Amos v. Biogen Idec, Inc. et al
Filing
29
-CLERK TO FOLLOW UP- DECISION AND ORDER granting in part and denying in part 16 Motion to Dismiss; granting in part and denying in part 19 Motion to Dismiss consistent with this Decision and Order. Signed by Hon. Michael A. Telesca on 6/25/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
GREGORY A. AMOS, in his capacity as
Administrator of the Estate of
ANDREA R. AMOS, Deceased,
Plaintiff,
13-CV-6375T
DECISION
and ORDER
v.
BIOGEN IDEC INC. and
ELAN PHARMACEUTICALS, INC.,
Defendants.
________________________________________
INTRODUCTION
Plaintiff Gregory A. Amos, the widower of Andrea R. Amos
(“Amos”) and administrator of her estate, brings this wrongful
death action against defendants Biogen Idec Inc., (“Biogen”) and
Elan Pharmaceuticals, Inc. (“Elan”) claiming that Andrea Amos died
as the direct result of taking the prescription drug Tysabri, which
was developed, marketed, and sold by the defendants. Specifically,
plaintiff claims that Amos’s use of the drug Tysabri caused her to
develop a fatal infection in her brain.
Plaintiff’s Complaint alleges nine separate causes of action
against the defendants, including claims for negligence, strict
products liability, design defect, failure to warn, negligent
misrepresentation, fraud, breach of implied warranty, violation of
the New York State General Business Law, and wrongful death.
The defendants deny plaintiff’s allegations, and move to
dismiss
five
of
the
claims
asserted
by
the
plaintiff.
Specifically, defendants move to dismiss plaintiff’s claims of
strict
liability,
design
defect,
negligent
misrepresentation,
fraud, and violation of the New York Business Law.
For the reasons set forth below, I grant defendants’ motion to
dismiss plaintiff’s design defect claims, and New York General
Business Law claim with prejudice.
dismiss
plaintiff’s
fraud
claim
I grant defendants’ motion to
without
prejudice,
and
deny
defendants’ motion to dismiss plaintiff’s strict liability claim
based on failure to warn, and plaintiff’s claim for negligent
misrepresentation.
BACKGROUND
In 2005, Andrea Amos, the wife of plaintiff Gregory Amos, was
diagnosed
with
the
disease
Multiple
Sclerosis
(“MS”).
In
September, 2006, plaintiff began taking the prescription drug
Tysabri to treat the symptoms of her disease.
Complaint,
Tysabri
is
a
“potent
According to the
immunosuppressant
drug”
that
attempts to relieve MS symptoms by inhibiting inflamation that
causes damage to the myelin sheath of MS patients.
Tysabri is
manufactured and sold by two independent drug manufacturers, Biogen
Idec
Inc.,
and
Elan
Pharmaceuticals,
working
under
a
joint
collaboration agreement.
According to the Complaint, because Tysabri is such a strong
immunosuppressant drug, it weakens the immune system of patients
taking the drug, leaving those patients vulnerable to infections
that would not ordinarily harm a person with a fully-functioning
immune system.
Plaintiff claims that Tysabri has been shown to
cause a specific, deadly infection known as Progressive Multifocal
Page -2-
Leukoencephalopathy (“PML”), that occurs when a normally benign
virus, the JC virus, that typically lays dormant in the human
kidney, migrates to the human brain because the body’s compromised
immune system is incapable of containing the virus.
According to
the Complaint, once the JC virus enters the brain, it rapidly
replicates,
often
resulting
in
impaired
cognition,
blindness, and weakness on one side of the body.
cortical
Plaintiff claims
that PML usually causes death within one to four months of the
onset of the disease.
Plaintiff took the drug Tysabri from approximately September,
2006 to sometime in mid 2011.
In May, 2011, Amos began to
experience difficulty understanding and communicating with people.
She also experienced double vision and mobility difficulties.
In
August, 2011, Amos was diagnosed with PML, and according to her
death certificate, on September 20, 2011, her death was caused by
the disease.
In 2013, plaintiff brought the instant action against the
defendants alleging, inter alia, that the defendants failed to warn
physicians and patients of the significant dangers of taking
Tysabri.
Plaintiff
claims
that
despite
the
fact
that
the
defendants knew, or should have known, that long-term use of the
drug greatly increased the risk of contracting PML, the defendants
failed to warn doctors and patients of that consequence, and
indeed, suggested that there was no correlation between long-term
use of the drug and increased risk of PML.
Plaintiff also alleges
that the defendant knew, or should have known, that patients using
Page -3-
Tysabri were more likely to develop PML if they had previously been
taking an immunosuppressant drug, and failed to warn doctors and
patients
of
such
an
increased
risk.
The
defendants’
deny
plaintiff’s allegations, and move to dismiss five of the nine
causes of action srt forth in plaintiff’s Complaint.
DISCUSSION
I.
Standard for Motion to Dismiss
In reviewing a motion to dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, the Court must “accept...all
factual allegations in the complaint and draw...all reasonable
inferences in the plaintiff’s favor.” See Ruotolo v. City of New
York, 514 F.3d 184, 188 (2d Cir.2008) (internal quotation marks
omitted). In order to withstand dismissal, the complaint must plead
“enough facts to state a claim to relief that is plausible on its
face.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct.
1955, 1974 (2007) (disavowing the oft-quoted statement from Conley
v. Gibson, 355 U.S. 41 (1957), that “a complaint should not be
dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief”).
“While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a plaintiff’s
obligation to provide the grounds of his entitlement to relief
requires
more
than
labels
and
conclusions,
and
a
formulaic
recitation of the elements of a cause of action will not do.” See
id.
at
1965
(internal
quotation
marks
Page -4-
omitted).
Moreover,
conclusory allegations are not entitled to any assumption of truth,
and therefore, will not support a finding that the plaintiff has
stated a valid claim.
Hayden v. Patterson, 594 F.3d 150, 161
(2d Cir., 2010). Thus, “at a bare minimum, the operative standard
requires the ‘plaintiff [to] provide the grounds upon which his
claim rests through factual allegations sufficient to raise a right
to relief above the speculative level.’” See Goldstein v. Pataki,
516 F.3d 50, 56-57 (2d Cir., 2008) (quoting Twombly, 127 S.Ct. at
1974).
Defendants move to dismiss five causes of action asserted by
the plaintiff.
Defendants move to dismiss plaintiff’s claims for
design defect (set forth in Counts Two and Three of the Complaint)
on
grounds
that
those
claims
are
preempted
by
federal
law.
Defendants move to dismiss plaintiff’s claim of strict liability
for failure to warn (set forth in Count Two of the Complaint) on
grounds that plaintiff has failed to properly allege such a cause
of action.
Defendants move to dismiss plaintiff’s claims of
negligent misrepresentation and fraud (set forth in Counts Five and
Six of the Complaint respectively), on grounds that plaintiff has
failed to state those claims with particularity as required by
Rule 9(b) of the Federal Rules of Civil Procedure (“Rule 9(b)”).
Finally, defendants claim that plaintiff’s cause of action under
the New York State General Business Law (set forth in Count Eight
of the Complaint) fails to state a claim because the plaintiff has
failed to establish that the defendants engaged in a “consumer
oriented” trade practice as required under that law.
Page -5-
II.
Design Defect
Plaintiff claims that Tysabri was not reasonably safe for its
intended use, and therefore, was defectively designed.
alleges
two
separate
causes
of
action
based
on
Plaintiff
the
alleged
defective design of Tysabri, one sounding in strict liability, and
the other sounding in negligence.
Under New York law, claims of design defect sounding in
negligence are “functionally synonymous” to claims for design
defect sounding in strict liability, and as a result, the claims
are analyzed identically. Cavanagh v. Ford Motor Co., 13-CV-4584,
2014 WL 2048571 (E.D.N.Y. May 19, 2014).
In the instant case,
defendants move to dismiss plaintiff’s design defect claims on
grounds that such claims are preempted by federal law.
In support
of their argument, defendants cite the recent United States Supreme
Court case of Mutual Pharmaceutical Co., Inc. v. Bartlett, which
held that state-law causes of action for the alleged defective
design of a drug regulated and approved by the FDA were preempted
by federal law.
Specifically, the Court held that because a drug
manufacturer could not simultaneously comply with FDA requirements
mandating the specific design of an approved drug and state law
requirements mandating that the design be altered, the state-law
requirements were preempted by federal law.
Co.,
Inc.
v.
Bartlett,
570
U.S.
Mutual Pharmaceutical
,
133
S.Ct.
2466,
2477(2013)(“Because it is impossible for [plaintiff] and other
similarly situated manufacturers to comply with both state and
federal law, [the state’s] warning-based design-defect cause of
Page -6-
action is pre-empted with respect to FDA-approved drugs sold in
interstate commerce. Mutual. Pharmaceutical. Co., Inc., 133 S. Ct.
at 2477.
The plaintiffs concede that design defect claims are preempted
under federal law, and have agreed to withdraw those claims without
prejudice. Because, however, such claims are preempted as a matter
of law, I grant defendants’ motion to dismiss plaintiff’s claims of
design defect set forth in Counts II and III of the Complaint with
prejudice.
III. Strict Liability
In Count Two of the Complaint, plaintiff alleges that the
defendants failed to adequately warn Amos of the risks of taking
Tysabri, and are therefore strictly liable for the injuries she
suffered as a result of taking Tysabri.
Under New York law, a
plaintiff may assert a claim for strict products liability on
grounds that a product is “defective because of a
manufacturing process . . .
mistake in the
or because of an improper design . .
. . or because the manufacturer failed to provide adequate warnings
regarding the use of the product.
59 N.Y.2d 102, 106-07 (1983).
Voss v. Black & Decker Mfg. Co.,
To state a prima facie case of
liability on the basis of a defendant’s failure to warn, the
plaintiff must establish that “(1) the manufacturer had a duty to
warn; (2) the manufacturer breached the duty to warn in a manner
that rendered the product defective, i.e., reasonably certain to be
dangerous;
(3)
the
defect
was
the
proximate
cause
of
the
plaintiff's injury; and (4) the plaintiff suffered loss or damage.”
Page -7-
Bee v. Novartis Pharm. Corp., 12-CV-1421, 2014 WL 1855632 (E.D.N.Y.
May 9, 2014) (citing McCarthy v. Olin Corp., 119 F.3d 148, 156
(2d Cir.1997).
Defendants move to dismiss plaintiff’s strict liability claim
alleging
failure
to
warn
on
grounds
that
he
has
sufficiently allege facts supporting such a claim.
failed
to
Although the
defendants have moved to dismiss plaintiff’s cause of action for
strict liability based on defendants’ alleged failure to warn, the
defendants have not sought dismissal of plaintiff’s cause of action
for negligent failure to warn as set forth in Count Four of the
Complaint.
Under New York law, however, the elements of a cause of
action for failure to warn based on strict liability or negligence
are identical.
Bee, 2014 WL 1855632 at *10 (“The[] prima facie
elements of a failure to warn claim remain the same under New York
law regardless of whether they sound in negligence or strict
liability”).
Accordingly,
by
failing
to
seek
dismissal
of
plaintiff’s claim for negligent failure to warn, defendants have
implicitly conceded that plaintiff has sufficiently alleged a cause
of action for negligent failure to warn.
If, indeed plaintiff has
sufficiently alleged a cause of action for negligent failure to
warn, he will have also stated a cause of action for strict
liability based on a failure to warn.
Regardless
of
the
defendants’
inconsistent
position with
respect to plaintiff’s allegations of defendants failure to warn,
I find that plaintiff has stated a plausible claim for strict
liability
based
on
the
defendants’
Page -8-
alleged
failure
to
warn.
Plaintiff has satisfactorily alleged that the defendants had a duty
to warn of potential dangerous risks of taking Tysabri.
Plaintiff
has further alleged that by failing to warn both doctors and
consumers that the risk of contracting PML increased the longer a
patient
had
been
taking
Tysabri,
or
that
patients
who
had
previously taken immunosuppressant drugs were at a higher risk for
developing PML once they started taking Tysabri, the defendants
rendered Tysabri to be dangerous to consumers.
See Complaint at
¶ 34, 47. Plaintiff has additionally alleged that because Amos was
unaware of risks that should have been disclosed to her, she
continued to take Tysabri, and died as a result of taking the drug.
Such allegations state a claim for liability based on a failure to
warn.
Accordingly, I deny defendant’s motion to dismiss that
portion of Count Two of the Complaint alleging that defendants are
liable to the plaintiff for their alleged failure to warn of the
dangerous consequences of taking Tysabri.
IV.
Negligent Misrepresentation
Plaintiff alleges that the defendants failed to disclose
information they knew of, or reasonably should have known of,
concerning
the
dangers
of
taking
Tysabri,
and
as
a
result,
misrepresented the risks of using the drug, all of which resulted
in harm to Amos.
Defendants move to dismiss this claim on grounds
that plaintiff has failed to plead this cause of action with
particularity as required by Rule 9(b) of the Federal Rules of
Civil Procedure.
Page -9-
I find, however, that plaintiff has sufficiently stated a
claim for negligent misrepresentation.
To state a claim for
negligent misrepresentation under New York law, a plaintiff must
allege that “(1) the parties stood in some special relationship
imposing a duty of care on the defendant to render accurate
information,
(2)
the
defendant
negligently
provided incorrect
information, and (3) the plaintiff reasonably relied upon the
information given.” LBBW Luxemburg S.A. v. Wells Fargo Sec. LLC,
12
CIV.
7311,
2014
WL
1303133
at
*17
(S.D.N.Y.
Mar.
31,
2014)(quoting Saltz v. First Frontier, LP, 782 F.Supp.2d 61, 82
(S.D.N.Y., 2010) (internal citations omitted), aff'd, 485 Fed.Appx.
461 (2d Cir. 2012).
Here, the plaintiff has alleged that Amos, as a user of
Tysabri, stood in a “special relationship” with the defendants, the
manufacturers and distributors of the drug. In determining whether
or not parties stand in a “special relationship,” courts consider
three factors: “whether the person making the representation held
or appeared to hold unique or special expertise; whether a special
relationship of trust or confidence existed between the parties;
and
whether
the
speaker
was
aware
of
the
use
to
which
the
information would be put and supplied it for that purpose.” Suez
Equity Investors, L.P. v. Toronto–Dominion Bank, 250 F.3d 87, 103
(2d Cir.2001); Williamson v. Stryker Corp., 12 CIV. 7083, 2013 WL
3833081 (S.D.N.Y. July 23, 2013).
In this case, plaintiff has
sufficiently alleged that the defendants held a unique and special
expertise with respect to the drug Tysabri, that Amos, as a user of
Page -10-
Tysabri, had a special relationship of trust with the defendants,
and that the defendants were aware that their public statements
regarding the risks and dangers of Tysabri would be relied on by
users of the drug. See e.g. Hughes v. Ester C Co., 930 F. Supp. 2d
439,
475
(E.D.N.Y.
2013)(vitamin
manufacturer
held
special
relationship with vitamin consumers where manufacturer portrayed
itself as holding special expertise with regard to the purported
health benefits of vitamins it sold).
Plaintiff has also sufficiently alleged that the defendants
negligently provided incorrect information about the drug.
For
example, the plaintiff has alleged that although the defendants
knew or should have known that using Tysabri on a long term basis
could increase the risk of contracting PML, the defendants failed
to disclose such information to Amos, and in fact, alleged there
was no correlation between long-term use of Tysabri and increased
risk of developing PML.
alleged
that
Amos
Complaint at ¶ 34.
relied,
to
Finally, plaintiff has
her
detriment,
on
the
misrepresentations made by the defendants.
The defendants contend that plaintiff has failed to plead this
cause of action with particularity, and therefore, the claim must
be
dismissed
under
Rule
9(b)
of
the
Federal
Rules
of
Civil
Procedure. Rule 9(b) provides that “[i]n alleging fraud or mistake,
a
party
must
state
with
constituting fraud or mistake”
particularity
the
circumstances
Fed. R. Civ. P. 9(b).
Although
many district courts in the Second Circuit have held that Rule 9(b)
applies to claims of negligent misrepresentation asserted under New
Page -11-
York law, the Second Circuit Court has explicitly declined to make
such a finding.
As stated by the court in Eternity Global Master
Fund Ltd. v. Morgan Guar. Trust Co. of N.Y. 375 F.3d 168, 188
(2d Cir. 2004), “Rule 9(b) may or may not apply to a state law
claim for negligent misrepresentation. District court decisions in
this Circuit have held that the Rule is applicable to such claims
. . . . but this Court has not adopted that view . . . .”
Here, I
find that plaintiff’s claims are not subject to the particularity
requirements of Rule 9(b).
Among the nine causes of action set forth in the Complaint,
plaintiff has alleged distinct causes of action for fraud and
negligent misrepresentation. There is no question that plaintiff’s
cause
of
action
for
fraud
is
subject
to
the
particularity
requirements of Rule 9(b). Plaintiff’s negligent misrepresentation
claim, however, does not rely on a showing of fraud or mistake, and
accordingly, it would be improper to impose the heightened pleading
standard for fraud claims where fraud is not an element of the
claim being alleged.
See In re Rezulin Products Liab. Litig., 133
F. Supp. 2d 272, 285 (S.D.N.Y. 2001)(“allegations of intent to
defraud or deliberate wrongdoing are not essential” to a claim of
negligent
misrepresentation,
necessarily
applicable
to
and
such
therefore
claims.”)
“Rule
Because
9(b)
is
not
plaintiff’s
negligent misrepresentation claim does not rely on proof of fraud,
I decline to impose a heightened pleading standard on plaintiff’s
claim of negligent misrepresentation, and deny defendant’s motion
to dismiss that claim.
Page -12-
V.
Fraud
Plaintiff alleges that the defendants fraudulently concealed
information
regarding
the
dangers
of
Tysabri,
and
knowingly
misrepresented to the public that Tysabri was safe for its intended
use.
Defendants move to dismiss this claim on grounds that
plaintiff
has
failed
to
plead
his
claims
of
fraud
with
particularity, as required by Rule 9(b). I find that plaintiff has
failed to
state
accordingly,
I
his
grant
claims
of
fraud
defendant’s
with
motion
particularity, and
to
dismiss
without
prejudice.
As stated above, Rule 9(b) requires that claims of fraud be
pled with particularity.
To satisfy this requirement, the Second
Circuit has held that a complaint must (1) adequately specify the
statements
that
plaintiff
claims
were
false
and
misleading;
(2) give particulars as to the manner in which plaintiff contends
the statements were fraudulent; (3) state when and where the
statements were made; and, (4) identify those responsible for the
statements.
In
Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989).
the
instant
case,
plaintiff
has
made
only
general
allegations of fraudulent conduct, and the majority of plaintiff’s
averments
regarding
the
“information and belief.”
alleged
fraud
are
made
only
upon
Typically, allegations of fraud that
rest on claims made upon “information and belief” will fail to
satisfy Rule 9(b)’s requirement of particularity.
DiVittorio v.
Equidyne Extractive Indus., Inc., 822 F.2d 1242, 1247 (2d Cir.
1987)(“Rule 9(b) pleadings cannot be based upon information and
Page -13-
belief.”).
However, where the relevant facts “‘are peculiarly
within the opposing party's knowledge,’ and the plaintiff has no
access
to
those
facts”,
courts
will
not
require
adherence to Rule 9(b)’s particularity requirement.
unflagging
U.S. ex rel.
Kester v. Novartis Pharm. Corp., 11 CIV. 8196 CM, 2014 WL 2619014
at *6 (S.D.N.Y. June 10, 2014) (quoting Boykin v. Keycorp, 521 F.3d
202, 215 (2d Cir.2008).
Nevertheless, a plaintiff alleging fraud
must still provide detailed allegations of the alleged fraud, and
cannot rely on conclusory or speculative allegations.
In the instant case, I find that plaintiff’s allegations of
fraud have not been alleged with sufficient particularity.
example,
although
plaintiff
alleges
that
the
defendants
For
paid
ghostwriters to author articles favorable to the use of Tysabri, no
such article is identified.
Similarly, although the plaintiff
alleges that the defendants knew of and suppressed information
regarding
12 suspected
cases
of
PML
linked
to
Tysabri, that
allegation is made only on information and belief, and no further
details are alleged. Plaintiff further claims that defendants made
misrepresentations in advertisements, website statements, written
and oral information provided to patients and doctors and other
marketing
materials,
but
fails
to
identify
any
such
misrepresentation, and fails to explain why such misrepresentations
were fraudulent.
particularity
These
required
by
general
Rule
averments
9(b),
and
of
fraud
therefore,
defendants’ motion to dismiss plaintiff’s fraud claims.
Page -14-
lack the
I
grant
Complaints dismissed under Rule 9(b), however “are ‘almost
always’ dismissed with leave to amend.”
Luce v. Edelstein, 802
F.2d 49 (2nd Cir. 1986)(citing 2A J. Moore & J. Lucas, Moore’s
Federal
Practice,
Communications,
¶
Ltd.
9.03
at
v.
9-34
Burke,
(2nd
522
ed.
1986));
F.Supp.2d
509,
Apace
523
(W.D.N.Y.2007) (Larimer, D.J.) ( “dismissal under Rule 9(b) is
usually
without
prejudice”)
(quoting
In
re
Time
Warner
Inc.
Securities Litigation, 9 F.3d 259 (2d Cir.1993));
Ozbakir v.
Scotti, 764 F. Supp. 2d 556, 574 (W.D.N.Y. 2011).
Accordingly,
defendants’ motion to dismiss plaintiff’s fraud claim is dismissed
without prejudice.
VI.
New York General Business Law Section 349
Section 349 of the New York General Business Law provides
generally that it is unlawful to engage in any deceptive act or
practice with respect to the transaction of business in New York
State.
N.Y. Gen Bus. L § 349(a).
To state a claim for deceptive
trade practices under this section, a plaintiff must establish
that: (1) the defendant engaged in an act that was directed at
consumers; (2) the act engaged in was materially deceptive or
misleading; and (3) the plaintiff was injured as a result of the
defendant’s act.
Oswego Laborers Local 214 Pension Fund v. Marine
Midland Bank N.A., 85 N.Y.2d 20, 25 (1995); Stutman v. Chem. Bank,
95 N.Y.2d 24, 29, 709 N.Y.S.2d 892, 731 N.E.2d 608 (2000).
In the instant case, plaintiff alleges that the defendants
deceived consumers by concealing information about the dangers of
taking Tysabri, and that Amos died as a result of the defendants
Page -15-
deceptive
practices.
I
find,
however,
that
because
a
drug
manufacturer’s duty to warn of a drug’s side effects runs to the
doctor prescribing the drug, and not to the user of the drug, the
issuance of drug warnings, for purposes of Section 349, is not an
act directed at consumers, and therefore any alleged deceptive act
related to the issuance of those warnings is not a “consumer
oriented” act actionable under Section 349 of the New York General
Business Law.
It is uncontroverted that Section 349 of the New York General
Business Law prohibits deceptive practices that are directed to
consumers.
“[A]s a threshold matter, plaintiffs claiming the
benefit of section 349 . . . must charge conduct of the defendant
that is consumer-oriented.”
Fund, 85 N.Y.2d at 25.
Oswego Laborers' Local 214 Pension
It is further uncontroverted that under New
York law, drug manufactures do not owe consumers a duty to warn of
a drug’s risks, but instead owe such a duty to the prescribers of
that drug.
Bee v. Novartis Pharm. Corp., 12-CV-1421, 2014 WL
1855632 at *11 (E.D.N.Y. May 9, 2014)(“In the prescription drug
context, courts have recognized that a manufacturer's duty to warn
extends to a patient's doctor (and not to the patient himself) . .
. .”).
This is because unlike other consumer products that may be
freely purchased by consumers, prescription drugs may only be
purchased by pursuant to a prescription issued by a medical doctor.
Thus,
New
York
state
has
adopted
the
“informed
intermediary
doctrine,” which provides that the duty to warn of a drugs side
effects and risks runs to the doctor prescribing the drug, and not
Page -16-
to patient taking the drug. Lindsay v. Ortho Pharm. Corp., 637 F.2d
87, 91 (2d Cir. 1980)(“Except where FDA regulations otherwise
provide, the manufacturer's duty is to warn the doctor, not the
patient.”).
Accordingly,
because
the
defendants’
alleged
deceptive practice of failing to provide adequate warnings by
concealing information is not, as a matter of law, a practice
directed at consumers, plaintiff has failed to allege a consumeroriented practice cognizable under Section 349 of the New York
General Business Law. Such a finding, of course, does not preclude
the plaintiff from proceeding with his claim that defendants failed
to adequately warn Amos’ doctors of the risks of taking Tysabri and
are therefore strictly liable, or liable as a result of negligence,
for their alleged failure to warn.
CONCLUSION
For the reasons set forth above, I grant defendants’ motion to
dismiss plaintiff’s design defect claims, and New York General
Business Law Claim with prejudice.
dismiss
plaintiff’s
fraud
claim
I grant defendants’ motion to
without
prejudice,
and
deny
defendants’ motion to dismiss plaintiffs strict liability claim
based
on
failure
to
warn,
and
claim
for
negligent
misrepresentation.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:
Rochester, New York
June 25, 2014
Page -17-
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