Pease et al v. Abbott Laboratories, Inc.

Filing 23

MEMORANDUM. Signed by Judge James K. Bredar on 1/16/13. (dass, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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ELIZABETH PEASE et al.,

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Plaintiffs

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v.

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ABBOTT LABORATORIES, INC.,
Defendant
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CIVIL NO. JKB-12-1844

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MEMORANDUM
I. Background
Elizabeth Pease and her husband, Ronald Pease, filed this lawsuit against Abbott
Laboratories, Incorporated, alleging Abbott was strictly liable for and negligent in relation to the
manufacture, design, and marketing of Abbott’s brand-name prescription drug, Humira.
(Compl., ECF No. 1.) The Peases allege that Mrs. Pease suffered injury from taking Humira and
seek $10 million in damages. Their complaint has eleven counts, and Abbott has filed a motion
to dismiss as to two of those counts, specifically, Count II and Count IX, for failure to state a
claim. (ECF No. 8.) The Court has considered the motion, Plaintiffs’ response in opposition
(ECF No. 18), and Abbott’s reply (ECF No. 21). No hearing is necessary. Local Rule 105.6.
The motion will be granted.
II. Standard of Dismissal for Failure to State a Claim
A complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility exists “when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. An inference of a mere
possibility of misconduct is not sufficient to support a plausible claim. Id. at 679. As the
Twombly opinion stated, “Factual allegations must be enough to raise a right to relief above the
speculative level.” 550 U.S. at 555. “A pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’ . . . Nor does a complaint
suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557). Although when considering a motion to
dismiss a court must accept as true all factual allegations in the complaint, that principle does not
apply to legal conclusions couched as factual allegations. Twombly, 550 U.S. at 555.
III. Analysis
A. Count II – Strict Liability for Manufacturing Defect
Specifically with respect to this claim, Plaintiffs allege that Abbott is responsible for the
manufacture of Humira (Compl. ¶ 8), that the product “was in a defective condition” when it left
Abbott’s control (id. ¶ 46), that the product “was unreasonably defectively manufactured”
because it “unreasonably increased” the risk of various infections and side effects (id. ¶ 48), and
that it reached Mrs. Pease “without any substantial change in its condition” (id. ¶ 49). When one
strips away the conclusional labels, the factual allegations amount to no more than Plaintiffs’
saying that the product left Abbott’s control and reached Mrs. Pease without substantial change
in its condition. Plaintiffs have failed to plead specific factual content that allows the Court to
conclude that Abbott defectively manufactured Humira. Abbott’s motion to dismiss will be
granted as to Count II.

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B. Count IX – Violation of Maryland’s Consumer Protection Act
This count is brought pursuant to Md. Code Ann., Com. Law § 13-101 et seq., popularly
known as the Maryland Consumer Protection Act (“MCPA”).

In it, Plaintiffs allege the

following:
1. “Abbott engaged in unfair and deceptive practices in the promotion,
marketing and warning of its product Humira.” (Compl. ¶ 108.)
2. “Abbott engaged in deceptive practices by engaging in false and
misleading advertising which omitted material facts with the intent that
Mrs. Pease and consumers rely upon these representations as complete and
accurate, including indicating that Humira was safe for use concomitantly
with methotrexate and/or corticosteroids, and omitting that Humira had
reportedly caused central nervous system problem [sic] due to
autoantibodies or demyelination, and encephalitis and/or meningitis in
patients. Additionally, Abbott falsely and deceptively marketed Humira
as a safer alternative to other anti-TNF inhibitor drugs, i.e., its
competitors.” (Id. ¶ 109.)
3. “As a direct and proximate cause of these deceptive practices, Plaintiffs
have suffered economic and non-economic damages including pain and
suffering, mental anguish, past and future medical bills, loss of earning
capacity, depression and short and long term memory loss.” (Id. ¶ 110.)
The MCPA permits anyone to “bring an action to recover for injury or loss sustained by
him as the result of a practice prohibited by this title.” § 13-408(a). Plaintiffs’ allegations fail to
satisfy the causation standard of § 13-408. See Galola v. Snyder, 613 A.2d 983, 985 (Md. 1992)
(not enough for tenant to show unfair and deceptive trade practices by landlord; tenant must also
show “actual loss or injury caused by the deceptive trade practices”); Citaramanis v. Hallowell,
613 A.2d 964, 968 (Md. 1992) (same); Golt v. Phillips, 517 A.2d 328, 333 (Md. 1986) (“in
determining the damages due the consumer, we must look only to his actual loss or injury caused
by the unfair or deceptive trade practices” (emphasis added)). It is not enough for Plaintiffs to
allege conduct consistent with a deceptive trade practice, presuming their allegations are
sufficient on that point; it is essential for them to allege specific facts to permit the Court to
conclude their claimed injuries were caused by the alleged deceptive trade practice. They have
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failed to carry this burden of pleading. In addition, because this count is pled under a theory of
fraud, Plaintiffs have not satisfied the particularity requirement of Federal Rule of Civil
Procedure 9(b).
Abbott also argues that the MCPA is inapplicable to Abbott’s sale of prescription drugs
because prescription drugs are not “consumer goods” under the MCPA and because the MCPA’s
professional services exemption applies to it. This argument is persuasive and serves as an
alternative basis for the Court’s dismissal of Count IX. In Hogan v. Md. State Dental Ass’n, 843
A.2d 902 (Md. Ct. Spec. App. 2004), the Maryland Court of Special Appeals concluded that
dental fillings were not consumer goods under the MCPA, which defines them as goods “which
are primarily for personal, household, family, or agricultural purposes.” 843 A.2d at 906 (citing
§ 13-101(d)). The court reasoned that dental fillings are not purchased by consumers as a good
but are selected and used by a practitioner as part of a professional service, and the MCPA
expressly exempts professional services rendered by medical or dental practitioners.
§ 13-104(a). Similarly, the Humira used by Mrs. Pease was selected by her physician and
prescribed for her, not as a consumer good, but as part of her course of medical treatment. Thus,
this would seem to fit into the statutory exemption. As well, the section authorizing an action for
damages, § 13-408, also includes an exclusion that is pertinent:
Notwithstanding any other provision of this section, a person may not bring an
action under this section to recover for injuries sustained as a result of the
professional services provided by a health care provider, as defined in § 3-2A-01
of the Courts Article.
§ 13-408(d). This exclusion is worded broadly and is not restricted to actions against health care
providers.

Instead, it bars an action “to recover for injuries sustained as a result of the

professional services provided by a health care provider.” The professional services provided by
Mrs. Pease’s physician included his prescribing certain medicines for her, and her injuries were

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allegedly sustained as a result of her using one of those medicines. This would seem to fit the
statutory exclusion. For all of the foregoing reasons, Count IX will be dismissed.
C. Request to Amend Complaint
Plaintiffs have alternatively moved for leave to amend the complaint with regard to
Count II to “provide a more definitive statement of the facts and allegations.” (Pls.’ Opp. 1 &
Supp. Mem. 5, ECF No. 18.) Plaintiffs’ request, which is devoid of specific factual allegations
that would cure the defects noted in Count II, falls short of procedural requisites for obtaining
leave to amend a complaint, Local Rule 103.6, and will be denied without prejudice.
IV. Conclusion
By separate order, Counts II and IX will be dismissed, and Plaintiffs’ request for leave to
amend their complaint will be denied without prejudice. An additional order will set this matter
in for a scheduling conference.
DATED this 16th day of January, 2013.

BY THE COURT:

/s/
James K. Bredar
United States District Judge

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