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In Re: Avandia Marketing
September 7, 2011
IN RE: AVANDIA MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION
The opinion of the court was delivered by: Hon. Cynthia M. Rufe
THIS DOCUMENT APPLIES TO:
JAMES ROLAND on behalf of himself and all others similarly : situated v. SMITHKLINE BEECHAM CORPORATION d/b/a GLAXOSMITHKLINE
PAUL DUMPSON on behalf of himself and all others similarly : situated v. : SMITHKLINE BEECHAM CORPORATION d/b/a GLAXOSMITHKLINE
MEMORANDUM OPINION AND ORDER
The plaintiffs in these cases are former users of the prescription diabetes drug Avandia. Plaintiffs do not allege that they have been physically injured as a result of taking Avandia; instead they seek a refund of any monies they 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 "Medical Monitoring Class," respectively), but no classes have been certified. The defendant, GlaxoSmithKline LLC ("GSK"), has filed a motion to dismiss both cases. The motion will be granted.
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 Plaintiffs, this resulted in Plaintiffs and others
purchasing Avandia instead of seeking alternative treatments.
*fn2 Plaintiffs allege that they are residents of
California and that on or after May 25, 1999, they were prescribed
Avandia for the treatment of Type 2 diabetes, that they purchased the
drug and were "exposed" to Avandia for at least 12 weeks,
*fn3 and having been exposed, they are at high
risk for future myocardial ischemic events. *fn4
These are the only allegations in the complaints specific
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
A. California Consumer Protection Laws The First Claim for Relief is based upon the California Consumer Legal Remedies Act ("CLRA"), *fn11 the Second Claim for Relief alleges violation of the Unfair Competition Law ("UCL"), *fn12 and the Third Claim for Relief alleges violations of the False Advertising Law ("FAL"). *fn13 The first and second claims are on behalf of the proposed Medical Monitoring and Refund Classes; the ...
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