Teater v. Pfizer, Inc. et al

Filing 71

ORDER: After de novo review, the court ADOPTS Judge Hubel's Findings and Recommendation 67 for the reasons stated therein. Accordingly, the court GRANTS in part and DENIES in part Defendants' motion to dismiss 47 . Plaintiffs RIC O claim is dismissed with prejudice. Plaintiffs UTPA, common law fraud, and unjust enrichment claims are dismissed with leave to amend within thirty days of Plaintiffs deposition of pharmaceutical representative Tina Marie Thompson. Signed on 8/29/12 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

TERESA E.A. TEATER,

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Plaintiff,
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v.
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PFIZER, INC., and PARKE-DAVIS,
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a division of Warner-Lambert Company,
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Defendants.
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____________________________________)

Case No. 3:05-cv-00604-HU

ORDER ADOPTING
FINDINGS & RECOMMENDATION

SIMON, District Judge.
On June 27, 2012, U.S. Magistrate Judge Denis J. Hubel filed Findings and
Recommendation (Dkt. 67) in this case. Judge Hubel recommended granting in part and denying
in part Defendants’ motion to dismiss (Dkt. 47). Specifically, Judge Hubel recommended
denying the motion to dismiss as to Plaintiff’s product liability claims based on theories of
breach of warranty, negligence, and strict liability. He recommended granting the motion to
dismiss as to Plaintiff’s other claims: Plaintiff’s RICO claim would be dismissed with prejudice,
and Plaintiff’s UTPA, common law fraud, unjust enrichment claims would be dismissed with

leave to amend within thirty days of Plaintiff’s deposition of pharmaceutical representative Tina
Marie Thompson.
Under the Federal Magistrates Act, the court may “accept, reject or modify, in whole or
in part, the findings or recommendations made by the magistrate.” Federal Magistrates Act, 28
U.S.C. § 636(b)(1). If a party files objections to a magistrate’s findings and recommendations,
“the court shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” Id.; Fed. R. Civ. P. 72(b)(3);
Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). De novo review means that the court
“considers the matter anew, as if no decision had been rendered.” Dawson, 561 F.3d at 933.
Defendants timely filed objections (Dkt. 69), to which Plaintiff has responded (Dkt. 70).
Neither party objects to Judge Hubel’s recommendation regarding dismissal of the RICO claim.
Defendants object to Judge Hubel’s recommendations that their motion be denied as to the
product liability claims and that Plaintiff be allowed leave to amend her fraud-based claims. The
court has reviewed the objections and the response, as well as the Ninth Circuit’s decision in
Motus v. Pfizer Inc., 358 F.3d 659 (9th Cir. 2004). In Motus, the Ninth Circuit agreed with the
district court that, “on the facts of [that] case,” the plaintiff had failed to establish the causation
requirement of her product liability claim at the summary judgment stage. Id. at 660. Motus did
not establish a special pleading requirement for pharmaceutical product liability cases. Plaintiff
has sufficiently pleaded her product liability claims to survive a motion to dismiss. The issues
raised in Motus can be properly addressed at the summary judgment stage, at trial, or in post-trial
briefing.

OPINION & ORDER, Page 2

After de novo review, the court ADOPTS Judge Hubel’s Findings and Recommendation
(Dkt. 67) for the reasons stated therein. Accordingly, the court GRANTS in part and DENIES in
part Defendants’ motion to dismiss (Dkt. 47). Plaintiff’s RICO claim is dismissed with prejudice.
Plaintiff’s UTPA, common law fraud, and unjust enrichment claims are dismissed with leave to
amend within thirty days of Plaintiff’s deposition of pharmaceutical representative Tina Marie
Thompson.

Dated this 29th day of August, 2012.

/s/ Michael H. Simon__________
Michael H. Simon
United States District Judge

OPINION & ORDER, Page 3