Detroit v. Bayer Healthcare, LLC et al

Filing 35

ORDER denying 32 Motion for Reconsideration. Signed by Chief Judge David R. Herndon on 4/12/2012. (dsw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
------------------------------------------------------------

X

IN RE YASMIN AND YAZ (DROSPIRENONE)
MARKETING, SALES PRACTICES AND
PRODUCTS LIABILITY LITIGATION

3:09-md-02100-DRH-PMF
MDL No. 2100

-----------------------------------------------------------Judge David R. Herndon

This Document Relates to:
Holly Detroit v. Bayer Healthcare LLC, et al.
No. 3:11-cv-20087-DRH-PMF

ORDER DENYING MOTION FOR RECONSIDERATION

I. INTRODUCTION
Herndon, Chief Judge,
This matter is before the Court on the plaintiff’s motion to reconsider (Doc.
32) the Court’s order denying remand (Doc. 29).

For the reasons discussed

below, the Court DENIES plaintiff’s motion for reconsideration.
II. BACKGROUND
Plaintiff brought this product liability action in Washington state court
against the Bayer defendants and The Vancouver Clinic, among others.

The

complaint alleges that the plaintiff was injured as a result of using YAZ, an FDAapproved oral contraceptive prescription medication.

The sole non-diverse

defendant is The Vancouver Clinic – the healthcare facility that prescribed and
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distributed the subject drug to the plaintiff. The Bayer defendants removed this
action to the Western District of Washington, alleging that The Vancouver Clinic
had been fraudulently joined. The action was subsequently transferred to this
MDL with plaintiff’s motion to remand pending.
Plaintiff asserts causes of action sounding in strict liability, negligence,
breach of express and implied warranties, intentional misrepresentation/fraud,
and statutory consumer protection.

In denying remand, the Court found that

plaintiff’s claims for strict liability, negligence, and breach of express or implied
warranty were product liability claims governed by Washington’s Product Liability
Act (“WPLA”) and that The Vancouver Clinic was not subject to liability under the
WPLA (Doc. 29 pp. 6-8). Accordingly, the Court found that plaintiff’s product
liability claims had no reasonable chance of success (Doc. 29 pp. 4-5).
The Court also noted that plaintiff’s breach of warranty claims could be
brought under Washington’s version of the Uniform Commercial Code (“UCC”)
(Doc. 29 pp. 8-10). The Court concluded, however, that recovery under the UCC
was not available because the subject transaction was predominately a transaction
involving the sale of services (Doc. 29 pp. 8-10). Finally, with regard to plaintiff’s
claims for intentional misrepresentation/fraud and statutory consumer protection
(non-product liability claims not governed by the WPLA), the Court found that
plaintiff had failed to state a claim against The Vancouver Clinic (Doc. 29 pp. 1014). With regard to the claim for intentional misrepresentation/fraud, the Court
specifically found that the plaintiff failed to plausibly plead facts establishing that
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The Vancouver Clinic made any representation to the plaintiff, let alone a
representation involving the requisite scienter.

In her present motion, plaintiff

insists that paragraphs 48 and 49 of her complaint cure the pleading defects in
her claim for intentional misrepresentation/fraud.

Plaintiff contends that the

Court must have “overlooked” or misunderstood the allegations in paragraphs 48
and 49 and asks the Court to reconsider its ruling.
III. LEGAL BASIS FOR RECONSIDERATION
Technically, a “Motion to Reconsider” does not exist under the Federal
Rules of Civil Procedure. The Seventh Circuit has held that a motion challenging
the merits of a district court order will automatically be considered as having
been filed pursuant to Rule 59(e) or Rule 60(b) of the Federal Rules of Civil
Procedure. 1 See, e.g., Mares v. Busby, 34 F.3d 533, 535 (7th Cir. 1994). If a
motion for reconsideration is filed within 28 days of the entry of the challenged
order, the substance of the motion determines whether the motion should be
analyzed under Rule 59(e) or Rule 60(b). Ho v. Taflove, 648 F.3d 489, 495 nn.
4–5 (7th Cir. 2011); Obriecht v. Raemisch, 517 F.3d 489, 493 (7th Cir. 2008).
See also Fed. R. Civ. P. 59(e) (“A motion to alter or amend a judgment must be
filed no later than 28 days after the entry of the judgment.”). However, a motion
to reconsider filed more than 28 days after entry of the challenged order,

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Plaintiff does not state whether her motion for reconsideration is filed pursuant
to Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure. She merely
states that a motion to reconsider is appropriate when the Court has
misunderstood a party (Doc. 32 p. 1).
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“automatically becomes a Rule 60(b) motion.” Hope v. United States, 43 F.3d
1140, 1143 (7th Cir. 1994) (citing United States v. Deutsch, 981 F.2d 299, 301
(7th Cir. 1992)); see also Kiswani v. Phoenix Sec. Agency, Inc., 584 F.3d 741,
742-43 (7th Cir. 2009); Talano v. N.W. Med. Faculty Found., Inc., 273 F.3d 757,
762 (7th Cir. 2001).
The order plaintiff is challenging was entered on August 25, 2011 (Doc. 29).
Plaintiff’s motion to reconsider was filed on September 27, 2011 (Doc. 32) – more
than 28 days after the entry of the challenged order.

Therefore, the plaintiff’s

motion must be treated as a motion for reconsideration under Rule 60(b).
Relief under Rule 60(b) is limited to the grounds specified in the rule – such
as “mistake, inadvertence, surprise, or excusable neglect;” newly discovered
evidence; fraud; or extraordinary circumstances that are ordinarily not available
on direct appeal. See FED. R. CIV. P. 60(b); Liljeberg v. Health Serv. Acquisition
Corp., 486 U.S. 847, 863–64 & nn. 10–11 (7th Cir. 1988). 2 A district court has
discretion to deny relief under Rule 60(b), and a district court's decision is
reviewed under an “extremely deferential” abuse of discretion standard. Eskridge
v. Cook County, 577 F.3d 806, 808-09 (7th Cir. 2009). “Because relief under
Rule 60(b) is ‘an extraordinary remedy and is granted only in exceptional

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A motion to alter or amend judgment filed pursuant to Rule 59(e) may only be
granted if a movant shows there was a mistake of law or fact, or presents newly
discovered evidence that could not have been discovered previously. Matter of
Prince, 85 F.3d 314 (7th Cir.1996), reh'g and suggestion for reh'g en banc denied,
cert. denied 519 U.S. 1040, 117 S.Ct. 608, 136 L.Ed.2d 534; Deutsch v.
Burlington N.R. Co., 983 F.2d 741 (7th Cir.1993).
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circumstances,’ a district court abuses its discretion only when ‘no reasonable
person could agree’ with the decision to deny relief.” Eskridge, 577 F.3d at 809,
quoting McCormick v. City of Chicago, 230 F.3d 319, 327 (7th Cir. 2000).
IV. ANALYSIS
Plaintiff asserts that the allegations in paragraphs 48 and 49 of her
complaint cure any defects the Court noted with regard to her claim for
intentional misrepresentation/fraud.

According to the plaintiff, the Court must

have “overlooked” the allegations in paragraphs 48 and 49 and reconsideration is
therefore warranted. Paragraphs 48 and 49 state as follows:
48. Defendant [The Vancouver Clinic] has accepted samples from Bayer
marketing representatives and then dispensed them to its patients. Defendant
The Vancouver Clinic has a responsibility to determine the efficacy and safety
of samples and prescriptions it provides to its patients and to determine if
there are any contraindications.
49. As a result of defendants’ claims regarding the safety and effectiveness of
YAZ, Holly Detroit began using a sample pack of Yaz provided by defendant in
March of 2007 and filled her prescription on April 24, 2007. Mrs. Detroit
used Yaz faithfully until August 6, 2008 when she began experiencing chest
pain, ultimately suffering deep vein thrombosis and pulmonary emboli.
Plaintiff was . . . using a prior generation of birth control without incident, but
was induced to change to Yaz by defendant The Vancouver Clinic.
(Doc. 1-2 ¶¶ 48-49).
The Court did not overlook or misunderstand the allegations in paragraphs
48 and 49. In denying remand, the Court fully reviewed and considered every
paragraph in plaintiff’s complaint. In fact, the Court cites to paragraph 48 of the
plaintiff’s complaint when summarizing the allegations directed against The

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Vancouver Clinic.

In addition, both paragraphs 48 and 49 were quoted and

discussed in plaintiff’s motion for remand, Bayer’s opposition to remand, and
again in plaintiff’s reply brief (Doc. 14 p. 6; Doc. 17 pp. 5-6; Doc. 23 pp. 7-8).
Accordingly, plaintiff has not identified a mistake (or any other basis for relief)
that warrants reconsideration pursuant to Rule 60(b).
Further, even if the Court were to reconsider the challenged order, the
allegations in paragraphs 48 and 49 would not alter the Court’s analysis. First, to
state a claim for intentional misrepresentation/fraud plaintiff must allege that The
Vancouver Clinic made a false representation of an existing fact. See e.g. Adams
v. King County, 192 P.3d 891, 902 (Wash. 2008).

Plaintiff contends that

paragraph 49 alleges such a statement because The Vancouver Clinic “could not
have induced plaintiff to switch to YAZ without making representations to plaintiff
about the quality and/or safety of YAZ” (Doc. 32 p. 3).

Even considering the

lenient standard the Court must apply, plaintiff’s interpretation is not reasonable.
Plaintiff has an obligation to plead facts establishing the requisite elements of her
claim. Paragraph 49 does not contain any factual representation which could
provide a basis for an allegation of fraud against The Vancouver Clinic.
Second, in addition to alleging the existence of a false statement, plaintiff
must also allege that The Vancouver Clinic had the requisite scienter or
knowledge.

Generally, to establish the scienter element for intentional

misrepresentation, a plaintiff must allege actual knowledge on the part of the
defendant. See e.g., Adams v. King County, 192 P.3d 891, 902 (Wash. 2008)
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(defendant’s knowledge of the statement’s falsity is a requisite element of fraud).
Under certain circumstances, however, the knowledge element of intentional
misrepresentation may be established by showing the speaker’s “ignorance of [the
statement’s] truth.” Cedell v. Farmers Ins. Co. of Washington, 237 P.3d 309,
314-15) (Wash. App. 2010). A collective reading of the relevant case law reveals
that a speaker who makes a false statement, without knowledge of the statement’s
truth or falsity, may be liable for intentional misrepresentation if that speaker
acted recklessly and carelessly. See Marr v. Cook, 318 P. 2d 613, 614-15 (Wash.
1957); Swanson v. Solomon, 314 P. 2d 655, 657-658 (Wash. 1957); Holland
Furnace Co. v. Korth, 262 P. 2d 772, 776 (Wash. 1953); Liner v. Armstrong
Homes of Bremerton, Inc., 579 P.2d 367, 370 (Wash. App. 1978).

Thus, to

satisfy the knowledge element for intentional misrepresentation, plaintiff must –
at a minimum – allege that The Vancouver Clinic acted recklessly and carelessly
without knowing for certain whether the statement (assuming plaintiff had alleged
that The Vancouver Clinic made a statement) was true or false.
Plaintiff contends that, given the Court’s duty to liberally construe her
complaint, the requisite knowledge can be reasonably inferred from paragraph
48. According to plaintiff, paragraph 48 establishes that “The Vancouver Clinic
either knew of the falsity, or was ignorant about the truth, of its representations to
plaintiff regarding the quality and/or safety of Yaz” (Doc. p. 3).

Once again,

plaintiff’s interpretation stretches the meaning of reasonableness. Paragraph 48
alleges a legal duty.

It does not allege any facts demonstrating that The
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Vancouver Clinic knowingly made a false statement. Nor does it allege any facts
demonstrating that The Vancouver Clinic carelessly or recklessly made a false
statement without knowledge of its truth.

In fact, the allegations in plaintiff’s

complaint negate any such conclusion – plaintiff repeatedly alleges that Bayer
concealed information regarding the safety and efficacy of YAZ from consumers
and from the medical community in general.
V. CONCLUSION
The Court did not overlook or misunderstand any of the allegations in
plaintiff’s complaint and reconsideration is not warranted. Further, nothing in
the disputed paragraphs (or anywhere in plaintiff’s complaint) can be reasonably
inferred as alleging any conduct on the part of The Vancouver Clinic that could
serve

as

a

basis

for

intentional

misrepresentation.

The

reconsideration is therefore DENIED.
So Ordered

David R. Herndon
2012.04.12 16:09:09
-05'00'
Chief Judge
United States District Court

Date: April 12, 2012

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motion

for