Ratshidaho v. AstraZeneca LP et al
ORDER AND OPINION DENYING DEFENDANT ASTRAZENECA PHARMACEUTICALS LP'S AND ASTRAZENECA LP'S MOTION TO DISMISS, 32 . 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
PHARMACEUTICALS, LP, et al.,
Case No. 16-03417-CV-S-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. #32. Plaintiff’s Amended Complaint 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, Nexium 24hr,
Prilosec, and Prilosec OTC. Doc. #29. 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 claim is
barred by the statute of limitations. Doc. #32. For the reasons below, the Court denies
the motion to dismiss.
Plaintiff’s Amended Complaint (Doc. #23) names AstraZeneca Pharmaceuticals LP,
AstraZeneca LP, Wyeth Pharmaceuticals, Inc., Procter & Gamble Co., and Proctor &
Gamble Manufacturing 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.
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
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, 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).
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
Plaintiff alleges he ingested “Nexium, Nexium 24hr, Prilosec, Prilosec OTC, and
Protonix, from approximately January 2011 to 2015....” Doc. #29, ¶4. 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 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.
Plaintiff alleges Defendants failed to warn physicians and Plaintiff. Id., ¶¶ 99-101.
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., ¶¶ 24, 61, 64, 100. Plaintiff adequately pleads
Defendants’ failure to warn.
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., ¶ 55. 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
Defendants’ misrepresentations. Id., ¶¶ 56, 164. 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.
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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