A purported consumer fraud class action complaint that sought to join together off-label promotion allegations about no less than twelve different drugs was recently dismissed with prejudice for failure to state a claim. Zafarana v Pfizer, Inc., ___ F. Supp.2d ___, 2010 WL 2854170 (E.D. Pa. July 19, 2010). Talk about throwing in the kitchen sink. Two individual plaintiffs brought suit under three different states’ consumer fraud statutes – Pennsylvania, New Jersey, and Wisconsin.
The court also threw out unjust enrichment claims.
The plaintiffs made three related types of claims: (1) that off-label promotion caused them to take drugs (but not all 12) that were ineffective for the conditions they had, thus causing them personal injury from their underlying conditions; (2) that they suffered side effects from the drugs themselves, another personal injury claim; and (3) that the off-label promotion caused them to pay for treatments that were more expensive than would otherwise have been the case. 2010 WL 2854170, at *3.
Here’s what the court did:
New Jersey: Plaintiffs’ first problem was that the New Jersey Products Liability Act Subsumes all personal injury claims relating to products – something we’ve discussed before. Out go theories (1) and (2). 2010 WL 2854170, at *7. Only the third could clear even this initial hurdle. And that’s as far as it got. As a consumer fraud claim, it failed for failure to plead causation or injury. That’s because, for any class action involving a prescription drug even to pass a red face test for certification, it has to be pleaded at such a level of generality that it ignores the individualized prescription decisions of prescribing doctors, which is a no-no under the consumer fraud act. Thus, the commonality that CFA claims would require for there to be any chance of class certification causes them to fail as CFA claims:
Plaintiffs, however, simply have not stated any facts that make it plausible that a less expensive alternative would have been prescribed. Plaintiffs seem to ignore the role played by the prescribing physician in this case. They have not stated, and likely cannot state, that they would have been prescribed other, less costly medications, but only that they could have been prescribed such medications. It is also true, however, that they could have been prescribed a more expensive medication, or a combination of other medications that, while individually less expensive, were cumulatively more expensive.
2010 WL 2854170, at *7. Obviously, plaintiffs’ counsel know how to plead valid claims – they’ve evidently made a choice that they’d rather have no claim at all than have a claim that couldn’t be brought as a class action. Clients? What clients?
Wisconsin: Wisconsin’s CFA isn’t extraterritorial, and plaintiffs don’t allege any transaction that took place in Wisconsin. 2010 WL 2854170, at *8. That didn’t take long.
Pennsylvania: Unlike New Jersey, the Pennsylvania CFA requires reliance as an element (thanks, Bexis, for the Weinberg opinion). Thus, the learned intermediary rule pretty much kills (makes it “difficult, if not impossible”) CFA claims under the Pennsylvania statute. Id. Plaintiffs sure didn’t plead anything to get around the rule in this case:
[W]e find that the learned intermediary doctrine prevents there from being any justifiable reliance, and, therefore, Plaintiffs have not stated a claim under the UTPCPL. Under the learned intermediary doctrine, the drug manufacturer owes a duty of disclosure to the prescribing physician, but it is then the duty of the prescribing physician to communicate any risks or other information about the drug to the patient. In other words, a patient in Pennsylvania cannot justifiably rely on the prescription drug manufacturer; instead, it is the prescribing physician who provides the grounds for justifiable reliance. Further, in the present case, any misrepresentations were made to prescribing physicians and not to Plaintiffs.
2010 WL 2854170, at *9 (citation omitted).
Conspiracy/Aiding and Abetting: Sorry, if you don’t have a viable claim for something (an “independent cause of action”), you sure don’t have a viable claim for conspiring or aiding and abetting something that’s not actionable in the first place. 2010 WL 2854170, at *10-11.
Unjust Enrichment: (1) “There is no separate tort cause of action for unjust enrichment in New Jersey.” Id. at *11. (2) “[U]njust enrichment is not a substitute for failed tort claims in Pennsylvania.” Id. So go away.
Best of all, the court dismissed the claims with prejudice. They’d been given a prior shot and replied with 140 pages of meaningless detail that didn’t even address the glaring deficiencies that the defendants pointed out the first time around. Id. at *12.
So it’s a final, appealable dismissal with prejudice. We can only hope that, since the complaint is a really bad one, that if plaintiffs do appeal, we get a binding Third Circuit opinion putting a stop once and for all to this kind of funny business throughout Pennsylvania, New Jersey, and Delaware.