BENTLEY v. MERCK & CO., INC. et al

Filing 24

MEMORANDUM SIGNED BY HONORABLE HARVEY BARTLE, III ON 5/30/17. 5/30/17 ENTERED AND COPIES E-MAILED. (va, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JORJA BENTLEY
v.
MERCK & CO., INC., et al.
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ROY HAGER
v.
MERCK & CO., INC., et al.
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PHILLIP DIVERGIGELIS
v.
MERCK & CO., INC., et al.
_____________________________
RONALD BURTON
v.
MERCK & CO., INC., et al.
_____________________________
STEPHEN TSOPANIS
v.
MERCK & CO., INC., et al.
_____________________________
WANDA YOUNG
v.
MERCK & CO., INC., et al.
_____________________________

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CIVIL ACTION

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CIVIL ACTION

NO. 17-1122
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NO. 17-1331
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NO. 17-1333
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NO. 17-1334
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NO. 17-1335
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NO. 17-1336
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DOROTHY SPEARS
v.
MERCK & CO., INC., et al.
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VICKI LING
v.
MERCK & CO., INC., et al.
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DARLENE HARRIS
v.
MERCK & CO., INC., et al.
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ELIZABETH BANJACK
v.
MERCK & CO., INC., et al.
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CIVIL ACTION

NO. 17-1337
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NO. 17-1338
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NO. 17-1339
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NO. 17-1340
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MEMORANDUM
Bartle, J.

May 30, 2017
Plaintiffs from various states filed ten separate

lawsuits against Merck & Co., Inc. and Merck Sharp & Dohme Corp.
(collectively “Merck”) seeking damages for personal injuries
sustained as a result of the administration to them of Zostavax,
Merck’s live vaccine designed to prevent shingles. 1

Merck timely

1. Ann Redfield, a Merck employee, was also named as a
defendant in all of these cases. The court has found that she
was fraudulently joined as a defendant and has dismissed the
complaints as to her.
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removed these actions to this court on March 13, 2017 2 based on
diversity of citizenship and an amount in controversy in excess
of $75,000, exclusive of interests and costs.
§ 1332(a).

See 28 U.S.C.

Plaintiffs thereafter filed motions to remand these

actions to the Court of Common Pleas of Philadelphia County.
The court has denied these motions.

Before the court are the

motions of Merck under Rules 12(b)(6) and 9(b) of the Federal
Rules of Civil Procedure to dismiss Count VI of the complaints
against Merck on the ground that plaintiffs fail to state with
particularity the circumstances constituting fraud.
I.
When deciding a motion to dismiss under Rule 12(b)(6),
the court must accept as true all factual allegations in the
complaint and draw all inferences in the light most favorable to
the plaintiff.

See Phillips v. Cty. of Allegheny, 515 F.3d 224,

233 (3d Cir. 2008); Umland v. PLANCO Fin. Servs., Inc., 542 F.3d
59, 64 (3d Cir. 2008).

We must then determine whether the

pleading at issue “contain[s] sufficient factual matter,
accepted as true, to ‘state a claim for 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)).

A claim must do more than raise a “mere possibility of

2. All of the lawsuits except Bentley, C.A. No. 17-1122, were
removed on March 24, 2017. Bentley was removed to this court on
March 13, 2017.
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misconduct.”

Fowler v. UPMC Shadyside, 578 F.3d 203, 211

(3d Cir. 2009) (quoting Iqbal, 556 U.S. at 679).

Under this

standard, “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.”

Iqbal, 556 U.S. at 678.
Allegations of fraud trigger the heightened pleading

requirement of Rule 9(b) of the Federal Rules of Civil
Procedure.

In re Burlington Coat Factory Sec. Litig., 113 F.3d

1410, 1417 (3d Cir. 1997).

Rule 9(b) provides, “In alleging

fraud or mistake, a party must state with particularity the
circumstances constituting fraud.”

Fed. R. Civ. P. 9(b).

The

purpose of Rule 9(b) is to “give defendants notice of the claims
against them, provide[] an increased measure of protection for
their reputations, and reduce[] the number of frivolous suits
brought solely to extract settlements.”

In re Supreme

Specialties, Inc. Sec. Litig., 438 F.3d 256, 270 (3d Cir. 2006).
A complaint alleging fraud “must state the
circumstances of the alleged fraud with sufficient particularity
to place the defendant on notice of the ‘precise misconduct with
which [it is] charged.’”

Frederico v. Home Depot, 507 F.3d 188,

200 (3d Cir. 2007) (quoting Lum v. Bank of Am., 361 F.3d 217,
223-24 (3d Cir. 2004)).

Plaintiffs may meet this particularity

requirement by supporting their allegations “with all of the
essential factual background that would accompany the first
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paragraph of any newspaper story – that is, the who, what, when,
where and how of the events at issue.”

In re Rockefeller Ctr.

Properties, Inc. Sec. Litig., 311 F.3d 198, 216 (3d Cir. 2002)
(internal quotations omitted).

Plaintiffs must “inject[]

precision and some measure of substantiation into [the]
allegations of fraud.”

Lum, 361 F.3d at 224.

Our Court of Appeals has recognized that with respect
to allegations of corporate fraud, “plaintiffs cannot be
expected to have personal knowledge of the details of corporate
internal affairs.

Thus, courts have relaxed the [particularity]

requirement when factual information is particularly within the
defendant’s knowledge or control.”

Craftmatic Sec. Litig. v.

Kraftsow, 890 F.2d 628, 645 (3d Cir. 1989) (internal citations
omitted).

In alleging corporate fraud, “plaintiffs must

accompany their allegations with facts indicating why the
charges against defendants are not baseless and why additional
information lies exclusively within defendants’ control.”

Id.

at 646.
Count VI of the complaints alleges in conclusory terms
that defendants intentionally, willfully, and knowingly,
fraudulently represented to plaintiffs, the medical community,
the FDA, consumers, and healthcare providers that Zostavax had
been adequately tested in clinical trials and was found to be
safe and effective.

Plaintiffs aver that defendants omitted the
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true defective design of Zostavax that heightened consumers’
risk of injury and disease.

Plaintiffs further aver that the

individuals to whom the false representations were made were
unaware of the falsity of the representations.

According to the

complaints, the false representations were made for the purpose
of inducing plaintiffs’ physicians and healthcare provides to
purchase, prescribe, and administer Zostavax and to induce
plaintiffs to use Zostavax.
While we are mindful that the application of Rule 9(b)
is flexible with respect to allegations of corporate fraud,
plaintiffs make no effort to inject precision into the
complaints by pleading the who, what, when, where, and how of
the events at issue.

See In re Rockefeller, 311 F.3d at 216;

see also Lum, 361 F.3d at 223-24.

Plaintiffs baldly assert that

defendants falsely represented to unnamed individuals, on
unspecified dates, that Zostavax was safe and effective.

They

have failed to allege the date, place, time, and source of the
misrepresentations with respect to any of the plaintiffs.

They

never identify the specific misrepresentation in issue, or when
or where they occurred.

Significantly, plaintiffs have not

alleged why additional information to substantiate their general
allegations lies exclusively within the control of defendants.
See Craftmatic, 890 F.2d at 645.

Indeed, much of the

information is apparently in the possession of healthcare
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providers or persons otherwise outside of the control of
defendants.

Plaintiffs have failed to allege fraud with

sufficient particularity to put defendants on notice of the
precise misconduct with which it is charged.

Frederico, 507

F.3d at 200.
We conclude that plaintiffs have not pleaded with
particularity the circumstances constituting fraud in Count VI
against Merck as required under Rule 9(b).

Accordingly, the

motions of Merck to dismiss Count VI of the complaints will be
granted.

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