United States District Court, E.D. Pennsylvania
from various states filed ten separate lawsuits against Merck
& Co., Inc. and Merck Sharp & Dohme Corp.
(collectively “Merck”) seeking damages for
personal injuries sustained as a result of the administration
to them of Zostavax, Merck's live vaccine designed to
prevent shingles. Merck timely removed these actions to this
court on March 13, 2017 based on diversity of citizenship and
an amount in controversy in excess of $75, 000, exclusive of
interests and costs. See 28 U.S.C. § 1332(a).
Plaintiffs thereafter filed motions to remand these actions
to the Court of Common Pleas of Philadelphia County. The
court has denied these motions. Before the court are the
motions of Merck under Rules 12(b)(6) and 9(b) of the Federal
Rules of Civil Procedure to dismiss Count VI of the
complaints against Merck on the ground that plaintiffs fail
to state with particularity the circumstances constituting
deciding a motion to dismiss under Rule 12(b)(6), the court
must accept as true all factual allegations in the complaint
and draw all inferences in the light most favorable to the
plaintiff. See Phillips v. Cty. of Allegheny, 515
F.3d 224, 233 (3d Cir. 2008); Umland v. PLANCO Fin.
Servs., Inc., 542 F.3d 59, 64 (3d Cir. 2008). We must
then determine whether the pleading at issue
“contain[s] sufficient factual matter, accepted as
true, to ‘state a claim for relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim must do more
than raise a “mere possibility of misconduct.”
Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir.
2009) (quoting Iqbal, 556 U.S. at 679). Under this
standard, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S. at 678.
of fraud trigger the heightened pleading requirement of Rule
9(b) of the Federal Rules of Civil Procedure. In re
Burlington Coat Factory Sec. Litig., 113 F.3d 1410, 1417
(3d Cir. 1997). Rule 9(b) provides, “In alleging fraud
or mistake, a party must state with particularity the
circumstances constituting fraud.” Fed.R.Civ.P. 9(b).
The purpose of Rule 9(b) is to “give defendants notice
of the claims against them, provide an increased measure of
protection for their reputations, and reduce the number of
frivolous suits brought solely to extract settlements.”
In re Supreme Specialties, Inc. Sec. Litig., 438
F.3d 256, 270 (3d Cir. 2006).
complaint alleging fraud “must state the circumstances
of the alleged fraud with sufficient particularity to place
the defendant on notice of the ‘precise misconduct with
which [it is] charged.'” Frederico v. Home
Depot, 507 F.3d 188, 200 (3d Cir. 2007) (quoting Lum
v. Bank of Am., 361 F.3d 217, 223-24 (3d Cir. 2004)).
Plaintiffs may meet this particularity requirement by
supporting their allegations “with all of the essential
factual background that would accompany the first paragraph
of any newspaper story - that is, the who, what, when, where
and how of the events at issue.” In re Rockefeller
Ctr. Properties, Inc. Sec. Litig., 311 F.3d 198, 216 (3d
Cir. 2002) (internal quotations omitted). Plaintiffs must
“inject precision and some measure of substantiation
into [the] allegations of fraud.” Lum, 361
F.3d at 224.
Court of Appeals has recognized that with respect to
allegations of corporate fraud, “plaintiffs cannot be
expected to have personal knowledge of the details of
corporate internal affairs. Thus, courts have relaxed the
[particularity] requirement when factual information is
particularly within the defendant's knowledge or
control.” Craftmatic Sec. Litig. v. Kraftsow,
890 F.2d 628, 645 (3d Cir. 1989) (internal citations
omitted). In alleging corporate fraud, “plaintiffs must
accompany their allegations with facts indicating why the
charges against defendants are not baseless and why
additional information lies exclusively within
defendants' control.” Id. at 646.
VI of the complaints alleges in conclusory terms that
defendants intentionally, willfully, and knowingly,
fraudulently represented to plaintiffs, the medical
community, the FDA, consumers, and healthcare providers that
Zostavax had been adequately tested in clinical trials and
was found to be safe and effective. Plaintiffs aver that
defendants omitted the true defective design of Zostavax that
heightened consumers' risk of injury and disease.
Plaintiffs further aver that the individuals to whom the
false representations were made were unaware of the falsity
of the representations. According to the complaints, the
false representations were made for the purpose of inducing
plaintiffs' physicians and healthcare provides to
purchase, prescribe, and administer Zostavax and to induce
plaintiffs to use Zostavax.
we are mindful that the application of Rule 9(b) is flexible
with respect to allegations of corporate fraud, plaintiffs
make no effort to inject precision into the complaints by
pleading the who, what, when, where, and how of the events at
issue. See In re Rockefeller, 311 F.3d at 216;
see also Lum, 361 F.3d at 223-24. Plaintiffs baldly
assert that defendants falsely represented to unnamed
individuals, on unspecified dates, that Zostavax was safe and
effective. They have failed to allege the date, place, time,
and source of the misrepresentations with respect to any of
the plaintiffs. They never identify the specific
misrepresentation in issue, or when or where they occurred.
Significantly, plaintiffs have not alleged why additional
information to substantiate their general allegations lies
exclusively within the control of defendants. See
Craftmatic, 890 F.2d at 645. Indeed, much of the
information is apparently in the possession of healthcare
providers or persons otherwise outside of the control of
defendants. Plaintiffs have failed to allege fraud with
sufficient particularity to put defendants on notice of the
precise misconduct with which it is charged.
Frederico, 507 F.3d at 200.
conclude that plaintiffs have not pleaded with particularity
the circumstances constituting fraud in Count VI against
Merck as required under Rule 9(b). Accordingly, the motions
of Merck to dismiss Count VI of the complaints will be
Ann Redfield, a Merck employee, was
also named as a defendant in all of these cases. The court
has found that she was fraudulently joined as a defendant and
has dismissed the complaints as to her.
All of the lawsuits except
Bentley, C.A. No. 17-1122, were removed on March 24,
2017. Bentley was removed to this court on ...