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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: Rufe, J.

07-MD-01871

THIS DOCUMENT APPLIES TO: HON. CYNTHIA M. RUFE

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

CIVIL ACTION NO. 07-5203 CIVIL ACTION 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.

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 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 to Plaintiffs.

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. California Consumer ...


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