IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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 CIVIL ACTION on behalf of himself and all others similarly : situated v. SMITHKLINE BEECHAM CORPORATION d/b/a GLAXOSMITHKLINE NO. 07-5203 PAUL DUMPSON CIVIL ACTION on behalf of himself and all others similarly : situated v. : SMITHKLINE BEECHAM CORPORATION d/b/a GLAXOSMITHKLINE NO. 10-2476
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
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
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 remaining claim is on behalf of the proposed Refund Class only. Plaintiffs seek damages and injunctive relief.
The CLRA prohibits "unfair methods of competition and unfair or deceptive acts or practices." *fn14 The UCL makes actionable any "unlawful, unfair or fraudulent business act or practice." *fn15 The FAL makes it unlawful to make or disseminate any statement concerning property or services that is "untrue or misleading." *fn16 To state a claim for false advertising, a plaintiff must allege that (1) the statements in the advertising are untrue or misleading; and (2) the defendants knew, or by the exercise of reasonable care should have known, that the statements were untrue or misleading. *fn17
Under the California statutes, fraud is not an essential element
of a claim; however, to the extent that the facts alleged necessarily
constitute fraud, even if the word fraud is not used, then the claims
are subject to the heightened pleading requirements of Federal Rule of
Civil Procedure 9(b). *fn18 If the
allegations necessarily constitute fraud, the "'indispensable elements
of a fraud
claim include a false representation, knowledge of its falsity,
intent to defraud, justifiable reliance, and damages.'"
*fn19 Plaintiffs argue that their claims are not
all grounded in fraud, in that GSK acted "unfairly" by failing to
follow-up on red flags that were "clearly evident" and should have
triggered the performance of studies. *fn20
Although Plaintiffs in a few paragraphs of the complaints refer to
willful blindness instead of actual fraud, the complaints overall
allege "a unified course of fraudulent conduct" such that they "brim
with allegations of intentional conduct." *fn21
Because Plaintiffs have not alleged facts to support
justifiable reliance on Defendant's alleged misdeeds, and the
statutory claims fail to state a cause of action. *fn22
Plaintiffs fail to allege with specificity any connection between Defendant's conduct and any injury to Plaintiffs. The complaints do not allege when Plaintiffs took Avandia, for how long they took it (other than for at least 12 weeks), who prescribed it, what advertising materials or information Plaintiffs relied upon (or even read), what information was provided to the (unidentified) prescribing physicians, or how much Plaintiffs paid for Avandia. Nor do the complaint allege that the prescribing physicians or Plaintiffs actually relied upon any alleged misrepresentations. *fn23 In short, Plaintiffs' complaints as currently pleaded are form complaints, without any information about the individual claims, and are insufficient to state a claim as to Plaintiffs. *fn24
Plaintiffs also argue that even if they have not alleged a monetary loss, they are entitled to seek injunctive relief. However, as Defendant correctly notes, Plaintiffs have not alleged a risk of future violations such that injunctive relief would be appropriate (indeed, Plaintiffs allege that Defendant's schemes have been revealed and Avandia will be prescribed rarely, if ever, in the future). Thus, no basis for granting injunctive relief has been alleged.
B. Unjust Enrichment
In addition to the statutory claims, the Fourth Claim for Relief alleges unjust enrichment on behalf of the proposed Refund Class. Plaintiffs do not dispute that the claim for unjust enrichment is dependent upon the valid assertion of an underlying tort claim. As no such claim has been alleged, the unjust enrichment claim will be dismissed.
Plaintiffs' complaints, which are nearly devoid of any allegations specific to Plaintiffs, fail to state any claim upon which relief can be granted. Defendant's motion to dismiss will be granted without prejudice; Plaintiffs may file an amended complaint.
An appropriate order will be entered.