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Kline v. Pfizer

January 6, 2009


The opinion of the court was delivered by: Robert F. Kelly Senior Judge



Presently before the Court is Plaintiff Brian Kline's ("Kline") Motion for Partial Reconsideration of the Order Dismissing Counts V and VI of Kline's Complaint. For the reasons set forth below, Kline's Motion for Partial Reconsideration is denied.


Defendant Pfizer, Inc. ("Pfizer") is a prescription drug manufacturer responsible for the manufacture and distribution of the prescription smoking cessation drug, Chantix. Kline was prescribed and began using Chantix in July 2007. Shortly thereafter, Kline asserts that he began experiencing "manic behavior, aggressive and violent behavior and diagnosis of psychotic disorder for which [he] was hospitalized in August 2007." (Compl. ¶¶ 11, 19.) On July 10, 2008, Kline filed a Complaint against Pfizer in this Court, asserting a host of claims, including: negligence (Count I); strict liability (Count II); breach of express warranty (Count III); breach of implied warranty (Count IV); fraudulent misrepresentation (Count V); fraudulent concealment (Count VI); reckless and/or negligent misrepresentation & concealment (Count VII); gross negligence (Count VIII); and unjust enrichment (Count IX). Pfizer moved to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on September 9, 2008. Kline filed his Response in Opposition on October 7, 2008. On October 31, 2008, this Court entered an Order dismissing Counts II, III, IV, V, VI, VIII and IX of Kline's Complaint. On November 10, 2008, Kline filed a Motion for Partial Reconsideration of this Court's Order of October 31, 2008. With this Motion, Kline asks this Court to reconsider its dismissal of Count V (fraudulent misrepresentation) and Count VI (fraudulent concealment).


"The United States Court of Appeals for the Third Circuit has held that the purpose of a motion of reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." Cohen v. Austin, 869 F. Supp. 320, 321 (E.D. Pa. 1994). Accordingly, a district court will grant a party's motion for reconsideration in any of three situations: (1) the availability of new evidence not previously available, (2) an intervening change in controlling law, or (3) the need to correct a clear error of law or to prevent manifest injustice. Reich v. Compton, 834 F. Supp. 753, 755 (E.D. Pa. 1993). Federal courts have a strong interest in the finality of judgments, and motions for reconsideration should be granted sparingly. Continental Cas. Co. v. Diversified Indus., Inc., 884 F. Supp. 937, 943 (E.D. Pa. 1995). Dissatisfaction with the Courts ruling is not a proper basis for reconsideration. Glendon Energy Co. v. Borough of Glendon, 836 F. Supp. 1109, 1122 (E.D. Pa. 1993). Therefore, a motion for reconsideration should not be used as a vehicle to "reconsider repetitive arguments that have already been fully examined by the court." EEOC v. Dan Lepore & Sons Co., No. 03-5462, 2004 WL 569526, at *2 (E.D. Pa. March 15, 2004).


As discussed at length in this Court's opinion of October 31, 2008, the Pennsylvania Supreme Court has determined that negligence is the sole theory upon which a plaintiff may recover against a prescription drug manufacturer in a suit based upon the manufacturer's failure to warn. Hahn v. Richter, 673 A.2d 888, 891 (Pa. 1996); see also Colacicco v. Apotex,, Inc., 432 F. Supp. 2d 514 (E.D. Pa. 2006). Accordingly, Kline does not contend that his fraud claims remain viable under a failure to warn theory; rather, he asserts that his claims for fraudulent misrepresentation and concealment should not have been dismissed because his Complaint is not limited solely to a claim for failure to warn. In support of this contention, he points to the first paragraph of his Complaint, which reads: "This is an action for damages relating to the Defendant's design, manufacture, sale, testing, marketing, advertising, promotion, and/or distribution of the unsafe drug varenicline, tradename Chantix." (Compl. ¶ 1.)

Nonetheless, a review of the fraud allegations set forth in Kline's Complaint reveals that these claims are rooted in a theory of failure to warn. The allegations making up Kline's claims for fraudulent misrepresentation and concealment are contained in paragraphs 182-205 of his Complaint. With regard to these claims, Kline specifically asserts:

182. At all relevant times, Defendants knew of the use for which CHANTIX, [sic] was intended and expressly and/or impliedly warranted their respective drug was of merchantable quality and safe and fit for such use. 183. Defendants' superior knowledge and expertise, their relationship of trust and confidence with doctors and the public, their specific knowledge regarding the risks and dangers of CHANTIX and their intentional dissemination of promotional and marketing information about CHANTIX for the purpose of maximizing its sales, [sic] each gave rise to the affirmative duty to meaningfully disclose and provide all material information about the risks and harms associated with the drugs.

184. Defendants fraudulently represented to Plaintiff, Plaintiff's physicians, and other persons and professionals on whom it was known by Defendants that Plaintiff would rely, as well as the public at large, that the [sic] CHANTIX was safe to ingest and that the utility of this product outweighed any risk in use for their intended purposes. Also, by negligently failing to disclose to Plaintiff, and others for the benefit of Plaintiff, important safety and injury information, thereby suppressing material facts about the drug, while having a duty to disclose such information, which duty arose from their actions of making, marketing, promoting, distributing and selling pharmaceutical products to Plaintiff and others, Defendants further led Plaintiff to rely upon the safety of the product in its use. 185. The false representations of Defendants were fraudulently made, in that the subject drug products in fact caused injury, were unsafe, and the benefits of their use were far outweighed by the risk associated with use thereof. 186. Defendants, individually and collectively, committed acts of intentional misrepresentation and intentional concealment by suppressing material facts relating to the dangers and injuries associated with, and caused by, the use of the subject drug. 187. Defendants knew or should have known that their representations and/or omissions were false. Defendants made such false representations with the intent or purpose that Plaintiff and Plaintiff's physicians would rely upon such representations, leading to the use of the subject drugs by Plaintiff. 188. Defendant made fraudulent misrepresentations with respect to CHANTIX in the following particulars:

a. Defendant represented through its labeling, advertising, marketing materials, detail persons, seminar presentations, publications, notice letters, and regulatory submissions that CHANTIX had been tested and found to be safe and effective as an aid to smoking cessation; and

b. Defendant represented that CHANTIX was as safe and/or safer and/or more efficacious than ...

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