Jensen v. Pfizer, Inc.

Filing 42

MEMORANDUM AND ORDER denying 14 Defendant's Motion to Dismiss. Ordered by Chief Judge Joseph F. Bataillon. (SMS, ) [Transferred from Nebraska on 10/14/2009.]

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA C A R O L A. JENSEN, Individually and as P e rs o n a l Representative of the Estate of J o a n Bodnar, Deceased, Plaintiff, v. P F IZ E R , INC., a Corporation, Defendant. ) ) ) ) ) ) ) ) ) ) ) )

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M E M O R A N D U M AND ORDER

T h is matter is before the court on the defendant's motion to dismiss, Filing No. 14. T h is is a products liability personal injury and wrongful death action that was removed from s ta te court. See Filing No. 1, Notice of Removal, Ex. A, Complaint. Jurisdiction is premised o n diversity of citizenship. 28 U.S.C. § 1331. In her complaint, the plaintiff, as personal representative for the Estate of Jan Bodnar, a s s e rts state law claims for negligence, strict products liability, fraudulent misrepresentation, fra u d u le n t concealment, and negligent misrepresentation or concealment. She premises th e se claims on the defendant's "design, manufacture, testing, marketing, advertising, p ro m o tio n , and/or distribution of the unsafe prescription drug varenicline, which is sold by d e fe n d a n t under the trade name Chantix (Chantix) as an aid to quit smoking." Filing No. 1, E x. A, Complaint at 1. She alleges that the decedent committed suicide after taking the drug. Id . at 2. The defendant contends that the complaint fails to state a claim for relief and the p la i n t if f failed to plead fraud with sufficient particularity under Fed. R. Civ. P. 9(b). The d e fe n d a n t also contends that the plaintiff cannot bring a wrongful death claim in her in d iv id u a l capacity under Nebraska law.

U n d e r the Federal Rules, a complaint must contain "a short and plain statement of th e claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The rules r e q u ir e a "`showing,' rather than a blanket assertion, of entitlement to relief." Bell Atlantic C o r p . v. Twombly, 550 U.S. 556 n.3. (2007) (quoting Fed. R. Civ. P. 8(a)(2)). "Specific facts a re not necessary; the statement need only `give the defendant fair notice of what the . . . c la im is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, --, 127 S. C t. 2197, 2200 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. at 555). In order to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the plaintiff's obligation to provide the g ro u n d s for his entitlement to relief necessitates that the complaint contain "more than labels a n d conclusions, and a formulaic recitation of the elements of a cause of action will not do." B e ll Atlantic, 550 U.S. at 555. T h e factual allegations of a complaint are assumed true and construed in favor of the p l a i n t if f, "even if it strikes a savvy judge that actual proof of those facts is improbable and `th a t a recovery is very remote and unlikely.'" Id. (quoting Scheuer v. Rhodes, 416 U.S. 232, 2 3 6 (1974)). "On the assumption that all the allegations in the complaint are true (even if d o u b tf u l in fact)," the allegations in the complaint must "raise a right to relief above the s p e c u la tiv e level." Bell Atlantic, 550 U.S. at 555-56. In other words, the complaint must p le a d "enough facts to state a claim for relief that is plausible on its face." Id. at 547. Thus, th e court must find "enough factual matter (taken as true) to suggest" that "discovery will re v e a l evidence" of the elements of the claim. Id. at 558, 556; Dura Pharms., Inc. v. Broudo, 5 4 4 U.S. 336, 347 (2005) (explaining that something beyond a faint hope that the discovery p ro c e s s might lead eventually to some plausible cause of action must be alleged). W h e n th e allegations in a complaint, however true, could not raise a claim of entitlement to relief,

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th e complaint should be dismissed for failure to set a claim under Fed. R. Civ. P. 12(b)(6). B e ll Atlantic, 550 U.S. at 558. Under the Federal Rules, a party alleging fraud "must state with particularity the c irc u m s ta n ce s constituting fraud." Fed. R. Civ. P. 9(b). The rule is interpreted "`in harmony w ith the principles of notice pleading,' and to satisfy it, the complaint must allege `such m a tte rs as the time, place, and contents of false representations, as well as the identity of t h e person making the misrepresentation and what was obtained or given up thereby.'" D r o b n a k v. Andersen Corp., 561 F.3d 778, 783 (quoting Schaller Tel. Co. v. Golden Sky S y s ., Inc., 298 F.3d 736, 746 (8th Cir. 2002)). Essentially, the complaint "must plead the `w h o , what, where, when, and how' of the alleged fraud.'" Drobnak, 561 F.3d at 783 (quoting U n ite d States ex rel. Joshi v. St. Luke's Hosp., 441 F.3d 552, 556 (8th Cir. 2005)). Because th is higher degree of notice is intended to enable the defendant to respond specifically and q u ic k ly to potentially damaging allegations, conclusory allegations that a defendant's conduct w a s fraudulent and deceptive are not sufficient to satisfy the rule. Drobnak, 561 F.3d at 783. A ll e g a ti o n s pleaded on information and belief usually do not meet Rule 9(b)'s particularity re q u ire m e n t, except "when the facts constituting the fraud are peculiarly within the opposing p a r ty's knowledge." Id. at 783-84 (stating that the rule is satisfied if the allegations are a c c o m p a n ie d by a statement of facts on which the belief is founded). A p p lyin g those standards, the court finds that the plaintiff's complaint states a claim fo r relief. W ith respect to the alleged fraudulent misrepresentations, the plaintiff alleges that th e defendant represented through its labeling, advertising, marketing materials, detail p e rs o n s , seminar publications, notice letters, and regulatory submissions that the product h a d been tested and found to be safe and was safer and more efficacious than alternative

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m e d ic a tio n s . Id. at 15. She alleges that defendant knew the representations to be false and m a d e them with intent to deceive consumers and the medical community. Id. She also a lle g e s that the defendant concealed adverse information about the drug when it knew or h a d reason to know that the drug was unreasonably dangerous. Id. at 16. These allegations a re sufficient to put defendant on notice of the claims against it. Under Nebraska law, a wrongful death action may be brought only in the name of the p e rs o n a l representative on behalf of the decedent's next of kin for their losses arising from th e decedent's death including loss of income and present and future loss of society and c o m p a n io n s h ip . See Neb. Rev. Stat. § 30-810; Spradlin v. Dairyland Ins. Co., 641 N.W .2 d 6 3 4 , 638 (Neb. 2002) (stating that the plain language of § 30-810 does not allow for the a s s ig n m e n t of a wrongful death cause of action). In her response to the defendant's motion, th e plaintiff states that the action is brought in her capacity as personal representative. Filing N o . 33, Brief at 89. The court understands the complaint to assert only claims brought as a personal representative of the estate, and not claims by the plaintiff individually. To the e x te n t that the caption of the case suggests otherwise, it will be disregarded. IT IS ORDERED: 1 . Defendant's motion to dismiss (Filing No. 14) is denied; 2 . Defendant shall answer or otherwise respond to plaintiff's complaint within 14 days o f the date of this order. DATED this 2 nd day of July, 2009. B Y THE COURT:

s / Joseph F. Bataillon Chief United States District Judge
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