Laurino v. SmithKline Beecham Corp.
Laurino v. SmithKline Beecham Corp.
Opinion of the Court
Plaintiff is a former user of the prescription diabetes drug Avandia, who does not sue on the grounds that she has been physically injured as a result of taking Avandia; instead she solely alleges a violation of the Missouri Merchandising Practices Act (“MMPA”), which prohibits deceptive practices.
I. BACKGROUND
The Amended Complaint
118. Thus, despite notice of the dangerous propensities associated with Avandia, GSK engaged in misrepresentations, and failed to adequately advise consumers and medical providers of the risks of Avandia, including but not limited to the increased risk of heart attacks and deaths. Furthermore, the company omitted material facts concerning Avan-dia’s risk factors, even though it knew or reasonably should have known those facts. GSK also promoted Avandia’s efficacy when in fact, Avandia is no more effective than other drugs.
119. Staci Laurino purchased and used Avandia as early as 2007, which had been prescribed for her by a licensed physician, and she used it as prescribed.
120. GSK misrepresented, concealed, suppressed and/or omitted material'facts concerning Avandia and the fact that the drug increased the likelihood of cardiovascular disease.
121. Contrary to GSK’s advertising and promotion, Avandia is not more efficacious than other treatments for Type II diabetes and significantly increases the risk of heart-related diseases including heart attack and stroke.
122. The actual value of Avandia was/is significantly less than the value of Avan-dia as represented by GSK, and thus, Plaintiff and other consumers suffered ascertainable loss when they purchased Avandia.3
Plaintiff does not allege when or for how long she took Avandia or how much she paid for it; nor does she identify the prescribing physician or allege any facts regarding her medical treatment. Plaintiff also does not allege that Avandia was ineffective in treating her Type II diabetes, whether she took or would have taken another drug instead of Avandia, or the cost of such other drugs. Plaintiff seeks damages “equal to the difference between the actual value of Avandia and the value of Avandia had it been as represented by Defendant.”
II. LEGAL STANDARDS
Federal Rule of Civil Procedure 12(b)(1) allows a party to move for dismissal of any claim wherein the district court lacks subject matter jurisdiction. When considering a 12(b)(1) motion, the court “review[s] only whether the allegations on the face of the complaint, taken as true, allege sufficient facts to invoke the jurisdiction of the district court.”
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 plaintiffs “plain statement” does not possess enough substance to show that plaintiff is entitled to relief.
III. DISCUSSION
A. Standing
GSK argues that Plaintiff lacks standing to bring this action because she has not pleaded injury-in-fact or causation. After briefing on the motion to dismiss was completed, the Court of Appeals for the Third Circuit affirmed this Court’s dismissal of a similar action brought under California law. In that case, in which the plaintiff also alleged only economic harm as a user of Avandia, the Third Circuit held that is was “satisfied that [the plaintiffs] allegations are sufficient to establish Article III standing even though, as set forth herein, they are legally insufficient to provide a basis for relief.”
The purpose of the MMPA is to “preserve fundamental honesty, fair play and right dealings in public transactions.”
GSK argues that Plaintiff has not identified GSK’s alleged unlawful acts with the requisite specificity, and has not alleged that she suffered an ascertainable loss of money or property. Plaintiff relies upon Missouri’s benefit-of-the-bargain rule,
The Court must determine whether, under the facts alleged in the Amended Complaint, Plaintiff could prevail under Missouri law. If a state supreme court has not ruled on a question of state law (as the Missouri Supreme Court, has not on the issues in dispute here), the federal court sitting in diversity “must consider the pronouncements of the lower state courts, as well as federal appeals and district court cases interpreting state law.”
Having considered thoroughly the opinion in Plubell, the Court concludes that it is of limited value to the Court in determining Missouri law on ascertainable loss, as the appellate court expressly stated that did not rule on whether the plaintiffs could prove such loss. In contrast, several recent federal court opinions interpreting Missouri law have concluded that similar claims failed to state an ascertainable loss.
IV. CONCLUSION
As Plaintiff has failed to state a claim under Missouri law the Amended Complaint will be dismissed. Plaintiff filed the Amended Complaint after this Court had dismissed several other similar lawsuits, and therefore Plaintiff was on notice of what was required to pursue her claims. The Amended Complaint nonetheless fails to state a cause of action, and the Court concludes that to allow any further amendment would be inequitable and likely futile.
ORDER
AND NOW, this 16th day of April 2015, upon consideration of Defendant’s Motion to Dismiss and the opposition thereto, and for the reasons stated in the Court’s memorandum opinion, it is hereby ORDERED that the Motion is GRANTED. The Amended Complaint is DISMISSED WITH PREJUDICE. The Clerk is directed to CLOSE the case.
It is so ORDERED.
. V.A.M.S. § 407.020.1.
. Pursuant to an agreement between the parties, Plaintiff filed the Amended Complaint after this Court dismissed with prejudice similar lawsuits filed under the laws of California, New Jersey, New York, and Pennsylvania. Def.'s Brief at 2.
. Am. Compl. lflf 118-22.
. Am. Compl. ¶ 134.
. Licata v. U.S. Postal Serv., 33 F.3d 259, 260 (3d Cir. 1994).
. NCAA v. Governor of N.J., 730 F.3d 208, 218 (3d Cir. 2013) (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009)).
.Blunt v. Lower Merion School Dist., 767 F.3d 247, 278 (3d Cir. 2014) (internal quotation marks, brackets, and citations omitted).
. Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006).
. In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012).
. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
. ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994); Fay v. Muhlenberg Coll., No. 07-4516, 2008 WL 205227, at *2 (E.D.Pa. Jan. 24, 2008).
. Twombly, 550 U.S. at 555, 564, 127 S.Ct. 1955.
. Id. at 570, 127 S.Ct. 1955.
. Id. at 562, 127 S.Ct. 1955.
. Id. (citing McGregor v. Indus. Excess Landfill, Inc., 856 F.2d 39, 42-43 (6th Cir. 1988)).
. In re: Avandia Mktg., Sales Pracs., and Prods. Liab. Litig., 564 Fed.Appx. 672, 673 at n. 4 (3d Cir. 2014).
. Accord Lexmark Int’l, Inc. v. Static Control Components, Inc., - U.S. -, 134 S.Ct. 1377, 1390, 188 L.Ed.2d 392 (2014) (“A consumer who is hoodwinked into purchasing a disappointing product may well have an injury-in-fact cognizable under Article III [even if]
. Zmuda v. Chesterfield Valley Power Sports, Inc., 267 S.W.3d 712, 716 (Mo.Ct.App. 2008).
. V.A.M.S. § 407.020.1.
. V.A.M.S. § 407.025.1. GSK argues that a number of courts and legislatures in other states have determined that similar consumer protection statutes do not apply to prescription drugs. Def.'s Brief at 11 & n. 6. GSK acknowledges that there is no precedent from the Missouri Supreme Court on the question, but beyond that there is no suggestion in any cases citing the statute (including cases discussed infra concerning prescription drugs) that Missouri law excludes such products. It is not for this Court to make such a policy determination in the absence of any guiding Missouri authority.
. Plff.’s Brief at 6.
. Polk v. KV Pharm. Co., No. 09-588, 2011 WL 6257466, *5 (E.D.Mo. Dec. 15, 2011) (citing Sunset Pools of St. Louis, Inc. v. Schaefer, 869 S.W.2d 883, 886 (Mo.Ct.App. 1994)).
. State Farm Mut. Auto. Ins. Co. v. Coviello, 233 F.3d 710, 713 (3d Cir. 2000) (citations omitted).
. 289 S.W.3d 707 (Mo.Ct.App. 2009).
. Id. at 711 (internal quotation marks omitted).
. Mat 713.
. Id. at 714.
. Id.
. Id.
. Id. at 715. Although only the class certification order was before the appellate court, the trial court had denied a motion to dismiss and a motion for summary judgment. Id. at 711.
. Mikhlin v. Johnson & Johnson, No. 14-881, 2014 WL 6084004 (E.D.Mo. Nov.. 13, 2014); In re Bisphenol-A (BPA) Polycarbonate Plastic Prods. Liab. Litig., No. 08-1967, 2011 WL 6740338, *3 (W.D.Mo. Dec. 22, 2011). Compare Carr-Davis v. Bristol-Myers Squibb Co., No. 07-1098, 2009 WL 5206122, *8 (D.N.J. 2009) (holding that the plaintiff alleged ascertainable loss including the purchase of the drug and additional out-of-pocket costs, as well as compensation for the pain and suffering and death of the patient who took the drug).
. In re Bisphenol-A (BPA) Polycarbonate Plastic Prods. Liab. Litig., 687 F.Supp.2d 897, 912 (W.D.Mo. 2009).
. Mikhlin, 2014 WL 6084004 at *3 (E.D.Mo. Nov. 13, 2014) (ruling in a suit brought by users of baby powder who contended that health risks of the product were concealed, but who suffered no physical injuries).
. Although Plaintiff requested leave to amend in her opposition to the motion to dismiss, she did not attach a proposed amended complaint, see Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); nor did she explain what would be alleged in such an amendment.
. The Court finds it unnecessary to reach GSK’s alternative argument that Plaintiff failed to allege misrepresentations made to her.
Reference
- Full Case Name
- In re AVANDIA MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION. This Document Applies to: Staci Laurino, on behalf of herself and all others similarly situated v. SmithKline Beecham Corporation d/b/a GlaxoSmithKline
- Cited By
- 1 case
- Status
- Published