Dimieri v. Medicis Pharmaceuticals Corporation
Filing
24
ORDER granting 4 Defendant Medicis Pharmaceutical Corporation's Motion to Dismiss and Incorporated Memorandum of Law. Plaintiff, Marco V. DiMieri, is given leave to file an Amended Complaint. The Second Amended Complaint must be filed on or before August 1, 2014. Signed by Judge Sheri Polster Chappell on 7/14/2014. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MARCO V. DIMIERI,
Plaintiff,
v.
Case No: 2:14-cv-176-FtM-38DNF
MEDICIS
PHARMACEUTICALS
CORPORATION,
Defendant.
/
ORDER1
This matter comes before the Court on Defendant Medicis Pharmaceutical
Corporation’s Motion to Dismiss and Incorporated Memorandum of Law (Doc. #4) filed
on April 3, 2014. Plaintiff filed a response on April 24, 2014. (Doc. #9). Thus, this
Motion is ripe for review.
PROCEDURAL BACKGROUND
This Diversity case was removed from the Circuit Court of the Twentieth Judicial
Circuit in and for Collier County, Florida to the United States District Court for the Middle
District of Florida (Ft. Myers) (Doc. #1) on March 27, 2014. Plaintiff filed his Complaint
with the Court on March 27, 2014. (Doc. #2).
1
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the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion
of the Court.
1
FACTUAL BACKGROUND
Plaintiff is an adult male who ingested the prescription drug Solodyn for the
treatment of acne from 2009-2010.
manufacturer of Solodyn.
(Doc. #2, ¶¶ 12, 15).
(Doc. #2, ¶ 3).
Defendant is the
Plaintiff’s dermatologist (“physician”)
prescribed Solodyn in January 2009 and Plaintiff purchased Solodyn from a pharmacy.
(Doc. #2, ¶¶ 8, 12). Plaintiff discontinued use of Solodyn on February 1, 2010, after
purportedly experiencing “numbing pain in the crown of his head” and noticing alleged
hair loss around the last week of January 2010. (Doc. #2, ¶¶ 13, 14, 15). Plaintiff
alleges he first discovered that Solodyn causes hair loss after experiencing it firsthand.
(Doc. #2, ¶ 19). While researching his alleged hair loss online, Plaintiff read reviews
from others who purportedly experienced hair loss after ingesting Solodyn for the
treatment of acne. (Doc. #2, ¶ 16). Plaintiff believes his hair loss is due solely to his
ingestion of Solodyn; he allegedly had healthy hair before use and had no signs of early
male hair loss. (Doc. #2, ¶¶ 17, 30). Plaintiff states Defendant misrepresented Solodyn
as safe, although Defendant was fully aware that Solodyn was not reasonably suitable
or fit for its proper use. (Doc. #2, ¶¶ 41, 54). Plaintiff allegedly continues to suffer from
hair loss today. (Doc. #2, ¶ 15).
STANDARD
In deciding a motion to dismiss, the Court must accept all factual allegations in a
complaint as true and take them in the light most favorable to the plaintiffs. Christopher
v Harbury, 536 U.S. 403, 406, 122 S. Ct. 2179, 153 L. Ed. 2d 413 (2002). However,
dismissal for failure to state a claim upon which relief may be granted does not require
2
appearance, beyond a doubt. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561- 563,
S. Ct. 127 S. Ct. 1955, 167 L. Ed 2d 929 (2007) (abrogating Conley v. Gibson, 355 U.S.
41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s
obligation to provide the “grounds” of his “entitlement” to relief requires more than
labels, conclusions, and a formulaic recitation of the cause of actions elements. Bell
Atlantic, 550 U.S. 544, 561- 563.
To satisfy the pleading requirements of Fed. R. Civ. P. 8, a complaint must
simply give the defendants fair notice of what the plaintiff’s claim is and the grounds
upon which it rests. Id. at 555; Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.
Ct. 992, 152 L. Ed. 2d 1 (2002). Although the pleading standard announced in Fed R.
Civ. P. 8 does not require “detailed factual allegations,” it does demand more than an
unadorned, “the-defendant-unlawfully-harmed-me accusation.”
Sinaltrainal v. Coca-
Cola Co., 578 F. 3d 1252, 1268 (11th Cir. 2009) (citing Ascroft v. Iqbal, ----- U.S.----,
129 S. Ct. 1937, 1949, 173 L. Ed 2d 868 (2009). Furthermore, unwarranted deductions
of fact in a complaint are not admitted as true for the purpose of testing the sufficiency
of the allegations. Sinaltrainal, 578 F. 3d at 1268 (citing Aldana v. Del Monte Fresh
Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005)). The facts as pled must
state a claim for relief that is plausible on its face. Sinaltrainal, 578 F. 3d at 1268 (citing
Iqbal, 129 S. Ct. at 1950). Dismissal is warranted under Fed. R. Civ. P. 12(b)(6) if,
assuming the truth of the factual allegations of plaintiff’s complaint, there is a dispositive
legal issue which precludes relief. Simplexgrinnell, L.P. v. Ghiran, 2007 WL 2480352
(M.D. Fla. August 29, 2007) (citing Neitzke v. Williams, 490 U.S. 319, 326, 109 S. Ct.
3
1827, 104 L. Ed. 2d 338 (1989); Brown v. Crawford County, Georgia, 960 F.2d 1002,
1009-1010 (11th Cir. 1992)).
DISCUSSION
As a result of his alleged hair loss, Plaintiff brought the instant suit alleging seven
counts against Defendant: Failure to Warn (Count I), Strict Liability (Count II), Breach of
Warranty (Count III), Breach of the Warranty of Fitness (Count IV), Misrepresentation
(Count V), Negligence (Count VI), and Fraud (Count VII). (Doc. #2). Defendant states
Plaintiff’s Complaint must be dismissed because Plaintiff does not plead his claims with
any specificity. (Doc. #4 at 2). The Court will address each in order.
Count I: Failure to Warn
Plaintiff argues Defendant failed to properly warn Plaintiff regarding the dangers
of hair loss associated with Solodyn, as it was defective and unreasonably dangerous.
(Doc. #2, ¶¶ 24, 34). Defendants argue Plaintiff’s Count I should be dismissed pursuant
to the learned intermediary doctrine. (Doc. #4 at 4). Defendants also allege Plaintiff
has failed to plead such a claim properly under the Twombly and Iqbal standard. (Doc.
#4 at 4). See Twombly, 550 U.S. 544 and Iqbal, 556 U.S. 662
In Florida, manufacturers of prescription drugs have a duty to warn consumers of
known risks or be subject to strict liability for any resulting harm. See Horrillo v. Cook
Inc., 10-15327, 2012 WL 6553611, at *2 (11th Cir. Nov. 7, 2012). However, when a
physician is involved, the physician serves as a learned intermediary between the
patient and the manufacturer and the learned intermediary doctrine might apply. See
Christopher v. Cutter Labs., 53 F.3d 1184, 1192 (11th Cir.1995). If the manufacturer
properly warns the physician regarding the known risks, the learned intermediary
4
doctrine applies and the manufacturer’s duty to warn the consumer is discharged. See
Christopher, 53 F.3d at 1192. Furthermore, in a case where the manufacturer fails to
properly warn the physician, the learned intermediary doctrine will still discharge the
manufacturer’s duty to warn the patient if the physician had independent knowledge of
the risks associated with using the drug.
See MacMorris v. Wyeth, Inc.,
2:04CV596FTM-29DNF, 2005 WL 1528626, at *2 (M.D. Fla. June 27, 2005) (“In other
words, the causal link between a patient’s injury and the alleged failure to warn is
broken when the prescribing physician had ‘substantially the same’ knowledge as an
adequate warning from the manufacturer should have communicated to him.”).
Nevertheless, a plaintiff can succeed on a failure to warn claim against a
manufacturer in spite of Florida’s learned intermediary doctrine. “The Plaintiff must
show that ‘more likely than not’ the warning to the physician was inadequate and the
warning did not sufficiently inform the prescribing physician about the risks involved in
prescribing the drug.” Chase v. Novartis Pharm. Corp., 740 F. Supp. 2d 1295, 1296-97
(M.D. Fla. 2006) (citations omitted) (emphasis added). Therefore, a plaintiff must allege
the physician did not have substantially the same information as the manufacturer due
to inadequate warnings and/or a lack of independent knowledge. See Chase, 740 F.
Supp. 2d at 1297.
If the physician had substantially the same knowledge as the
manufacturer when he prescribed the drug, the learned intermediary doctrine prevents
the plaintiff from suing the manufacturer for a deficient warning; the physician would
have prescribed the drug even with an appropriate warning label. See Chase, 740 F.
Supp. 2d at 1297.
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In this case, Plaintiff did not receive Solodyn over the counter, but under a
physician’s prescription. (Doc. #2, ¶ 12). Therefore, the learned intermediary doctrine
will apply to prevent this lawsuit against the manufacturer, unless Plaintiff can
successfully plead his physician was not adequately warned by the manufacturer and
lacked independent knowledge of the risks associated with ingestion of Solodyn. See
Chase, 740 F. Supp. 2d at 1297. However, in his Complaint (Doc. #2), Plaintiff fails to
allege the extent of his physician’s knowledge regarding the risks of consuming
Solodyn.
Plaintiff states “Defendant’s product was unsafe for its intended use as
Defendant failed to give Plaintiff and other users adequate warning of the nature and
extent of the danger result from use of that product.” (Doc. #2, ¶ 24). Hence, Plaintiff
only argues he had inadequate personal knowledge regarding Solodyn’s risks, but does
not assert whether his physician’s knowledge of Solodyn was inadequate, which is the
relevant question. (Doc. #2, ¶ 28). While it is true Plaintiff alleged Defendant failed to
warn “Plaintiff and other people” (Doc. #2, ¶ 28), this statement is simply too vague to
imply Plaintiff’s physician had inadequate knowledge of the risks of Solodyn, even when
favorably construed on behalf of Plaintiff. See Twombly, 550 U.S. 544 and Iqbal, 556
U.S. 662. Therefore, Defendant’s Motion to Dismiss as to Count I is granted because
Plaintiff did not plead failure to warn sufficiently under Florida law.
Count II: Strict Liability
Plaintiff argues Defendant is strictly liable because Defendant knew or should’ve
known Solodyn had dangerous side effects and failed to provide a proper warning on
the Solodyn bottle. (Doc. #2, ¶ 34). Defendant responds Plaintiff fails to provide any
factual basis to support his bare recitation of the elements of strict liability. (Doc. #2 at
6
5). Defendant argues Plaintiff does not even assert whether the alleged defect related
to manufacture, design, or warning. (Doc. #4 at 6).
While it is proper to allege which specific strict liability theory is at issue in a
plaintiff’s pleading, the Eleventh Circuit interpreting Florida law has advocated leniency
in this regard. See Bailey v. Janssen Pharmaceutica, Inc., 288 F. App'x 597, 607 (11th
Cir. 2008).
The Eleventh Circuit has determined when a plaintiff’s “complaint weaves
multiple defect theories under the rubric of strict liability,” the complaint should not be
dismissed on that basis alone. Bailey, 288 F. App'x at 607. Instead, the Court can find
a plaintiff “established minimally sufficient factual allegations to support her claim for
strict products liability under either a manufacturing or design defect avenue to liability.”
Bailey, 288 F. App'x at 607. When the Court construes Plaintiff’s Complaint in the light
most favorable to Plaintiff, it seems Plaintiff alleges strict liability based on failure to
warn and defective design or manufacture theories. (Doc. #2, ¶¶ 33, 34).
a. Failure to Warn
Under Florida law, when strict liability is “based on a drug’s insufficient
warnings…plaintiff must allege all of the following: ‘(1) that the warnings accompanying
the item were inadequate; (2) that the inadequacy of the warnings proximately caused
Plaintiff's injury; and (3) that Plaintiff in fact suffered an injury by using the product.’”
Hosler v. Alcon Labs., Inc., 12-60025-CIV, 2012 WL 4792983, at *9 (S.D. Fla. Oct. 9,
2012).
Since the learned intermediary doctrine applies, Plaintiff has to allege these
factors with his physician in mind.
Thus, for the first factor, Plaintiff has to assert
Defendant’s warnings given to his physician were inadequate in his complaint. Plaintiff
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merely states as his basis for strict liability that “Defendant is liable under strict liability in
tort as Defendant knew or should’ve known that “SOLODYN” was defective and unsafe
for treating acne and a proper warning on the bottle was absent.” (Doc. #2, ¶ 34).
Since Plaintiff does not allege the warnings to his physician were inadequate or that any
were given, the Court cannot determine whether the inadequacy of Defendant’s
warnings to Plaintiff’s physician proximately caused Plaintiff’s injury.
While Plaintiff
does state he suffered an injury (Doc. #2, ¶ 36), he does not allege sufficient facts to
satisfy the standard for pleading strict liability. Plaintiff’s claim for strict liability based on
failure to warn must be dismissed because the first two elements of strict liability on a
failure to warn theory were not pled sufficiently.
b. Design or manufacturing defect
To state a claim in Florida for strict products liability based on a design or
manufacturing defect, a plaintiff must plead three elements: “(1) a relationship between
the defendant and the product; (2) a defect which caused the product to be
unreasonably dangerous; (3) causation between the defect and the harm suffered by
the user.” Bailey, 288 F. App’x at 607.
As to the first prong, Plaintiff nominally alleges a relationship between the
Defendant and the product by stating “Defendant is engaged in the business of
preparing, manufacturing…the medicinal product known as ‘SOLODYN’ within Florida.”
(Doc. #2, ¶ 3). Then, Plaintiff asserts Solodyn contains a design or manufacturing
defect which resulted in hair loss by claiming Solodyn “was unreasonably dangerous as
a medicine for acne; the defective condition was not known to Plaintiff” (Doc. #2, ¶ 33)
and “Defendant knew or should have known that ‘SOLODYN’ was defective and unsafe
8
for treating acne.” (Doc. #2, ¶ 34) (emphasis added). However, these are mere legal
conclusions. See Bailey, 288 F. App’x at 607. Plaintiff fails to identify the source of an
alleged defect in Solodyn or disclose any possible defects which could exist in Solodyn.
(Doc. #2). These allegations are insufficient to “allow defendants to frame a responsive
pleading directed at a defect in either the design or manufacturing” of Solodyn which
resulted in Plaintiff’s hair loss. See Bailey, 288 F. App’x at 608. As to causation,
Plaintiff asserts he received the product “in the same condition that it was when it was
manufactured by the Defendant” (Doc. #2, ¶¶ 7, 30) and prior to his Solodyn use,
Plaintiff had “no signs of early male pattern hair loss.” Plaintiff’s Complaint fails to make
a sufficient causal connection; Plaintiff does not state what possible defect in Solodyn
might have caused the hair loss or deny the existence of other factors which might have
caused his hair loss. Since all the elements of strict liability for a manufacturing or
design defect are not met, Defendant’s Motion to Dismiss as to the second part of
Count II must be granted.
Therefore, Defendant’s Motion to Dismiss as to Count II is granted because
Plaintiff failed to sufficiently plead all elements pertaining to strict liability under the
failure to warn and design or manufacturing defect theories.
Count III: Breach of Warranty
Plaintiff argues by distributing Solodyn to pharmacies and physicians in Florida,
Defendant gave consumers an express warranty that Solodyn was a safe product with
no dangerous side effects. (Doc. #2, ¶ 41). Defendant responds Plaintiff’s breach of
warranty claim must fail due to the lack of privity between Plaintiff and Defendant which
is required under Florida law. (Doc. #4 at 7). Defendant argues because Plaintiff did
9
not purchase Solodyn directly from Defendant there is no privity between them. (Doc.
#4 at 7).
According to Florida law, for a plaintiff “to recover in an action for breach of an
express
warranty,
the
parties must
be
in
privity.”
Cruz v.
Mylan,
Inc.,
8:09CV1106T17EAJ, 2010 WL 598688, at *2 (M.D. Fla. Feb. 17, 2010). In order to
prove privity, a plaintiff must allege there was a “sale from manufacturer to [plaintiff],” or
a contract between them, or a warrant communicated from the manufacturer to plaintiff.
MacMorris, 2005 WL 1528626, at *3. “A plaintiff who purchases a product, but does not
buy it directly from the defendant, is not in privity with that defendant.” Cruz, 2010 WL
598688, at *2 (citing T.W.M. v. American Medical Systems, Inc., 886 F.Supp. 842, 844
(N.D.Fla.1995)). On the other hand, “some factual circumstances satisfy the privity
requirement even in the absence of a purchase directly from the manufacturer.”
MacMorris, 2005 WL 1528626, at *3. In cases where courts held privity was met by
factual circumstances either the manufacturer’s representative was heavily involved in
the transaction, the manufacturer told the third party to tell the plaintiff the specific
warranty, or there were direct contacts between the manufacturer and the plaintiff.
MacMorris, 2005 WL 1528626, at *3.
Here, Plaintiff fails to allege the existence of privity between himself and
Defendant. (Doc. #2, ¶ 41). Most often, privity does not exist between manufacturers
and patients when the medication is only available by prescription. See Cruz, 2010 WL
598688 at *2 (“As the [product] is an FDA-approved pharmaceutical, it is only available
by prescription. [Plaintiff] could only have obtained the [product] from the pharmacy and
not from [Defendant] directly. Therefore, Plaintiff's implied warranty claims must be
10
dismissed for want of privity between the parties.”).
Plaintiff does not assert the
existence of any direct contact between Defendant and Plaintiff when the physician
Plaintiff states “through the distribution to pharmacies and
prescribed Solodyn.
physicians in the state of Florida, the Defendant expressly warranted ‘SOLODYN’ as
being a medicine for acne, with no warning for the side effect of hair loss.” (Doc. #2, ¶
42).
Plaintiff indicates he purchased Solodyn through his physician’s prescription at a
pharmacy, which on its face indicates there was an absence of privity between Plaintiff
and Defendant. See Cruz, 2010 WL 598688, at *2. (Doc. #2, ¶ 6). Also, Plaintiff does
not allege any of the factual situations which warranted the existence of privity in other
cases: no allegations of substantial contact with Defendant’s representative, no
allegations Defendant told physician to communicate certain warnings, nor any direct
contacts between Defendant and Plaintiff. See MacMorris, 2005 WL 1528626, at *3.
(Doc. #2). Hence, Plaintiff bases his argument for the existence of an express warranty
solely on Defendant’s “distribution [of Solodyn] to pharmacies and physicians in the
state of Florida” (Doc. #2, ¶ 41) which is insufficient to plead a valid breach of warranty
claim. See MacMorris, 2005 WL 1528626, at *3. Therefore, Defendant’s Motion to
Dismiss as to Count III is granted because Plaintiff does not allege privity between
Plaintiff and Defendant.
Count IV: Breach of Warranty of Fitness
Plaintiff argues Defendant breached the implied warranty of fitness when Plaintiff
suffered hair loss as a result of ingesting Solodyn for the treatment of his acne. (Doc.
#2, ¶ 54). Defendant responds Plaintiff fails to allege any facts demonstrating privity
11
between Defendant and Plaintiff. (Doc. #4 at 7). Under Florida law, there can be no
breach of implied warranty of fitness without privity between the parties. (Doc. #4 at 7).
In the state of Florida, “the plaintiff must be in privity of contract to recover for a
breach of implied warranty.” Kirchman v. Novartis Pharm. Corp., 8:06-CV-1787-T-24,
2014 WL 2158519, at *6 (M.D. Fla. May 23, 2014). Florida “abolished the no-privity,
breach of implied warranty cause of action for personal injury.” Wilson v. Danek Med.,
Inc., 96-2460-CIV-T-17B, 1999 WL 1062129, at *7 (M.D. Fla. Mar. 29, 1999) (quoting
Kramer v. Piper Aircraft Corp., 520 So.2d 37, 39 (Fla.1988). Florida case law dictates
that “[a] plaintiff who purchases a product but does not buy it directly from the
defendant, is not in privity with that defendant.” Kirchman, 2014 WL 2158519, at *6.
In his Complaint, Plaintiff offers statements such as “Defendant impliedly
warranted that ‘SOLODYN’ was a safe and suitable medication to be used to help
acne.” (Doc. #2, ¶ 50). However, statements such as these fail to show the existence
of an implied warranty or allege the presence of privity. The Court does not regard
mere legal conclusions as true at this stage in the litigation. Christopher, 536 U.S. at
406. Therefore, the Motion to Dismiss as to Count IV must also be granted since there
is no assertion of privity between Plaintiff and Defendant.
Counts V and VII: Fraud and Misrepresentation
Plaintiff argues Defendant engaged in fraud and misrepresentation when
marketing Solodyn to the public. (Doc. #2, ¶¶ 56, 57, 58, 59). Plaintiff claims the public
detrimentally relied on Defendant’s misrepresentations concerning Solodyn as a safe
and effective drug for acne, trusting in Defendant’s superior knowledge as the
manufacturer. (Doc. #2, ¶¶ 56, 63, 72). Defendant replies Plaintiff’s allegations do not
12
meet the heightened pleading standard under Fed. R. Civ. P. 9(b) for fraud-based
claims. (Doc. #4 at 7). Defendant states Plaintiff’s factual pleading lacks particularity.
(Doc. #4 at 8).
Fed.R.Civ.P. 9(b) “requires a party alleging fraud to ‘state with particularity the
circumstances constituting fraud.’”
Linville v. Ginn Real Estate Co., 697 F.Supp.2d
1302, 1306 (M.D.Fla.2010). To satisfy Rule 9(b) at a minimum, the complaint must
identify: “(1) precisely what statements were made in what documents or oral
representations or what omissions were made, and (2) the time and place of each such
statement and the person responsible for making (or, in the case of omissions, not
making) same, and (3) the content of such statements and the manner in which they
misled the plaintiff, and (4) what the defendants ‘obtained as a consequence of the
fraud.’” Brooks v. Blue Cross & Blue Shield of Florida, Inc., 116 F.3d 1364, 1371 (11th
Cir. 1997). When the learned intermediary doctrine applies, it acts as a barrier against
patients’ lawsuits if the medicinal manufacturer communicates warnings to the
physician. Cruz, 2010 WL 598688, at *3. However, the learned intermediary rule does
not protect manufacturers who communicate directly to patients. See Cruz, 2010 WL
598688, at *3 (“Effectively, the pharmaceutical company’s duty to warn stops at the
physician or prescriber and does not directly make statements to the ultimate
purchaser.”).
In one case, “the Florida Second District Court of Appeals held that where
plaintiffs’ complaint alleged the defendant had misrepresented and omitted material
facts about the product in question to the physician and patient, which induced them to
rely on such misrepresentations and omissions to their detriment, the complaint stated a
13
cause of action for fraud.” Cruz, 2010 WL 598688, at *3 (citing Adams v. G.D. Searle &
CO., Inc., 576 So.2d 728, 730 (Fla.App. 2 Dist.1991)) (emphasis added). Alternatively,
when a plaintiff does “not allege knowledge of the representations made to the
physician and fail[s] to allege evidence of any direct advertising from Defendant to the
ultimate consumer, the learned intermediary doctrine bars th[e] claim.” Cruz, 2010 WL
598688, at *3.
Plaintiff’s Complaint does not allege any misrepresentations given to Plaintiff’s
physician regarding Solodyn or state with particularity any personal contact Plaintiff may
have had with Defendant’s alleged fraudulent advertising. (Doc. #2). Therefore, the
learned intermediary doctrine bars this fraud-based claim. Cruz, 2010 WL 598688, at
*3.
Notwithstanding the learned intermediary doctrine, Plaintiff’s pleadings do not
meet the specificity requirement for pleading fraud and misrepresentation under
Fed.R.Civ.P. 9(b). In fact, Plaintiff’s Complaint is nothing more than a recitation of
information he pulled from American Jurisprudence forms without facts that would
support his claims. (Doc. #9). First, Plaintiff does not allege how the warning regarding
the risk of hair loss was omitted because he does not state precisely what warnings
were given. (Doc. #2). In his Complaint, Plaintiff alleges the bottle of Solodyn lacked a
proper label and states “improper information” was provided to him, but gives no
specificity as to the content of this information. (Doc. #2, ¶¶ 34, 63). Also, Plaintiff does
not state whether he read the “improper information” on his own or heard this “improper
information” from the physician. (Doc. #2). Furthermore, Plaintiff fails to allege what
Defendant received as a consequence of the alleged fraudulent misrepresentation.
14
(Doc. #2). Thus, Defendant’s Motion to Dismiss is granted as to Counts V and VII
because the learned intermediary doctrine applies and Plaintiff fails to satisfy the
pleading standard under Fed.R.Civ.P. 9(b) for fraud and misrepresentation.
Count VI: Negligence
Plaintiff argues Defendant was negligent and Plaintiff suffered as a result of
Defendant’s negligence. (Doc. #2, ¶¶ 63, 64). Defendant responds Plaintiff fails to
assert adequate facts in support of a negligence claim. (Doc. #4 at 8).
Under Florida law, in order to state a proper negligence claim, a “plaintiff must
allege (1) a duty or obligation recognized by the law requiring the defendant to protect
others from unreasonable risks; (2) a breach of that duty; (3) a reasonably close causal
connection between the conduct and the resulting injury; and (4) actual loss or
damages.” Small v. Amgen, Inc., 2:12-CV-476-FTM-29, 2014 WL 897033 at *5 (M.D.
Fla. Mar. 6, 2014) (citing Williams v. Davis, 974 So.2d 1052, 1056 (Fla.2007)).
Plaintiff bases his claim for negligence in these two sentences: “Plaintiff relied on
the superior knowledge of the Defendants and their instructions for ‘SOLODYN’ and
thus sustained damages as a result from the improper instructions furnished by
Defendant,” and “[a]s a direct and proximate result of the negligent acts of the
Defendant, Plaintiff has been damages in the amount in excess of $20,000.00.” (Doc.
#2, ¶¶ 63, 64).
These statements are clearly insufficient to successfully plead a
negligence claim.
First, Plaintiff fails to claim there was a duty between Defendant and Plaintiff.
(Doc. #2, ¶¶ 63, 64). Even if Plaintiff had properly claimed there was a duty, it would
not be recognized at law because of the learned intermediary doctrine. Christopher, 53
15
F.3d at 1192. Furthermore, Plaintiff does not allege any facts to suggest the breach of
such a duty. (Doc. #2, ¶¶ 63, 64). Then, when Plaintiff states his injury and damages
occurred “as a direct and proximate result of the negligent acts of the Defendant...,” he
is simply stating a legal conclusion. (Doc. #2, ¶ 64).
Plaintiff does not present any
supporting facts to show the Court causation is plausible in this case.
See Twombly,
550 U.S. at 545 (“The need at the pleading stage for allegations plausibly suggesting
(not merely consistent with) agreement reflects Rule 8(a)(2)’s threshold requirement
that the “plain statement” possess enough heft to “sho[w] that the pleader is entitled to
relief.”). Thus, Defendant’s Motion to Dismiss must be granted as to Count VI for failure
to plead negligence sufficiently.
CONCLUSION
Plaintiff fails to plead any facts or law to support his claims.
The Plaintiff’s
Complaint is a series of general statements lifted from forms that do not adhere to the
pleading standard set forth in the Federal Rules of Civil Procedure. Therefore, the
Court grants Defendant’s Motion to Dismiss and gives Plaintiff leave to amend.
Accordingly, it is now
ORDERED:
(1) Defendant Medicis Pharmaceutical Corporation’s Motion to Dismiss and
Incorporated Memorandum of Law (Doc. #4) is GRANTED.
(2) Plaintiff, Marco V. DiMieri, is given leave to file an Amended Complaint.
(3) The Second Amended Complaint must be filed on or before August 1,
2014.
16
DONE and ORDERED in Fort Myers, Florida this 14th day of July, 2014.
Copies: All Parties of Record
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