Luberda v. Purdue Frederick Corp et al

Filing 204

OPINION AND ORDER: Defendants' motion to dismiss (ECF No. 192 ) is DENIED. Signed by Honorable Bruce Howe Hendricks on 10/7/2014.(prou, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Daniel L. Luberda
as Guardian ad Litem for Daniel C. Luberda,
Plaintiff,
v.
Purdue Frederick Corp., Purdue Pharma
L.P., The Purdue Pharma Company, Purdue
Pharmaceutical Products L.P., Purdue
Pharma Technologies Inc., Purdue Pharma
of North Carolina Limited Partnership,
Purdue Pharmaceutical Laboratories Limited
Partnership, Purdue Products L.P., Purdue
Pharmaceuticals Limited Partnership,
Michael Friedman, Paul Goldenheim, M.D.,
John N. Stewart, and Russell Gasdia,
Defendants.
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OPINION AND ORDER
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This matter is before the Court on the defendants’ motion to dismiss. (ECF No.
192.) The defendants removed this product liability action from the Horry County Court of
Common Pleas on April 3, 2013. The defendants ask that the complaint be dismissed with
prejudice for failure to state claims for fraud and negligence and for failure of the plaintiff
to cure the deficiencies in the Complaint concerning the same.
STANDARD
A plaintiff’s complaint should set forth “a short and plain statement . . . showing that
the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 8 “does not require ‘detailed
factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To show that the plaintiff is “entitled to

relief,” the complaint must provide “more than labels and conclusions,” and “a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. In
considering a motion to dismiss under Rule 12(b)(6), the Court “accepts all well-pled facts
as true and construes these facts in the light most favorable to the plaintiff . . . .” Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). Notably,
“legal conclusions, elements of a cause of action, and bare assertions devoid of further
factual enhancement” do not qualify as well pled facts.
To survive a Rule 12(b)(6) motion to dismiss, a complaint must state “a plausible
claim for relief.” Iqbal, 129 S. Ct. at 1950. “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.’” Id. (quoting Twombly, 550 U.S. at 557). Stated differently, “where
the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged--but it has not ‘show[n]’—‘that the pleader is entitled
to relief.’” Id. (quoting Fed.R.Civ.P. 8(a)). Still, Rule 12(b)(6) “does not countenance . . .
dismissals based on a judge’s disbelief of a complaint’s factual allegations.” Colon Health
Centers of Am., LLC v. Hazel, 733 F.3d 535, 545 (4th Cir. 2013) (quoting Neitzke v.
Williams, 490 U.S. 319, 327 (1989)). “A plausible but inconclusive inference from pleaded
facts will survive a motion to dismiss . . . .” Sepulveda-Villarini v. Dep’t of Educ. of Puerto
Rico, 628 F.3d 25, 30 (1st Cir. 2010) (Souter, J.).

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DISCUSSION
The plaintiff in this action asserts that a prescription of OxyContin in 2004 caused
him to become an addict and led to his incarceration. The plaintiff brings causes of action
for fraud, negligence, and gross negligence. In response to the defendants’ motions, the
Honorable Bryan Harwell previously dismissed various claims and defendants and ordered
the plaintiff to re-plead his remaining claims with the particularity required by Rule 9(b) and
Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007). (ECF No. 186.) Specifically, with respect to fraud, the Court required the plaintiff
to allege facts, with the particularity required by Rule 9(b). Id. at 11. Because this is a
pharmaceutical product liability case, the Court also ordered the plaintiff to plead these
requirements as to statements made to the plaintiff’s physician, Dr. Thomas J. Chambers.
Id. With respect to the negligence claims, the Court ordered the plaintiff to plead facts
plausibly establishing that Dr. Chambers would have made a different prescribing decision
had he received an allegedly appropriate warning. Id. at 9-10. The plaintiff has now filed
a Second Amended Complaint. (ECF No. 191.) The defendants disagree that it cures the
deficiencies identified by the Court in either the fraud or negligence claims. The Court
would address each cause in turn.
I.

Fraud
The defendants first reiterate their motion that the plaintiff’s fraud claim be

dismissed. In order to prove fraud, the following elements must be shown by clear and
convincing evidence: (1) a representation; (2) its falsity; (3) its materiality; (4) either
knowledge of its falsity or a reckless disregard of its truth or falsity; (5) intent that the

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representation be acted upon; (6) the hearer's ignorance of its falsity; (7) the hearer's
reliance on its truth; (8) the hearer's right to rely thereon; and (9) the hearer's consequent
and proximate injury. Ardis v. Cox, 431 S.E.2d 267, 269 (S.C. Ct. App. 1993). Judge
Harwell previously found that, to satisfy Rule 9(b), the plaintiff must “plead with particularity
‘the time, place, and contents of the false representations, as well as the identity of the
person making the misrepresentation and what he obtained thereby.’” (Doc. 186 at 11
(quoting Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999).)
The Court found that the plaintiff’s Complaint was insufficient in this regard and gave leave
for amendment. The plaintiff contends that paragraphs 30 through 39 of the Second
Amended Complaint now satisfy this demand. The Court essentially agrees.
The plaintiff has identified the content of the fraudulent statements. (Compl. ¶ 30.)
And, the plaintiff has now specifically pled that such fraudulent statements were made
directly to the plaintiff’s prescribing physician, Dr. Thomas J. Chambers, in South Carolina.
Id. ¶¶ 28, 36. The timeframe, while not to the astrologicical pinpoint, is sufficiently implied.
Id. ¶¶ 38, 43. And, the plaintiff has averred that he relied on such fraudulent statements
as translated through Dr. Chambers. (Compl. ¶ 43.)
But, the Court previously ruled that the plaintiff was required to plead, pursuant to
the demands of the Learned Intermediary doctrine, reliance by Dr. Chambers on the
allegedly fraudulent statements (ECF No. 186 at 11). See Talley v. Danek Medical, Inc.,
179 F.3d 154 (4th Cir. 1999). The Court said specifically, “The plaintiff must plead facts in
accordance with the learned intermediary doctrine regarding the misrepresentation or
failure to disclose to Luberda's physician and the other elements of fraud including reliance
by the physician on the misrepresentations.” (ECF No. 186 at 11 (emphasis added).) The
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plaintiff was given specific leave to so conform his pleading. Id. The defendants would
argue that the plaintiff’s Second Amended Complaint, in this respect, is largely unchanged.
And, while the plaintiff has arguably not used the most express language, the sum effect
of his accusations is to contend that Dr. Chambers, over the more express written warnings
on the drug label, relied precisely on the kind of ameliorating but fraudulent representations
in prescribing OxyContin, which the plaintiff alleges and the defendants have officially
confessed. (See Compl. ¶¶ 24-28, 31, 36, 43.) That is the plain meaning of the Complaint
– that physicians, and thereby patients, were misled in their reliance on these admitted
representations. Id. Ultimately, it would be a more tortured reading of the Complaint to find
no allegation of reliance by Dr. Chambers than to find one.
But, it is certainly a close call. And, whether, as an evidentiary matter, the plaintiff
can ever establish such reliance is to be seen. At this stage, however, the Court would
allow the claim to proceed refusing to be too eager to dismiss a fairly specific claim of fraud
that does not, in its language, meaningfully prejudice the defendants’ ability to understand
what they are accused of or defend against it. If Dr. Chambers did not rely on such
representations, it will be readily established in discovery and decided at summary
judgment or in settlement.
II.

Negligence
The defendants have also renewed their motion to dismiss the plaintiff’s negligence

claim. A negligence claim consists of three elements: (1) a duty of care owed by the
defendant to the plaintiff; (2) a breach of that duty by a negligent act or omission; and (3)
damage proximately resulting from the breach. Crolley v. Hutchins, 387 S.E.2d 716, 717
(S.C. Ct. App. 1989). With respect to the pleading of that claim, the Court previously found
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one deficiency:1 “The Court agrees with the defendants that the plaintiff has not stated a
claim for negligence or gross negligence because he has not alleged that his physician
would have changed his prescribing decision had there been a different warning.” (Doc.
186 at 10.) To do so, the plaintiff must show that the undisclosed risk was sufficiently high
that it would have changed the doctor’s decision. Odom v. G.D. Searle & Co., 979 F.2d
1001, 1003 (4th Cir. 1992).
The plaintiff alleges that, in the absence of the defendants’ deficient warning, Dr.
Chambers would have: (1) “prescribed Plaintiff OxyContin in [a different] manner and
dosage;” and (2) “properly monitored” Plaintiff “subsequent to the prescription . . . .”
(Compl. ¶ 50(d).) The defendants contend that these allegations do not reflect a likelihood
of a “material” change in the doctor’s decision; are too vague; and suggest a prescribing
decision already advised by the “black box” warning provided. The Court does not believe
precise dosage levels or the details of a monitoring plan are necessary at this stage. (See
ECF No. 192 at 12.) The Court disagrees that the alleged change in the prescriptive
treatment is not material under the law as presently alleged. A lesser dosage more
carefully policed may have made all the difference. And, simply because the included black
box warning already invited the lowest effective prescription and a recommendation to
monitor does not mean that Dr. Chambers would not have additionally modified the manner
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The defendants claim there were two, and that the Court also demanded amended
allegations concerning some actual failure of the defendants to warn. The defendants have
spent significant time arguing that a warning was given in the “black box” labeling, which
indicated the pharmaceutical risks. But, the undersigned’s reading of the Order is that the
plaintiff was only required to address the issue of whether Dr. Chambers would have prescribed
differently. The undersigned would consider the Court’s ruling on this issue “the law of the
case,” and as an exercise of discretion would be constrained by the same. See City of
Charleston, S.C. v. Hotels.com, LP, 520 F. Supp. 2d 757, 774 (D.S.C. 2007). The plaintiff was
entitled to rely on this expectation in his attempted amendment.

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and degree of those items if the full extent of the drug’s effects had not been obscured by
the admitted misrepresentations about them.
The Court will allow the claim to continue.
CONCLUSION
Based on the foregoing, Defendants’ motion to dismiss (ECF No. 192) is DENIED.
IT IS SO ORDERED.
s/Bruce Howe Hendricks
United States District Judge
October 7, 2014
Florence South Carolina

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