Hu v. Janssen Pharmaceuticals

Background

Sophie Hu sued Bayer HealthCare Pharmaceuticals, Inc. and Janssen Pharmaceuticals, Inc. concerning the medication Xarelto. Her amended complaint alleged that her mother, Fumian Zhao, suffered a cerebellar hemorrhage from using the medication, resulting in severe pain and other harm. The complaint asserted product-liability claims, most of which appeared to rely on a failure-to-warn theory. Hu also sought compensation for injuries and suffering to her family. She had litigated without a lawyer.

The case was originally filed in this court in August 2021, transferred to the Eastern District of Louisiana for coordinated proceedings in December 2021, and returned to this court in January 2024. Hu later sought appointment of counsel. The defendants moved to dismiss Hu’s claim for loss of parental consortium and asked the court to pause the remaining claims for 90 days so she could obtain counsel.

Loss-of-Consortium Claim

The court applied Federal Rule of Civil Procedure 12(b)(6), which allows dismissal when a complaint does not state a legally recognized claim supported by enough facts. The defendants argued that Hu’s claim for harm arising from her mother’s incapacitation was barred by California law.

The court agreed. Relying on California authority, it held that California does not recognize a nonstatutory cause of action for loss of parental consortium. The court therefore dismissed Hu’s loss-of-consortium claim without leave to amend. The order’s conclusion states the resulting disposition as dismissal with prejudice.

Claims Asserted for Hu’s Mother or Others

The defendants also argued that Hu lacked authority to prosecute her remaining claims because she asserted them on her mother’s behalf and was not represented by counsel. Hu stated that she had been appointed her mother’s conservator. The court explained that a conservator cannot prosecute civil claims on behalf of a conservatee. It further explained that a guardian ad litem—a person appointed to direct litigation for another—may direct litigation but, under the cited federal law, a nonlawyer guardian ad litem still must have counsel to litigate claims for someone else.

The court found that the remaining claims were alleged on Zhao’s behalf. It held that Hu could not bring those claims without counsel, even if she were acting as a guardian ad litem. The opinion also notes uncertainty about whether Hu sought relief on behalf of family members other than her mother, but states that Hu likewise could not bring claims for others without counsel.

Disposition

The court did not pause the case for 90 days because Hu had already made substantial efforts over several years to find counsel without success. The court granted the defendants’ motion to dismiss, dismissed Hu’s loss-of-consortium claim with prejudice, and dismissed her remaining claims without prejudice. The order states that the remaining claims could be refiled if Hu obtained representation. Because no claims remained, the Clerk was directed to enter judgment for the defendants and close the case.