Roberson et al v. Novartis Pharmaceuticals Corporation

Filing 20

MEMORANDUM Opinion and Order Signed by the Honorable George W. Lindberg on 5/5/2011.Mailed notice(pm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JUSTIN ROBERSON, a minor, by and
through his mother and next friend,
ANGELA ROBERSON,

)
)
)
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Plaintiff,
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v.
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NOVARTIS PHARMACEUTICALS
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CORPORATION, and NOVARTIS
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PHARMACEUTICALS CORPORATION
)
D/B/A CIBA PHARMACEUTICALS, formerly )
known as SANDOZ INC. and/or SANDOZ
)
PHARMACEUTICALS CORPORATION,
)
)
Defendant.
)

Case No. 11 C 2035
Hon. George W. Lindberg

MEMORANDUM OPINION AND ORDER
Before the Court is defendant Novartis Pharmaceuticals Corporation’s (“Novartis”)
motion to dismiss minor plaintiff Justin Roberson’s (“Roberson”) complaint. Roberson’s claims
stem from his use of Trileptal, a prescription antiepileptic medication. Roberson claims that his
prescription use of Trileptal caused a skin reaction known as Stevens-Johnson Syndrome
(“SJS”). The complaint alleges claims for strict products liability (Count I), breach of express
warranty (Count II), negligence (Count III), misrepresentation by omission (Count IV),
negligence per se (Count V), negligent misrepresentation (Count VI), fraud and
misrepresentation (Count VII), fraud by concealment (Count VIII), violation of consumer
protection laws (Count IX), and breach of implied warranties (Count X). As set froth more fully
below, the motion to dismiss is granted as to Count V and denied as to the other nine counts.
In order to survive a motion to dismiss pursuant to Federal Rule of Civil Procedure
(“Rule”) 12(b)(6), Roberson’s complaint must provide grounds for entitlement to relief that are

more than mere labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.
Ct. 1955, 167 L.Ed.2d 929 (2007). A formulaic recitation of the elements of a cause of action
will not suffice. Id. Instead, Roberson’s factual allegations must be sufficient to raise a right to
relief above the speculative level. Id. To survive a motion to dismiss, a complaint must allege
sufficient facts to state a claim for relief that is plausible on its face. Id. at 570. When
considering a motion to dismiss pursuant to Rule 12(b)(6), this Court must accept as true all of
the factual allegations contained in the complaint and draw all reasonable inferences in
Roberson’s favor. Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir.2007).
For the most part, Novartis’ motion to dismiss ignores the notice pleading standard
applicable to Roberson’s complaint and makes arguments that would be more appropriate in a
motion for summary judgment. The crux of Novartis’ motion is that Roberson cannot state a
strict products liability claim because of the language in the Trileptal labeling. The content of
the Trileptal label is a question of fact. Roberson’s complaint states that the labeling was
insufficient and lacked proper warnings. The Court takes those statements as true for purposes
of the instant motion. Those statements may turn out to be false as Novartis claims, however,
the Court cannot make factual determinations at this stage of the case.
Strict Products Liability (Count I)
As stated above, Novartis’ arguments in support of its motion to dismiss Roberson’s
strict liability claim go to the merits of the claim, not the sufficiency of the pleadings. Merits
arguments are premature, thus the motion to dismiss is denied as to Count 1.
Breach of Express and Implied Warranty Claims (Counts II and X)
Novartis argues that Roberson’s breach of express warranty claim should be dismissed

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because the complaint does not identify the explicit terms of the alleged express warranty or
attach a copy of the alleged warranty. In support of that statement, Novartis cites to Board of
Education v. A, C and S, Inc., 546 N.E.2d 580, 595 (Ill. 1989). The Illinois Supreme Court’s
statements in A, C, and S stem from Illinois’ fact pleading requirements. “As a federal court
sitting in diversity by virtue of jurisdiction pursuant to 28 U.S.C. § 1332, we apply state law to
resolve substantive questions and federal law to resolve procedure and evidentiary issues.”
Harper v. Vigilent Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Accordingly, in pleading his
warranty claims, Roberson is only required to meet federal notice pleading standards, not the
more stringent Illinois fact pleading standards. “[F]ederal courts, unlike Illinois state courts, do
not require that critical documents be attached to the complaint.” Arnold v. Janssen
Pharmaceuticals, Inc., 215 F.Supp.2d 951, 962 (N.D. Ill. 2002).
Roberson’s statement that Novartis warranted that Trileptal was safe and effective is
sufficient to put Novartis on notice of his express warranty claim and raises his right to relief
above the speculative level. Novartis’ argument that there was in fact no express warranty
between it and Roberson goes to the merits of the breach of express warranty claim and is not
appropriate at this stage of the case. For these reasons, the motion to dismiss is denied as to
Count II. For similar reasons, Novartis’ motion is denied as to Roberson’s claim for breach of
implied warranties (Count X).
Common Law Negligence Claim (Count III)
Novartis does not specifically address Roberson’s common law negligence claim in its
motion to dismiss. Accordingly, the motion to dismiss is denied as to Count III.

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Fraud Claims (Counts IV, VII, VIII, and IX)
Novartis moves to dismiss Roberson’s common law and statutory fraud claims pursuant
to Rule 9, arguing that those claims are not plead with the requisite particularity. The Court
disagrees. Roberson has sufficiently alleged that Novartis misrepresented the safety and
effectiveness of Trileptal at the time he was prescribed the drug. Those allegations are sufficient
to satisfy the requirements of Rule 9.
As to the fraudulent concealment claim, a determination about whether Novartis’ duty of
disclosure applied to Roberson or to his prescribing physician is a question of fact. As the Court
stated above, fact questions are more appropriately raised in motions for summary judgment and
cannot provide the basis for granting a motion to dismiss. Therefore, the motion to dismiss is
denied as to Counts IV, VII, VIII and IX.
Negligence Per Se (Count V)
The negligence per se claim is dismissed because Roberson failed to identify a specific
statute in the complaint that Novartis allegedly violated. In his response brief, Roberson argues
that his negligence per se claim stems from Novartis’ violation of the Illinois Consumer Fraud
and Deceptive Business Practices Act (“ICFA”). The ICFA is not a strict liability statute.
Accordingly, it cannot provide the basis for a negligence per se claim. See Watseka Farmers
Grain Coop. Co. v. FC Stone Group, Inc., 2006 WL 3743112 at 6 (C.D. Ill. Dec. 15, 2006)
(citing Test Drilling Services Co. v. Hanor Co., 322 F.Supp.2d 957, 963 (C.D.Ill. 2003)).
Therefore, the motion to dismiss is granted as to Count V.
Misrepresentation Claims (Counts VI and VII)
Novartis moves to dismiss the misrepresentation claims, arguing that it is not in the

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business of supplying information and thus cannot be liable for misrepresentations. Again,
whether Novartis is in the business of supplying information is a factual determination that is not
appropriate for the Court to make when resolving a motion to dismiss, thus the motion is denied
as to Counts VI and VII.
In summary, the motion to dismiss is granted as to Count V, Roberson’s claim for
negligence per se, and denied as to the other nine counts.

ORDERED: Defendant Novartis Pharmaceuticals Corporation’s Motion to Dismiss Plaintiff’s
Complaint [9] is granted as to the negligence per se claim (Count V) and denied as to the
remaining nine claims. Defendant’s answer to the complaint is due May 11, 2011. Status
hearing set for May 25, 2011 at 10:00 a.m. stands.

Signed: _____________________________
George W. Lindberg
Senior U.S. District Court Judge

Dated: May 5, 2011

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