product or products were used by Plaintiff. He alleges in his Complaint that a doctor "prescribed" ReNu to him. In its Motion to Dismiss, Bausch & Lomb points out that there are "several, distinct ReNu brand contact lens solutions," none of which is sold on a prescription basis. In his Opposition and Renewal of Opposition, Plaintiff alleges that ReNu was "recommended or ordered rather than prescribed." Additionally, Plaintiff's Renewal of Opposition states that his sight was lost through the use of "both 'Contact Lens and Solution.'" Plaintiff's response brief contains a bar code, size in milliliters, a list of patents under which it was made, a web site address, and an order number of the type of product. It is still far from clear, however, which product or products are at issue in this case.

Plaintiff alleges that Bausch & Lomb violated his civil rights under 42 U.S.C. § 1983 by making the product that caused his blindness, and as a result seeks injunctive relief, compensatory and punitive damages, and costs including attorney fees.

III. STANDARD OF REVIEW

In considering a Rule 12(b)(6) motion to dismiss, this Court is limited to evaluating whether a plaintiff's complaint sets forth allegations sufficient to make out the elements of a cause of action. Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir. 1983). A complaint should not be dismissed under Rule 12(b)(6) "unless it appears beyond doubt that the [p]laintiff can prove no set of facts in support of his claim which would entitle him to relief." Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 724 (6th Cir. 1996) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). This Court must "construe the complaint liberally in the plaintiff's favor and accept as true all factual allegations and permissible inferences therein." Conley, 355 U.S. at 45-46. While the complaint need not specify every detail of a plaintiff's claim, it must give the defendant "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Gazette v. City of Pontiac,41 F.3d 1061, 1064 (6th Cir. 1994). While liberal, this standard of review does require more than the bare assertion of legal conclusions. Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir. 1993). A complaint must contain either direct or inferential allegations with respect to all the material elements necessary to sustain a recovery under some viable legal theory. Scheid v. Fanny Candy Shop Inc. 859 F.2d 434, 437 (6th Cir. 1988).

A court will hold pro se litigants' pleadings to less stringent standards than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). Federal courts sometimes also ignore the legal label attached to a pro se motion and recharacterize the motion in a different legal category. Castro v. United States, 540 U.S. 375 (2003). Notwithstanding this, "the general principle of American jurisprudence" is that ...


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