Waldo v. Eli Lilly & Company
Filing
35
ORDER signed by Judge Lawrence K. Karlton on 10/7/2013 ORDERING 18 Plaintiff' first, ninth, twelfth, and fourteenth causes of action are DISMISSED with prejudice. Plaintiff's fourth, tenth, eleventh, thirteenth, fifteenth, and sixteenth causes of action are DISMISSED without prejudice. The remainder of defendant's motion to dismiss is DENIED. Plaintiff is GRANTED leave to file an amended complaint no more than 21 days after entry of this order. (Reader, L)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ANGELA WALDO, individually
and as Natural Parent of
D.P.,
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Plaintiff,
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No.
CIV. S-13-0789 LKK/EFB
ORDER
v.
ELI LILLY & COMPANY,
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Defendant.
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Plaintiff Angela Waldo, in her individual capacity and on
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behalf of her son, D.P., sues defendant Eli Lilly and Company,
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alleging that D.P. was born with various heart defects as a
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result of Waldo’s ingestion of Prozac during pregnancy.
Eli Lilly moves to dismiss under Federal Rule of Civil
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Procedure 12(b)(6). For the reasons set forth below, the motion
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will be granted in part and denied in part.
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I.
BACKGROUND
The following allegations are taken from the operative
complaint. (ECF No. 1.)
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In 2001, Waldo was prescribed and took Prozac for
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depression. She ended her usage when she discovered that she was
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three months pregnant, because she did not want to harm her
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fetus. (Complaint ¶ 20, ECF No. 1.)
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On March 1, 2002, after 35 weeks’ gestation, Waldo gave
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birth to D.P. in Folsom, California. (Id. ¶ 21.) D.P. was
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diagnosed with a hole in the bottom of the heart chamber, a heart
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murmur, and a ventricular septal defect. (Id. ¶ 22.)
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On February 26, 2007, D.P. underwent surgery to repair the
hole in his heart chamber. (Id. ¶ 24.)
In January 2011, D.P was diagnosed with leaking of the
aortic valve. (Id. ¶ 23.)
Due to these birth defects, D.P. regularly visits a
cardiologist and other health care specialists. (Id. ¶ 25.)
Waldo alleges that Prozac is a selective serotonin reuptake
16
inhibitor (“SSRI”) marketed primarily as an antidepressant
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medication. Eli Lilly designed, manufactures, and markets Prozac.
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(Complaint ¶¶ 14, 16.)
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Prozac can cause serious birth defects when ingested during
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pregnancy, including, but not limited to, heart defects, limb
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deformations, spina bifida, cleft palates, and persistent
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pulmonary hypertension of the newborn. (Id. ¶ 26.)
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Eli Lilly did not test Prozac for safety or efficacy in
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pregnant women. In its promotional activities, Eli Lilly did not
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discourage pregnant women from using Prozac. Through a variety of
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methods, Eli Lilly encouraged doctors to prescribe Prozac to
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women of childbearing age, women who were trying to conceive, and
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to pregnant women. (Id. ¶ 29.)
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Eli Lilly did not add a warning regarding cardiovascular
birth defects to the Prozac label until 2011. (Id. ¶ 36.)
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Waldo alleges, on information and belief, that Eli Lilly
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knew, or should have known, about the adverse side effects of
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Prozac as early as 1987, but failed to adequately warn consumers,
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physicians, and the U.S. Food and Drug Administration (“FDA”).
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(Id. ¶ 27.) Waldo further alleges, on information and belief,
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that Eli Lilly was on notice regarding numerous studies that
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demonstrated significant harm to fetuses when an SSRI was
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ingested during pregnancy, including increased mortality and
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cardiac malformations. (Id. ¶ 28.)
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Waldo sues under California law, pleading sixteen causes of
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action that sound in strict liability, negligence, warranty,
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fraud, and unjust enrichment. Eli Lilly moves to dismiss the
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complaint in its entirety.
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II.
STANDARD
A dismissal motion under Federal Rule of Civil
18
Procedure 12(b)(6)1 challenges a complaint’s compliance with the
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federal pleading requirements. Under Rule 8(a)(2), a pleading
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must contain a “short and plain statement of the claim showing
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that the pleader is entitled to relief.”
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the defendant “‘fair notice of what the . . . claim is and the
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grounds upon which it rests.’” Bell Atlantic v. Twombly, 550 U.S.
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544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
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(1957)).
The complaint must give
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Hereinafter, the term “Rule” refers to the applicable
Federal Rule of Civil Procedure.
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To meet this requirement, the complaint must be supported by
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factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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Moreover, this court “must accept as true all of the factual
4
allegations contained in the complaint.” Erickson v. Pardus, 551
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U.S. 89, 94 (2007).2
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“While legal conclusions can provide the framework of a
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complaint,” neither legal conclusions nor conclusory statements
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are themselves sufficient, and such statements are not entitled
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to a presumption of truth. Iqbal, 556 U.S. at 679. Iqbal and
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Twombly therefore prescribe a two-step process for evaluation of
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motions to dismiss. The court first identifies the non-conclusory
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factual allegations, and then determines whether these
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allegations, taken as true and construed in the light most
14
favorable to the plaintiff, “plausibly give rise to an
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entitlement to relief.” Iqbal, 556 U.S. at 679.
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“Plausibility,” as it is used in Twombly and Iqbal, does not
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refer to the likelihood that a pleader will succeed in proving
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the allegations. Instead, it refers to whether the non-conclusory
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factual allegations, when assumed to be true, “allow[] the court
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to draw the reasonable inference that the defendant is liable for
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the misconduct alleged.” Iqbal, 556 U.S. at 678.
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plausibility standard is not akin to a ‘probability requirement,’
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but it asks for more than a sheer possibility that a defendant
“The
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Citing Twombly, 550 U.S. at 555-56, Neitzke v. Williams,
490 U.S. 319, 327 (1989) (“What Rule 12(b)(6) does not
countenance are dismissals based on a judge’s disbelief of a
complaint’s factual allegations”), and Scheuer v. Rhodes, 416
U.S. 232, 236 (1974) (“[I]t may appear on the face of the
pleadings that a recovery is very remote and unlikely but that is
not the test” under Rule 12(b)(6)).
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has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 557).3 A
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complaint may fail to show a right to relief either by lacking a
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cognizable legal theory or by lacking sufficient facts alleged
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under a cognizable legal theory. Balistreri v. Pacifica Police
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Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
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III.
ANALYSIS
When the court sits in diversity, it must ordinarily apply
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the substantive law of the forum in which it is located. Erie
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R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). California
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substantive law therefore governs.
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A. Design Defect – Strict Liability
Waldo’s first cause of action alleges strict liability under
a design defect theory.
Eli Lilly moves to dismiss, contending that California does
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not recognize strict liability for defects in the design of
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prescription drugs.
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Twombly imposed an apparently new “plausibility” gloss on
the previously well-known Rule 8(a) standard, and retired the
long-established “no set of facts” standard of Conley v. Gibson,
355 U.S. 41 (1957), although it did not overrule that case
outright. See Moss v. U.S. Secret Service, 572 F.3d 962, 968 (9th
Cir. 2009) (the Twombly Court “cautioned that it was not outright
overruling Conley[,]” although it was retiring the “no set of
facts” language from Conley). The Ninth Circuit has acknowledged
the difficulty of applying the resulting standard, given the
“perplexing” mix of standards the Supreme Court has applied in
recent cases. See Starr v. Baca, 652 F.3d 1202, 1215 (9th Cir.
2011) (comparing the Court’s application of the “original, more
lenient version of Rule 8(a)” in Swierkiewicz v. Sorema N.A., 534
U.S. 506 (2002) and Erickson v. Pardus, 551 U.S. 89 (2007) (per
curiam), with the seemingly “higher pleading standard” in Dura
Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336 (2005), Twombly and
Iqbal), cert. denied, 132 S. Ct. 2101 (2012). See also Cook v.
Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (applying the “no set
of facts” standard to a Section 1983 case).
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The California Supreme Court has held that a product is
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defectively designed “if it failed to perform as safely as an
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ordinary consumer would expect when used as intended or
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reasonably foreseeable, or if, on balance, the risk of danger
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inherent in the challenged design outweighs the benefits of the
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design.” Brown v. Superior Court, 44 Cal. 3d 1049, 1057 (1988)
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(citing Barker v. Lull Eng’g Co., 20 Cal. 3d 413, 430 (1978)).
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But that Court has declined to extend the defective design
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standard to cases involving prescription drugs. See Brown, 44
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Cal. 3d at 1061 (“[A] drug manufacturer’s liability for a
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defectively designed drug should not be measured by the standards
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of strict liability[.]”); accord Anderson v. Owens-Corning
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Fiberglas Corp., 53 Cal. 3d 987, 995 (1991) (“[A] manufacturer of
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prescription drugs is exempt from strict liability for defects in
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design[.]”). Manufacturer liability for a design defect may lie
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only on a negligence theory. Brown, 44 Cal. 3d at 1065.
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The cases cited by Waldo in opposition are inapt, as they
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address strict liability for failure to warn and/or for
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manufacturing defects, rather than for design defects.
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As California law does not recognize strict liability for
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pharmaceutical manufacturers under a design defect theory,
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Waldo’s first cause of action must be dismissed with prejudice.
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B. Manufacturing Defect – Strict Liability
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Waldo’s second cause of action alleges strict liability
under a manufacturing defect theory.
“[A] defective product is one that differs from the
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manufacturer’s intended result or from other ostensibly identical
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units of the same product line.” Barker, 20 Cal. 3d at 429. Under
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an alternate formulation of this test, “[a] manufacturing defect
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exists when an item is produced in a substandard condition.”
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McCabe v. American Honda Motor Co., 100 Cal. App. 4th 1111, 1120
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(2002) (citing Barker).
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Eli Lilly moves to dismiss the cause of action as
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inadequately pled, contending that Waldo fails to identify or
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explain the nature of the alleged defect. In support, it cites
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Lucas v. City of Visalia, 726 F. Supp. 2d 1149 (E.D. Cal. 2011)
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(Ishii, J.), in which a manufacturing defect claim against a
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taser manufacturer was dismissed under Rule 12(b)(6) because the
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plaintiff failed to “identify/explain how the taser weapon either
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deviated from Taser Inc.’s intended result/design or how the
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taser weapon deviated from other seemingly identical taser
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models.” Id. at 1155. Judge Ishii determined that “[a] bare
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allegation that the taser weapon had ‘a manufacturing defect’ is
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an insufficient legal conclusion.” Id.
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Waldo has alleged that “[t]he subject product was not made
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in accordance with Defendant[’s] specifications or performance
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standards.” (Complaint ¶ 58(c).)
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This allegation is sufficiently-pled. It sets forth a
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factual proposition - that the drug was not made in accordance
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with Eli Lilly’s specification – from which one can “draw the
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reasonable inference that the defendant is liable for the
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misconduct alleged.” Iqbal, 556 U.S. at 678. To go further and
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require Waldo to identify, at the pleadings stage, the defect in
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a pharmaceutical she ingested more than a decade ago would be to
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effectively absolve Eli Lilly of any potential liability at the
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pleadings stage. Absent publicly-available information that Eli
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Lilly manufactured defective Prozac during the relevant time
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period, there is no reasonable way that Waldo could obtain
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sufficient information, pre-discovery, to identify or explain the
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nature of the alleged defect. (Even if she retained some of the
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tablets she had been prescribed, their chemical composition may
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have changed over time; most pharmaceuticals come with a
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manufacturer’s expiration date.) Years-old pharmaceuticals are
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quite different from products, such as lawnmowers or automobiles,
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which are both durable and readily compared to other instances of
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the product line.
Federal pleading standards set forth minimum requirements
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for “giv[ing] the defendant fair notice of what the plaintiff’s
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claim is and the grounds upon which it rests.” Conley, 355 U.S.
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at 47. To interpret Rule 8(a) so mechanically as to create
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insurmountable barriers to manufacturers’ liability at the
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pleadings stage would mean a return, in some measure, to common-
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law pleading standards “better calculated to vindicate highly
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technical rules of pleading than . . . to dispense justice.” 5
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Charles Alan Wright & Arthur Miller, Federal Practice &
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Procedure: Civil § 1202 (3d ed. 2013). This, the court declines
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to do.
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Eli Lilly’s motion to dismiss Waldo’s second cause of action
is therefore denied.
C. Failure to Warn – Strict Liability
Waldo’s third cause of action alleges strict liability for
failure to warn.
Pharmaceutical manufacturers may be held strictly liable for
failing to warn of known or reasonably scientifically knowable
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risks. Carlin v. Superior Court, 13 Cal. 4th 1104, 1110 (1996).
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“The rules of strict liability require a plaintiff to prove only
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that the defendant did not adequately warn of a particular risk
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that was known or knowable in light of the generally recognized
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and prevailing best scientific and medical knowledge available at
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the time of manufacture and distribution.” Id. at 1112. “The
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manufacturer is held to the knowledge and skill of an expert in
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the field; it is obliged to keep abreast of any scientific
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discoveries and is presumed to know the results of all such
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advances.” Id. at 1113 n.3. The manufacturer’s knowledge is
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measured at the time of distribution, rather than on the basis of
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subsequent scientific developments. Id. The duty to warn runs to
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the physician, not the patient. Id. at 1116.
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Eli Lilly moves to dismiss on the grounds that the cause of
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action is insufficiently-pled; specifically, that Waldo failed to
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allege that Eli Lilly knew (or should have known) of Prozac’s
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risks at the time it distributed the doses that she ingested.
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Waldo alleges the existence of studies dating from 2007 and
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afterwards demonstrating an increased risk of birth defects from
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consumption of SSRIs during pregnancy. (Complaint ¶¶ 32, 33-35.)
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Waldo also alleges that the manufacturers of Paxil, another SSRI,
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began including warnings of birth defects with the drug in 2005.
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(Complaint ¶ 30.) In considering Waldo’s failure to warn theory,
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these allegations are irrelevant, as the events described
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occurred after the manufacture of the Prozac which Waldo
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ingested. “[T]he manufacturer is liable if it failed to give
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warning of dangers that were known to the scientific community at
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the time it manufactured or distributed the product.” Carlin, 13
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Cal. 4th at 1113. The adequacy of a warning is generally a
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question of fact for the jury. Jackson v. Deft, Inc., 223 Cal.
3
App. 3d 1305, 1313 (1990) (cited for this point in Judicial
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Council of California Civil Jury Instructions, CACI No. 1205
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(2013)).
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The cause of action, then, rests upon these allegations:
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1. “Upon information and belief, Eli Lilly knew or should have
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known about the adverse side effects of Prozac as early as
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1987, but failed to adequately warn the consumer public,
10
physicians, and the Food and Drug Administration (FDA) of
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these life threatening birth defects.” (Complaint ¶ 27.)
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2. “Defendant knew of the dangerous birth defects associated
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with Prozac use from the preclinical studies . . .
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confirming these risks. Defendant took no action to
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adequately warn [sic] or remedy the risks, but instead
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concealed, suppressed, and failed to disclose the dangers.”
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(Complaint ¶ 41.)
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3. “Upon information and belief, Eli Lilly was on notice of
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numerous studies which demonstrated significant harm to
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fetuses when an SSRI was administered during pregnancy,
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including increased mortality and cardiac malformations.”
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(Id. ¶ 28.)
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4. “Further, many observational studies have been conducted
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showing a statistically significant increase in birth
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defects associated with the use of Prozac.” (Id. ¶ 31.)
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As pled, the third and fourth allegations are inadequate to
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support a cause of action for failure to warn, as they do not
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identify the time frame in which Eli Lilly was on notice as to
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the relevant studies. This leaves the first and second
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allegations.
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Neither the Supreme Court nor the Ninth Circuit has issued a
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definitive ruling on whether, and under what circumstances,
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allegations may properly be pled on information and belief under
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Rule 8, as interpreted by Iqbal and Twombly. Nevertheless, a
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recent Ninth Circuit opinion, Blantz v. Cal. Dep’t of Corr. and
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Rehab., __ F.3d __, 2013 WL 4105530, 2013 U.S. App. LEXIS 16940
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(9th Cir. Aug. 15, 2013) provides some guidance on the subject.
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Blantz concerns a wrongful termination action against the
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California Department of Corrections and Rehabilitation (“CDCR”).
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The Ninth Circuit panel addressed, inter alia, whether plaintiff
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could properly proceed against Terry Hill, the Chief Medical
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Officer overseeing CDCR’s medical care system. The only
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allegations concerning Hill were that, “on information and
16
belief,” he “direct[ed]” the other defendants to take the
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challenged actions. The panel dismissed the claims against Hill,
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not because these allegations were pled on information and
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belief, but because they were conclusory allegations unsupported
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by further factual assertions.
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From Blantz, one can reasonably infer that district courts
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may properly consider allegations pled on information and belief
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in determining whether claims have been adequately pled under
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Rule 8. That an allegation is pled on information and belief is
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neither dispositive nor particularly germane. Per Iqbal and
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Twombly, the proper inquiry remains whether the plaintiff has
27
presented a non-conclusory factual allegation. If so, the court
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may assume the allegation’s “veracity and then determine whether
11
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[it] plausibly give[s] rise to an entitlement to relief.” Iqbal,
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556 U.S. at 679. This approach is supported by the text of Rule
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11(b):
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By presenting to the court a pleading . . .
an attorney or unrepresented party certifies
that to the best of the person’s knowledge,
information, and belief, formed after an
inquiry
reasonable
under
the
circumstances: . . . the factual contentions
have evidentiary support or, if specifically
so identified, will likely have evidentiary
support after a reasonable opportunity for
further investigation or discovery . . . .
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As the court may rely on counsel’s certification as to the
11
likelihood of evidentiary support for any allegations pled on
12
information and belief, it appears reasonable to grant such
13
allegations the benefit of the doubt – so long as they are non-
14
conclusory.
15
Waldo, then, has pled that Eli Lilly knew, or should have
16
known, by 1987 about the risk of birth defects from Prozac use
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based on preclinical studies, but failed to adequately warn of
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these risks.
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This pleading is adequate to support a claim for strict
20
liability based on failure to warn. Eli Lilly’s motion to dismiss
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this cause of action is therefore denied.
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D. Negligence
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Waldo’s fourth cause of action alleges negligence.
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Under California law, the elements of a cause of action for
25
negligence are “‘(a) a legal duty to use due care; (b) a breach
26
of such legal duty; [and] (c) the breach as the proximate or
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legal cause of the resulting injury.’” Ladd v. Cnty. of San
28
12
1
Mateo, 12 Cal. 4th 913, 917 (1996) (quoting Evan F. v. Hughson
2
United Methodist Church, 8 Cal. App. 4th 828, 834 (1992)).
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Waldo adequately pleads the first two elements. Eli Lilly’s
4
duty is alleged as follows: “Defendant were [sic] under a duty to
5
exercise reasonable care in the design, manufacture, testing,
6
processing, marketing, advertising, labeling, packaging,
7
supplying, distribution, and sale of Prozac.” (Complaint ¶ 67.)
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Waldo also pleads numerous breaches of this duty:
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“Failure to adequately test the product prior to placing
the drug Prozac on the market”;
“Failure to conduct adequate pre-clinical testing and
12
post-marketing surveillance to determine the safety of
13
Prozac during pregnancy”;
14
“Failure to advise the medical and scientific
15
communities, including Plaintiff's prescribing physician,
16
of the potential for severe and disabling side effects
17
and birth defects”; and
18
“Failure to provide adequate post-marketing warnings or
19
instructions after Defendant knew, or should have known,
20
of the significant risks of severe and disabling side
21
effects and birth defects.” (Complaint ¶ 70.)
22
Contrary to Eli Lilly’s assertions, these are not conclusory
23
allegations of the type forbidden by Iqbal and Twombly. At the
24
pleadings stage, Waldo need not, e.g., detail with specificity
25
what tests Eli Lilly should have undertaken or what information
26
it should have provided physicians regarding product risks.
27
However, Waldo fails to adequately pled causation. She
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avers, “As a direct and proximate result of Defendant’ [sic]
13
1
negligence, D.P. and Angela Waldo suffered severe and permanent
2
physical and emotional injuries including, but not limited to,
3
VSD.” (Complaint ¶ 74.) This statement is a conclusory
4
allegation. Waldo has failed to plead factual allegations
5
supporting the allegation that Eli Lilly’s breach of its duty to
6
her was the cause of D.P.’s injuries.
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10
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12
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Accordingly, this cause of action will be dismissed, though
Waldo will be granted leave to amend.
E. Negligence – Failure to Warn;
Breach of Warranty – Express Warranty;
Breach of Warranty – Implied Warranty of Fitness for
a Particular Purpose;
Breach of Warranty – Implied Warranty of
Merchantability
Waldo’s fifth cause of action alleges negligence under a
14
failure to warn theory; her sixth cause of action alleges breach
15
of an express warranty; her seventh cause of action alleges
16
breach of the implied warranty of fitness for a particular
17
purpose; and her eighth cause of action alleges breach of the
18
implied warranty of merchantability.
19
Eli Lilly moves for dismissal of these claims on the grounds
20
that Waldo fails to allege that Eli Lilly knew (or should have
21
known) of Prozac’s risks at the time it distributed the doses
22
that she ingested.
23
This argument fails for the reasons outlined above in the
24
discussion, supra, of Waldo’s third cause of action, for strict
25
liability under a failure to warn theory. Waldo has adequately
26
alleged Eli Lilly’s knowledge.
27
28
Eli Lilly’s motion to dismiss these causes of action is
therefore denied.
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1
F. Punitive Damages
2
Waldo’s ninth cause of action alleges punitive damages.
3
Under California law, punitive damages are a remedy, not an
4
independent cause of action. See Cal. Civ. Code § 3294(a) (“In an
5
action for the breach of an obligation not arising from contract,
6
where it is proven by clear and convincing evidence that the
7
defendant has been guilty of oppression, fraud, or malice, the
8
plaintiff, in addition to the actual damages, may recover damages
9
for the sake of example and by way of punishing the defendant.”).
10
Accordingly, while Eli Lilly has not moved to dismiss this
11
cause of action, the court will do so sua sponte, with prejudice.
12
See Omar v. Sea–Land Service, Inc., 813 F.2d 986, 991 (9th Cir.
13
1987) (“A trial court may dismiss a claim sua sponte under
14
Fed.R.Civ.P. 12(b)(6).”).
15
G. Fraud
16
Waldo’s tenth cause of action alleges fraud.
17
Under California law, “[t]he elements of fraud, which gives
18
rise to the tort action for deceit, are (a) misrepresentation
19
(false representation, concealment, or nondisclosure); (b)
20
knowledge of falsity (or ‘scienter’); (c) intent to defraud,
21
i.e., to induce reliance; (d) justifiable reliance; and (e)
22
resulting damage.” Small v. Fritz Companies, Inc., 30 Cal. 4th
23
167, 173 (2003) (quoting Lazar v. Superior Court, 12 Cal. 4th
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631, 638 (1996)).
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26
27
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Eli Lilly argues that this claim should be dismissed for
failure to meet the particularity requirement of Rule 9(b).
Rule 9(b) provides: “In alleging fraud or mistake, a party
must state with particularity the circumstances constituting
15
1
fraud or mistake. Malice, intent, knowledge, and other conditions
2
of a person’s mind may be alleged generally.” In order to plead
3
fraud with particularity, the complaint must allege the time,
4
place, and content of the fraudulent representation; conclusory
5
allegations do not suffice. Moore v. Kayport Package Express,
6
Inc., 885 F.2d 531, 540 (9th Cir.1989). Claims made on
7
information and belief are not usually sufficiently particular,
8
unless they accompany a statement of facts on which the belief is
9
founded. Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir. 1993).
10
Waldo has failed to plead Eli Lilly’s alleged fraud with
11
particularity, as she does not identify the specific fraudulent
12
representations at issue, the medium through which they were
13
conveyed, and whom they were directed to. Allegations such as the
14
following are simply too vague to meet Rule 9(b)’s standards:
15
21
[A]ctions by Defendant include, but are not
limited
to
‘Ghostwriting’
letters
and
articles for the signature of key opinion
leaders to be placed in respected medical
journals,
suppressing
information
about
Prozac’s adverse effects, promoting positive
study outcomes while avoiding negative ones,
and communicating marketing messages designed
to get health care providers to prescribe
Prozac
to
patients
such
as
Plaintiff.
(Complaint ¶ 38.)
22
Waldo also fails to plead facts to support the following
16
17
18
19
20
23
statement: “Upon information and belief, Eli Lilly knew or should
24
have known about the adverse side effects of Prozac as early as
25
1987, but failed to adequately warn the consumer public,
26
physicians, and the Food and Drug Administration (FDA) of these
27
life threatening birth defects.” (Complaint ¶ 27.)
28
16
1
As the complaint lacks specific facts demonstrating the
2
alleged fraud, this cause of action must be dismissed, though
3
Waldo will be granted leave to amend her complaint.
4
H. Negligent Misrepresentation
5
6
Waldo’s eleventh cause of action alleges negligent
misrepresentation.
7
A negligent misrepresentation is “[t]he assertion, as a
8
fact, of that which is not true, by one who has no reasonable
9
ground for believing it to be true.” Cal. Civ. Code § 1710.
10
Negligent misrepresentation differs from fraud in that it “allows
11
recovery in the absence of scienter or intent to defraud.” Los
12
Angeles Unified School Dist. v. Great Am. Ins. Co., 49 Cal. 4th
13
739, 750 n. 5 (2010).
14
As it did with Waldo’s fraud claim, Eli Lilly moves to
15
dismiss for failure to meet the particularity requirement of Rule
16
9(b).
17
18
19
Eli Lilly is correct. The complaint does not delineate the
misrepresentations at issue with sufficient particularity.
Accordingly, this cause of action must be dismissed, though
20
Waldo will be granted leave to amend.
21
I. Negligence Per Se
22
Waldo’s twelfth cause of action alleges negligence per se.
23
Eli Lilly seeks to dismiss on the basis that negligence per
24
se is not an independent cause of action under California law.
25
Eli Lilly is correct. “‘Negligence per se’ is an evidentiary
26
doctrine codified at Evidence Code section 699. Under subdivision
27
(a) of this section, the doctrine creates a presumption of
28
negligence if four elements are established[,]” one of which is
17
1
the violation of a statute, ordinance, or regulation. Quiroz v.
2
Seventh Ave. Ctr., 140 Cal. App. 4th 1256, 1285 (2006). Per
3
Witkin, “[t]he doctrine of negligence per se does not provide a
4
private right of action for violation of a statute; instead, it
5
operates to establish a presumption of negligence for which the
6
statute serves the subsidiary function of providing evidence of
7
an element of a preexisting common law cause of action.” 6
8
Witkin, Summary of Cal. Law: Torts § 871 (10th ed., 2013
9
supplement).
10
While Waldo is free to allege the facts necessary to entitle
11
her to the evidentiary presumption, she may not plead negligence
12
per se as an independent cause of action. Accordingly, it will be
13
dismissed with prejudice.
14
15
J. Unfair and Deceptive Trade Practices
Waldo’s thirteenth cause of action alleges unfair and
16
deceptive trade practices under Cal. Bus. & Prof. Code § 17000 et
17
seq. Cal. Bus. & Prof.Code § 17200 (“UCL”) proscribes “unlawful,
18
unfair, or fraudulent business acts and practices.” In her
19
opposition, Waldo agrees to voluntarily dismiss this claim. The
20
court will so order.
21
K. Negligent Infliction of Emotional Distress
22
Waldo’s fourteenth cause of action alleges negligent
23
24
infliction of emotional distress (“NIED”).
Contra Eli Lilly, California law does support a claim for
25
NIED. But the California Supreme Court has allowed bystanders
26
such as Waldo (as opposed to direct victims) to plead this tort
27
“only if the plaintiff: (1) is closely related to the injury
28
victim, (2) is present at the scene of the injury-producing event
18
1
at the time it occurs and is then aware that it is causing injury
2
to the victim and, (3) as a result suffers emotional distress
3
beyond that which would be anticipated in a disinterested
4
witness.” Thing v. La Chusa, 48 Cal. 3d 644, 647 (1989).
5
Waldo cannot satisfy these elements. She could not have
6
perceived the alleged injury-producing event “at the time it
7
occur[red,]” as the injury occurred in utero. California courts
8
require that the perception of the injury-producing event be
9
immediate. “Although a plaintiff may establish presence at the
10
scene through nonvisual sensory perception, someone who hears an
11
accident but does not then know it is causing injury to a
12
relative does not have a viable [bystander] claim for [NIED],
13
even if the missing knowledge is acquired moments later.” Ra v.
14
Superior Court, 154 Cal. App. 4th 142, 149 (2007) (internal
15
quotation and citation omitted). “[W]e also reject [plaintiff]’s
16
attempt to expand bystander recovery to hold a product
17
manufacturer strictly liable for emotional distress when the
18
plaintiff observes injuries sustained by a close relative arising
19
from an unobservable product failure. To do so would eviscerate
20
the second Thing requirement.” Fortman v. Förvaltningsbolaget
21
Insulan AB, 212 Cal. App. 4th 830, 843−844 (2013). Birth defects
22
caused by pharmaceuticals ingested during pregnancy are, by
23
definition, an “unobservable product failure.”
24
Under the circumstances alleged in her complaint, Waldo
25
cannot articulate a claim for NIED against Eli Lilly.
26
Accordingly, this cause of action will be dismissed with
27
prejudice.
28
19
1
2
3
4
L. Intentional Infliction of Emotional Distress
Waldo’s fifteenth cause of action alleges intentional
infliction of emotional distress (“IIED”).
To plead IIED, a plaintiff must allege “(1) extreme and
5
outrageous conduct by the defendant with the intention of
6
causing, or reckless disregard of the probability of causing,
7
emotional distress; (2) the plaintiff’s suffering severe or
8
extreme emotional distress; and (3) actual and proximate
9
causation of the emotional distress by the defendant’s outrageous
10
conduct. A defendant’s conduct is “outrageous” when it is so
11
extreme as to exceed all bounds of that usually tolerated in a
12
civilized community. And the defendant’s conduct must be intended
13
to inflict injury or engaged in with the realization that injury
14
will result.” Hughes v. Pair, 46 Cal. 4th 1035, 1050–1051 (2009)
15
(internal citations and quotations omitted).
16
Eli Lilly is correct that Waldo largely offers conclusory
17
allegations in support of her IIED cause of action. For example,
18
she avers that “Defendant’s conduct directed towards
19
Plaintiff . . . evidenced a willful intention to inflict injury
20
upon Plaintiff, or a reckless disregard for the rights and
21
interests of Plaintiff equivalent to an intentional violation of
22
them.” (Complaint ¶ 141.) It is unclear from this allegation, and
23
from the complaint, whether Waldo is contending that Eli Lilly
24
acted intentionally, or with reckless disregard for its
25
customers.
26
27
Accordingly, Waldo’s cause of action for IIED will be
dismissed, with leave granted to amend.
28
20
1
M. Unjust Enrichment
2
Waldo’s sixteenth cause of action alleges unjust enrichment.
3
Eli Lilly moves to dismiss, citing caselaw to the effect
4
that unjust enrichment is a remedy sounding in restitution,
5
rather than an independent cause of action.
6
7
8
9
Waldo disagrees, citing cases holding that California law
recognizes a cause of action for unjust enrichment.
A recent, well-reasoned decision from the Northern District
of California examined these competing notions at length, and
10
concluded that an unjust enrichment theory will support an
11
independent claim for relief under California law. See Monet v.
12
Chase Home Fin., LLC, No. C 10–0135, 2010 WL 2486376, 2010 U.S.
13
Dist. LEXIS 59749 (N.D. Cal. June 16, 2010) (Seeborg, J.).
14
While this conclusion reinforces Waldo’s position, it is
15
nonetheless unclear whether the complaint as pled can support an
16
unjust enrichment claim. In Monet, Judge Seeborg noted:
17
18
19
20
21
22
23
24
25
26
27
28
There are a handful of factual scenarios
where a theory of unjust enrichment has
historically
supported
a
restitutionary
remedy. [Footnote omitted.] A plaintiff may,
for
example,
advance
a
claim
as
an
alternative to breach of contract damages
when the parties have a contract that was
procured by fraud or is for some reason
unenforceable. See McBride v. Boughton, 123
Cal. App. 4th 379, 388 (2004). Or, where the
plaintiff cannot assert title or right to
possession
of
particular
property,
but
nevertheless can show just grounds for
recovering money to pay for some benefit the
defendant received from him, “the plaintiff
has a right to restitution at law through an
action derived from the common-law writ of
assumpsit” (this method implies a contract at
law, or a quasi-contract). See Great–West
Life & Annuity Ins. Co. v. Knudson, 534 U.S.
204,
213
(2002)
(“Such
claims
were
[historically] viewed essentially as actions
at law for breach of contract (whether the
21
1
contract was actual or implied).”). Finally,
a plaintiff may seek restitution in equity,
ordinarily in the form of a constructive
trust or an equitable lien, where money or
property “identified as belonging in good
conscience to the plaintiff could clearly be
traced to particular funds or property in the
defendant's possession.” Id.
2
3
4
5
6
2010 WL 2486376 at *3, 2010 U.S. Dist. LEXIS 59749 at *8-*10.
7
Having reviewed the complaint, the court cannot determine which
8
of these three theories – an alternative to contractual damages,
9
an action in quasi-contract, or restitution in equity - Waldo
10
contends should apply to the facts of her case, which is, at
11
bottom, a personal injury action.4
Accordingly, this cause of action will be dismissed, and
12
13
Waldo granted leave to re-plead it with more specificity if she
14
so chooses.
15
IV.
CONCLUSION
16
Based on the foregoing, the court hereby orders as follows:
17
[1] Plaintiff’s first, ninth, twelfth, and fourteenth causes
18
of action are DISMISSED WITH PREJUDICE.
19
20
[2] Plaintiff’s fourth, tenth, eleventh, thirteenth,
21
fifteenth, and sixteenth causes of action are DISMISSED
22
WITHOUT PREJUDICE.
23
24
[3] The remainder of defendant’s motion to dismiss is
25
DENIED.
26
27
28
The Monet plaintiff sought to impose a constructive trust on
mortgage payments that the defendants failed to credit to his
account.
22
4
1
2
[4] Plaintiff is GRANTED leave to file an amended complaint
3
no more than twenty-one (21) days after entry of this order.
4
IT IS SO ORDERED.
5
DATED:
October 7, 2013.
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7
8
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10
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14
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