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In Re: Avandia Marketing, Sales Practices and v. Smithkline Beecham Corporation D/B/A Glaxosmithkline

September 7, 2011

IN RE: AVANDIA MARKETING, SALES PRACTICES AND PRODUCTS
LIABILITY LITIGATION CLIFFORD CARTWRIGHT
ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED
v.
SMITHKLINE BEECHAM CORPORATION D/B/A GLAXOSMITHKLINE



The opinion of the court was delivered by: Hon. Cynthia M. Rufe

THIS DOCUMENT APPLIES TO:

07-MD-01871

MEMORANDUM OPINION AND ORDER

Rufe, J.

The plaintiff in this case is a former user of the prescription diabetes drug Avandia. Plaintiff does not allege that he has been physically injured as a result of taking Avandia; instead he seeks a refund of any monies he paid for Avandia (including insurance co-pays) and medical monitoring. Each type of relief is sought on behalf of a class of similarly-situated individuals (the "Refund Class" and the "Monitoring Class," respectively), but no classes have been certified. The defendant, GlaxoSmithKline LLC ("GSK"), has filed a motion to dismiss. The motion will be granted.

I. BACKGROUND

Plaintiff alleges that GSK promoted the use of Avandia to lower blood-sugar levels of patients with Type 2 diabetes. Plaintiff also alleges that taking Avandia significantly increases the patient's chances of suffering a heart attack or susceptibility to other health risks, and that GSK concealed the risks of Avandia use while promoting the drug's safety, efficacy, and effectiveness through a fraudulent and deceptive marketing program. *fn1 According to Plaintiff, this concealment resulted in Plaintiff and others purchasing Avandia instead of seeking alternative treatments. *fn2 Plaintiff alleges that he is a resident of Florida and that on or after May 25, 1999, he was prescribed Avandia for the treatment of Type 2 diabetes, that he purchased the drug and was "exposed" to Avandia for at least 12 weeks, *fn3 and having been exposed, he is at high risk for future myocardial ischemic events. *fn4 These are the only allegations in the complaint specific to Plaintiff.

II. LEGAL STANDARD

Dismissal of a complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted is appropriate where a plaintiff's "plain statement" does not possess enough substance to show that plaintiff is entitled to relief. *fn5 In determining whether a motion to dismiss is appropriate the court must consider those facts alleged in the complaint, accepting the allegations as true and drawing all logical inferences in favor of the non-moving party. *fn6 Courts are not bound to accept as true legal conclusions couched as factual allegations. *fn7 Something more than a mere possibility of a claim must be alleged; the plaintiff must allege "enough facts to state a claim for relief that is plausible on its face." *fn8 The complaint must set forth direct or inferential allegations with regard to all the material elements necessary to sustain recovery under some viable legal theory. *fn9 The court has no duty to "conjure up unpleaded facts that might turn a frivolous action . . . into a substantial one." *fn10

III. DISCUSSION

A. Florida Deceptive and Unfair Trade Practices Act

In his first claim for relief, Plaintiff alleges violations of the Florida Deceptive and Unfair Trade Practices Act *fn11 seeking both refunds and medical monitoring. To state a claim under the statute, the complaint must not only plead that the conduct complained of was unfair and deceptive, but also that the complaining party was aggrieved by the alleged act. *fn12 Plaintiff here has not done so; although Plaintiff has made exhaustive allegations regarding GSK's alleged unfair or deceptive practices, the complaint fails to identify any specific advertisements or other materials that Plaintiff viewed, how he was misled by GSK's alleged misrepresentations or how these misrepresentations caused any injury. *fn13 The complaint also fails to allege that the prescribing physician received any misrepresentation of fact that was relied upon in prescribing Avandia. *fn14 All of these are facts that should be within Plaintiff's knowledge, and therefore the failure to allege them cannot be excused. *fn15

B. Medical Monitoring

On behalf of the proposed Florida Medical Monitoring Class, Plaintiff alleges that "[a]s a direct and proximate result of Defendant's misrepresentations regarding Avandia's safety, Plaintiff and the Florida Medical Monitoring Class have an increased risk of contracting a serious latent disease and will ...


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