Foster v. AstraZeneca Pharmaceuticals LP et al

Filing 52

ORDER AND OPINION DENYING DEFENDANT ASTRAZENECA PHARMACEUTICALS LP'S AND ASTRAZENECA LP'S MOTION TO DISMISS, 25 . Signed on 3/22/17 by District Judge Ortrie D. Smith. (Matthes Mitra, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION

RICHARD E. FOSTER,
Plaintiff,
vs.
ASTRAZENECA
PHARMACEUTICALS, LP, et al.,
Defendants.

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Case No. 16-01106-CV-W-ODS

ORDER AND OPINION DENYING DEFENDANT ASTRAZENECA
PHARMACEUTICALS LP’S AND ASTRAZENECA LP’S MOTION TO DISMISS
Pending is Defendants AstraZeneca Pharmaceuticals LP’s and AstraZeneca
LP’s Motion to Dismiss.1 Doc. #25. Plaintiff alleges he suffers from Chronic Kidney
Disease (“CKD”) as a result of Defendants’ unlawful conduct in designing, researching,
developing, testing, manufacturing, packaging, labeling, marketing, promoting,
distributing, and/or selling Protonix, Nexium, Prilosec, and Prilosec OTC. Doc. #23.
Collectively, these medications are proton pump inhibitors (“PPI”) used to treat
gastroesophageal reflux disease and other similar gastric disorders. Id. Plaintiff asserts
claims for negligence, strict products liability, breaches of express and implied warranty,
fraudulent misrepresentation and omission, and violation of the Missouri Merchandising
Practices Act. Id. Defendants move to dismiss under Federal Rules of Civil Procedure
12(b)(6), 8(a)(2), and 9(b), and argue Plaintiff’s claims are barred by the statute of
limitations. Doc. #25. For the reasons below, the Court denies the motion to dismiss.

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Plaintiff’s Amended Complaint (Doc. #23) names AstraZeneca Pharmaceuticals LP,
AstraZeneca LP, Wyeth Pharmaceuticals, Inc., and Procter & Gamble Co. as
Defendants. Although the pending motion was filed by AstraZeneca Pharmaceuticals
LP and AstraZeneca LP, the Court refers to “Defendants” as a collective group in
describing the allegations and motion to dismiss arguments.

I. STANDARD
The liberal pleading standard created by the Federal Rules of Civil Procedure
requires Aa short and plain statement of the claim showing that the pleader is entitled to
relief.@ Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Fed. R. Civ. P.
8(a)(2)). ASpecific facts are not necessary; the statement need only >give the defendant
fair notice of what the…claim is and the grounds upon which it rests.=@ Id. (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In ruling on a motion to dismiss, the
Court Amust accept as true all of the complaint=s factual allegations and view them in the
light most favorable to the Plaintiff[ ].” Stodghill v. Wellston Sch. Dist., 512 F.3d 472,
476 (8th Cir. 2008).

To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its
face. A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. The plausibility standard is
not akin to a probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully. Where a complaint
pleads facts that are merely consistent with a defendant's liability, it stops
short of the line between possibility and plausibility of entitlement to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In keeping with these principles a court considering a motion to dismiss
can choose to begin by identifying pleadings that, because they are no
more than conclusions, are not entitled to the assumption of truth. While
legal conclusions can provide the framework of a complaint, they must be
supported by factual allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.
Id. at 679. A claim is facially plausible if it allows the reasonable inference that the
defendant is liable for the conduct alleged. See Horras v. Am. Capital Strategies, Ltd.,
729 F.3d 798, 801 (8th Cir. 2013); Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594
(8th Cir. 2009).
For a fraud claim, a heightened pleading standard applies, requiring the plaintiff
to “state with particularity the circumstances constituting fraud or mistake. Malice,
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intent, knowledge, and other conditions of a person’s mind may be alleged generally.”
Fed. R. Civ. P. 9(b). This is understood to require the plaintiff plead the “who, what,
when, where, and how” of the fraud. Freitas v. Wells Fargo Home Mortg., Inc., 703 F.3d
436, 439 (8th Cir. 2013). Rule 9 is satisfied with respect to a claim of fraudulent
omission if the omitted information is identified and “how or when” the concealment
occurred. Cf. Great Plains Trust Co. v. Union Pac. R.R. Co., 492 F.3d 986, 996 (8th
Cir. 2007).

II. DISCUSSION
A. Statute of Limitations
Defendants contend Plaintiff’s claims are barred by Missouri’s five-year statute of
limitations for injuries to the person. Mo. Rev. Stat. § 516.120. Plaintiff “ingested
Protonix, Nexium, Prilosec, and Prilosec OTC from approximately January 2007 to
2013, which resulted in injuries to his kidneys including [CKD] in May of 2008.” Doc.
#23, ¶ 4. Defendants argue Plaintiff’s claims are untimely because his suit was not filed
until October 2016. Plaintiff invokes the “delayed discovery rule” under which his cause
of action accrues not at the time of injury, but when the act giving rise to the injury
becomes reasonably ascertainable. Additionally, Plaintiff alleges Defendants
fraudulently concealed risks posed by PPIs, and therefore, Plaintiff was unable to
discover the cause of his injuries.
A motion to dismiss on statute of limitations grounds should not be granted
unless the complaint establishes on its face and without exception the claim is barred.
Patel v. Pate, 128 S.W.3d 873, 877 (Mo. App. Ct. 2004). Under Missouri law, a cause
of action accrues when “the damage resulting therefrom is sustained and is capable of
ascertainment.” Mo. Rev. Stat. § 516.100. The statute of limitations does not begin to
run at the time an injury is discovered if it was impossible to ascertain the likely cause of
the injury. King v. Nashua Corp., 763 F.2d 332, 333 (8th Cir. 1985) (citing Renfroe v. Eli
Lilly & Co., 686 F.2d 642, 648 (8th Cir. 1982)). In Renfroe, the statute of limitations did
not bar the plaintiff’s claim when the medical community was unaware of a link between
the plaintiff’s cancer and her mother’s use of diethylstilbestrol when the plaintiff was
diagnosed. 686 F.2d at 647. In King, the statute of limitations barred the plaintiff’s
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claims because the medical community knew, at the time the plaintiff suffered injuries,
of a link between the plaintiff’s exposure to fumes from thermal labels and the types of
respiratory illness suffered by the plaintiff. 763 F.2d at 333.
On the face of Plaintiff’s pleadings, this is the rare circumstance contemplated in
Renfroe, and distinguished by King. According to Plaintiff’s Amended Complaint, the
medical community was unaware of a possible link between PPI use and CKD until
2014, at the earliest, with more information available in 2016.2 Doc. #23, ¶ 52. Plaintiff
also alleges he and his physician could not have known of a link between PPI use and
CKD due to Defendants’ conduct concealing the risks from the medical community. Id.,
¶¶ 50-51, 58, 95-96. Further, Plaintiff pleads tolling of the statute of limitations due to
this conduct. Id., ¶¶ 105-108. Missouri law recognizes tolling of the statute of
limitations in cases alleging fraudulent concealment. Mo. Rev. Stat. § 516.280. The
Court finds Plaintiff’s Amended Complaint is not barred by the statute of limitations on
its face. Accordingly, the Court denies Defendants’ motion to dismiss on this basis.

B. Failure to State a Claim
Defendants argue dismissal for failure to state a claim upon which relief can be
granted is appropriate because: (1) Plaintiff fails to allege dates, quantities, exact
medication consumed, and causation, (2) Plaintiff fails to detail how AstraZenca’s
warnings were inadequate, and (3) Plaintiff fails to meet Rule 9(b)’s heightened
pleading standard for fraud. The Court rejects these arguments and declines to dismiss
Plaintiff’s Amended Complaint.

(1)
Plaintiff alleges, from approximately January 2007 to 2013, he ingested
“Protonix, Prilosec, Nexium as prescribed and/or directed by his physician and also took
Prilosec OTC.” Doc. #23, ¶¶ 4, 8. Plaintiff further alleges he was diagnosed with CKD
as a result of these medications; Defendants failed to disclose the dangers of these
medications to Plaintiff’s physician, Plaintiff, and the general public; and Defendants
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Plaintiff attaches an affidavit stating he was unaware of a possible link between PPIs
and CKD until he saw a television commercial in May 2016. Doc. #29-3.
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misrepresented the safety of these medications to Plaintiff’s physician, Plaintiff, and the
general public. Plaintiff identifies the specific National Drug Code numbers for
medications marketed and sold by Defendants.
At this stage, Plaintiff need not identify the specific instances in which he
consumed a medication manufactured and sold by a Defendant. Nor is Plaintiff
required to differentiate between the cause and effect of one medication manufactured
by AstraZenca as compared to another medication manufactured by a different
Defendant. Furthermore, Plaintiff need not prove causation. Plaintiff’s Amended
Complaint adequately sets forth factual information regarding his consumption of these
drugs and plausibly suggests Plaintiff’s injuries were caused by one or more
Defendants.

(2)
Plaintiff alleges Defendants failed to warn physicians and Plaintiff. Id., ¶¶ 95-97.
Defendants contend Plaintiff fails to allege sufficient detail. As the Court explained
above, the Court will not require, at the pleading stage, Plaintiff to detail failure to warn
allegations against each specific defendant. Nor will the Court require a detailed
explanation of the adequacy or inadequacy of each warning given that Plaintiff alleges
Defendants, as a group, failed to warn of PPI risks at all. Finally, Defendants argue
Plaintiff fails to plead what Plaintiff’s physician was aware or unaware of, but Plaintiff’s
Amended Complaint includes multiple references to his physician’s lack of knowledge
as a result of Defendants’ failure to warn. Id., ¶¶ 22, 55, 58, 97, 105-107. Plaintiff
adequately pleads Defendants’ failure to warn.

(3)
The Court also rejects Defendants’ argument that Plaintiff did not adequately
plead fraud as required by Rule 9(b). Plaintiff alleges advertisements, press releases,
website publications, and other communications by Defendants indicated PPIs were
safe and effective. Id., ¶ 49. Plaintiff alleges Defendants failed to disclose the falsity of
these materials, and Defendants willfully and intentionally misrepresented the safety of
the medications to induce consumers and the medical community to act in reliance on
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Defendants’ misrepresentations. Id., ¶¶ 50, 156. Plaintiff and his physician relied on
Defendants’ misrepresentations during the time Plaintiff took PPIs, and Plaintiff suffered
CKD as a result of this reliance. Plaintiff’s Amended Complaint adequately apprises
Defendants of Plaintiff’s theory of this case as it relates to allegations of fraud and
concealment. Accordingly, the Court denies Defendants’ motion to dismiss.

III. CONCLUSION
The Court denies Defendants’ motion to dismiss.

IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: March 22, 2017

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