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Judy Leonard v. Taro Pharmaceuticals Usa

December 2, 2010

JUDY LEONARD,
PLAINTIFF,
v.
TARO PHARMACEUTICALS USA, INC., DEFENDANT.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant Taro Pharmaceuticals USA, Inc.‟s ("TARO‟s") Motion to Dismiss Plaintiff‟s Amended Complaint (doc. no. 11) pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff Judy Leonard‟s Amended Complaint, sounding in Pennsylvania common law negligence and strict products liability, asserts that Plaintiff was injured after taking prescription products containing the drug carbamazepine, which, Plaintiff claims, TARO designed, manufactured, sold and distributed in Pennsylvania. Amended Complaint (doc. no. 10).

Defendant removed this case from the Court of Common Pleas of Allegheny County, Pennsylvania, to this Court under 28 U.S.C. §1332, claiming complete diversity of the parties and averring that the damages will exceed $75,000. Notice of Removal (doc. no. 1), ¶¶ 1-7. Subsequently, Defendant filed a Motion to Dismiss the initial complaint, but Plaintiff‟s Amended Complaint rendered that Motion to Dismiss moot. TARO‟S Motion to Dismiss the seven-count Amended Complaint under F.R.Civ.P. 12(b)(6) argues that it fails to allege any claim upon which relief could be granted.

For the reasons that follow, this Court will grant in part and deny in part Defendant‟s Motion to Dismiss the Amended Complaint.

I. Background

The following facts are taken from the Amended Complaint and are accepted as true for purposes of deciding the Motion to Dismiss the Amended Complaint.

Plaintiff, a resident of Western Pennsylvania, was prescribed, purchased, and ingested the drug carbamazepine, which TARO allegedly manufactured, designed, distributed and sold in Pennsylvania. Amended Complaint (doc. no. 10), ¶¶ 2, 8-9, 15. As a result, Plaintiff developed severe adverse cutaneous reactions caused by her use of carbamazepine as prescribed, suffered permanent damage to her internal organs, and developed Stevens Johnson Syndrome, and/or Toxic Epidermal Necrolysis syndrome. Id. at ¶¶ 15-16.

Plaintiff alleges TARO failed to investigate the accuracy of its carbamazepine drug product labeling, specifically its warnings. Id. at ¶¶ 53-56. Plaintiff further alleges Defendant had a legal obligation to conduct such investigations and to ensure that its warnings were accurate, and claims Defendant breached that duty when it failed to inform the drug‟s prescribers and end users of the extent of the foreseeable side effects. Id. at ¶¶ 57-74.

Plaintiff‟s Amended Complaint states the following claims: negligence (Count I), negligence per se (Count II), misrepresentation by omission (Count III), negligent misrepresentation (Count IV), breach of express warranty (Count V), breach of implied warranties (Count VI), and negligence: violation of resident state duties of care (Count VII). Defendant seeks to dismiss Plaintiff‟s misresentation by omission (Count III), negligent misrepresentation (Count IV), breach of express warranty (Count V), and breach of implied warranties (Count VI) claims pursuant to F.R.Civ. P. 12(6) on the grounds that such claims are barred by Hahn v. Richter, 673 A.2d 888 (Pa. 1996), in which the Pennsylvania Supreme Court held that negligence was the only basis of liability on a complaint seeking damages for failure to provide adequate warnings with regard to prescription drugs, and that strict liability is not a valid cause of action in such cases. Defendant also seeks to dismiss the negligence claims (negligence (Count I), negligence per se (Count II), and negligence: violation of resident state duties of care (Count VII)) for failure to state a claim, for various reasons.

II. Standard of Review

In considering a Rule 12(b)(6) motion, federal courts require notice pleading, as opposed to the heightened standard of fact pleading. Federal Rule of Civil Procedure 8(a)(2) requires only " "a short and plain statement of the claim showing that the pleader is entitled to relief,‟ in order to "give the defendant fair notice of what the ... claim is and the grounds on which it rests.‟ " Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

To survive a motion to dismiss, plaintiff must allege sufficient facts that, if accepted as true, state "a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 at 570). A claim has facial plausibility when a plaintiff pleads facts that allow the court to draw the reasonable inference that the defendant may be liable for the misconduct alleged. Id. at 1949. However, the court is ""not bound to accept as true a legal conclusion couched as a factual allegation.‟ " Iqbal, 129 S.Ct. at 1950 (quoting Twombly, 550 U.S. at 555). In deciding a motion to dismiss, a court must determine whether the complaint "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." PA Prison Soc. v. Cortes, 622 F.3d 215, 233 (3d Cir. 2010), ...


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