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David S. Tatum v. Plaintiff

October 18, 2012

DAVID S. TATUM,
v.
PLAINTIFF, TAKEDA PHARMACEUTICALS NORTH AMERICA, INC., TAKEDA PHARMACEUTICALS AMERICA, INC., TAKEDA PHARMACEUTICALS INTERNATIONAL, INC., TAKEDA PHARMACEUTICALS COMPANY LIMITED, TAKEDA PHARMACEUTICALS, LLC, TAKEDA AMERICA HOLDINGS, INC., TAKEDA GLOBAL RESEARCH & DEVELOPMENT CENTER, INC., TAKEDA SAN DIEGO, INC., TAP PHARMACEUTICALS PRODUCTS, INC., ABBOTT LABORATORIES, INC., DOES 1 THROUGH 100 INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: DuBois, J.

MEMORANDUM

I.INTRODUCTION

This is a product liability action in which plaintiff David S. Tatum alleges that the PREVACID designed, manufactured, and marketed by defendants weakened his bones, ultimately leading to hip fractures. The defendants filed a motion to dismiss many of the claims in Tatum's First Amended Complaint. For the reasons that follow, the Court grants in part and denies in part defendants' motion.

II.BACKGROUND*fn1

Tatum was prescribed PREVACID, a pharmaceutical drug designed, manufactured, and marketed by defendants. (Am. Compl. 3, 7.) After taking PREVACID, Tatum began feeling pain in his left hip, and he was later diagnosed with Stage III Avascular Necrosis. (Id. at 7.) Tatum's bones became weakened or brittle, causing multiple fractures. (Id. at 8.) As a result, he underwent total hip replacement surgery. (Id. at 7.)

Tatum claims that defendants were aware of the risks of PREVACID, but chose not to disclose them. His First Amended Complaint contains fourteen counts: Count I -- equitable tolling of applicable statute of limitations; Count II -- negligence; Count III -- negligent failure to adequately warn; Count IV -- negligence per se; Count V -- negligent misrepresentation; Count VI -- breach of express warranty; Count VII -- breach of implied warranty for a particular purpose; Count VIII -- breach of implied warranty of merchantability; Count IX -- strict product liability: defective design; Count X -- strict product liability: manufacturing defect; Count XI -- strict product liability: failure to warn; Count XII -- fraudulent concealment; Count XIII -- unjust enrichment; and Count XIV -- violations of Pennsylvania Unfair Trade Practices and Consumer Protection Law. Tatum additionally alleges that he is entitled to punitive damages.

Defendants have moved to dismiss Count I, Counts V to XIV, and the request for punitive damages.

III.STANDARD OF REVIEW

To survive a motion to dismiss under Rule 12(b)(6), a civil plaintiff must allege facts that "'raise a right to relief above the speculative level.'" Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

IV.DISCUSSION

Defendants have moved to dismiss eleven of the fourteen counts in the First Amended Complaint, in addition to Tatum's request for punitive damages. The Court will address each in turn.

A. Count I: Equitable Tolling

Defendants initially move to dismiss Tatum's claim for equitable tolling alleged in Count I. Tatum alleges that "[t]he running of any statute of limitations has been tolled by reason of Defendants' fraudulent concealment." (Am. Compl. 11.) Fraudulent concealment is a doctrine which "serves to toll the running of the statute of limitations." Fine v. Checcio, 582 Pa. 253, 271 (2005). Unlike the tort of fraudulent concealment alleged in Count XII, this doctrine is not an independent cause of action. Thus, Count I is dismissed with prejudice.

It appears that by moving to dismiss Count I, defendants are also attempting to attack Tatum's tort claims, which are subject to a two-year statute of ...


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