We’ve been critical of the non-management of pleading issues in the Nuvaring MDL (see here).
We’re not going there again today. Rather, we’re discussing how these issues can be handled – even if there’s not technically an MDL.
Kudos to New Jersey District Court Judge Freda Wolfson, who is handling consolidated (non-MDL) litigation concerning the drug Plavix. She had 24 individual actions from sixteen states all alleging injury from the same drug. Taking this dilemma by the horns, Judge Wolfson refused to allow plaintiffs to get away with vaguely pleaded claims by obscuring them in a legal thicket of multiple different jurisdictions’ consumer fraud and negligent misrepresentation causes of action.
See: Hall v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121057 (D.N.J. Dec. 30, 2009) (applying Florida law); Begley v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121058 (D.N.J. Dec. 30, 2009) (applying Illinois law); Bunting v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121059 (D.N.J. Dec. 30, 2009) (applying Colorado law); Smith v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121062 (D.N.J. Dec. 30, 2009) (applying Pennsylvania law); Barge v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121080 (D.N.J. Dec. 30, 2009) (applying Georgia law); Robinson v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121082 (D.N.J. Dec. 30, 2009) (applying Maryland law); Moscinski v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121084 (D.N.J. Dec. 30, 2009) (applying Wisconsin law); Solomon v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121092 (D.N.J. Dec. 30, 2009) (applying Texas law); Gonzalez v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121093 (D.N.J. Dec. 30, 2009) (applying New York law); Money v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121094 (D.N.J. Dec. 30, 2009) (applying Oklahoma law); Cooper v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121095 (D.N.J. Dec. 30, 2009) (applying Alabama law); Adkins v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121096 (D.N.J. Dec. 30, 2009) (applying Tennessee law); Mattson v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121114 (D.N.J. Dec. 30, 2009) (applying California law); Mayberry v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121115 (D.N.J. Dec. 30, 2009) (applying Mississippi law); Street v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121120 (D.N.J. Dec. 30, 2009) (applying Ohio law); Carr-Davis v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121155 (D.N.J. Dec. 30, 2009) (applying Missouri law).
As you might think, a lot of water went under the bridge to reach this point. Between October 2006 and March 2007, 24 individual cases were filed against Bristol-Myers Squibb and Sanofi-Aventis about the drug Plavix. The plaintiffs, who were from all over the United States (but not from New Jersey), invoked diversity and asserted claims under, of all things, New Jersey law.
The defendants moved to dismiss on a bunch of grounds, including extraterritoriality and preemption. The court held these motions in abeyance twice – first to permit the New Jersey Supreme Court to rule on Rowe v. Hoffmann-LaRoche, 189 N.J. 615 (2007) (our prior post here), and International Union of Operating Engineers v. Merck, 192 N.J. 372 (2007) (our prior post here), and then again to await Levine v. Wyeth, __ U.S. __, 129 S.Ct. 1187 (2009) (one of many of our prior posts here).
The plaintiffs won Levine, but lost Rowe and IUOE. That meant they could sue, but not under New Jersey law (which wasn’t extraterritorial, and didn’t follow “principal place of business” as a choice of law rule).
Following these respective decisions, 23 of the 24 original plaintiffs filed amended complaints – now asserting claims under the diverse laws of their states of residence: Florida (2); Illinois (2); Pennsylvania (1); Colorado (1); Wisconsin (1); Maryland (1); Georgia (1); Texas (1); California (1); Mississippi (2); Alabama (1); Tennessee (1); New York (1); Oklahoma (1); Ohio (5); and Missouri (1).
In 16 opinions issued on the eve of the turn of the year, Judge Wolfson painstakingly went down the laws of all sixteen states point by point, and addressed the adequacy of the pleadings under Fed. R. Civ. P. 8 and 9 as to each of these 16 states. Applying our favorite non-preemption cases, Twombly and Iqbal (see our many posts here), the court found that plaintiffs’ allegations regarding generalized and allegedly deceptive statements, along with an allegation of injury, were insufficient to show entitlement to relief. Because each plaintiff simply alleged, in conclusory fashion and without specific factual support, that the alleged deception caused his or her injury – or that he or she “justifiably relied” upon the deception – almost each count upon which defendants moved was dismissed. This failure of pleading – the “missing link” – required, under applicable precedent, dismissal of the following claims: the Florida plaintiffs’ Deceptive Unfair Trade Practices Act and negligent misrepresentation claims, Hall, 2009 U.S. Dist. Lexis 121057; the Illinois plaintiffs’ Consumer Fraud Act claims, Begley, 2009 U.S. Dist. Lexis 121058; the Colorado plaintiff’s Consumer Protection Act and negligent misrepresentation claims, Bunting, 2009 U.S. Dist. Lexis 121059; the Pennsylvania plaintiff’s Unfair Trade Practices and Consumer Protection law and negligent misrepresentation claims, Smith, 2009 U.S. Dist. Lexis 121062; the Maryland plaintiff’s Consumer Protection Act and negligent misrepresentation claims, the Georgia plaintiff’s Fair Business Practices Act claim, Barge, 2009 U.S. Dist. Lexis 121080; Robinson, 2009 U.S. Dist. Lexis 121082; the Wisconsin plaintiff’s Deceptive Trade Practices Act and negligent misrepresentation claims, Moscinski, 2009 U.S. Dist. LEXIS 121084; the Texas plaintiff’s Deceptive trade Practices Act and negligent misrepresentation claims, Solomon, 2009 U.S. Dist. Lexis 121092; the New York plaintiff’s negligent misrepresentation claim, Gonzalez, 2009 U.S. Dist. Lexis 121093; the Oklahoma plaintiff’s Consumer Protection Act and negligent misrepresentation claims, Money, 2009 U.S. Dist. Lexis 121094; the Alabama plaintiff’s Deceptive Trade Practices Act and negligent misrepresentation claims, Dempsey, 2009 U.S. Dist. Lexis 121095; the Tennessee plaintiff’s Consumer Protection Act and negligent misrepresentation claims, Adkins, 2009 U.S. Dist. Lexis 121096; the California plaintiff’s Consumer Legal Remedies Act and negligent misrepresentation claims, Mattson, 2009 U.S. Dist. Lexis 121114; the Mississippi plaintiffs’ Consumer Protection Act and negligent misrepresentation claims, Mayberry, 2009 U.S. Dist. Lexis 121115; and the Ohio plaintiffs’ Consumer Sales Practices Act and negligent misrepresentation claims, Street, 2009 U.S. Dist. Lexis 121120; and the Missouri plaintiff’s negligent misrepresentation claim, but not her Merchandising Practices Act claim, Carr-Davis, 2009 U.S. Dist. Lexis 121155.
The continued impact of Twombly/Iqbal is important. The court found in each instance that the plaintiffs were “uniquely equipped to determine from their physician whether the physician received. . .promotional literature.” E.g., Hall, 2009 U.S. Dist. Lexis 121057, at **28-29, n. 12. Plaintiffs not only failed to make allegations regarding their physicians’ receipt of such literature, they also failed to recite the efforts they had undertaken to find out this information prior to filing their complaints. Id. If plaintiffs have to plead causation specifically as to themselves, then it will be much easier to force them to prove causation specifically as to themselves – and thus easier to keep out irrelevant promotional activities that can’t be linked to a plaintiff’s prescribers.
As notable – and commendable – is the court’s willingness to do the hard work of examining the individual elements of the various state’s consumer protection acts. These were not just cut and paste jobs – each state’s law is separately evaluated. In hundreds of pages of analysis, it’s easy to start spouting boilerplate, but that didn’t happen. There are, of course, lots of similarities between different states’ consumer fraud and negligent misrepresentation causes of action. Mostly, the analysis boils down to the question of the required nexus between the alleged misrepresentation and the injury, and whether plaintiff failed to do the work required to plead sufficient nexus.
But not always.
In Smith, the Court was careful to point out that, regardless of pleading inadequacy, Pennsylvania law did not permit that state’s consumer protection statute to be used at all in learned intermediary rule cases. 2009 U.S. Dist. Lexis 121062, at *18-19. Likewise, in Carr-Davis, the Court found that the Missouri Merchandising Practices Act, uniquely, does not require pleading of any causal nexus. Plainly, Judge Wolfson was well aware of the nuances of state law. It was a slog – state after state’s law on consumer protection act and misrepresentation. Determining, for each state, the elements of the claims, and then whether the elements warranted application of a heightened pleading requirement (Rule 9), or just the Twombly/Iqbal requirements of Rule 8, can be enough of a headache. We tip our cyber hats to a judge who did it 16 times – refusing to kick the can any further down the road.
And it wasn’t even an MDL.