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Adamson v. Ortho-Mcneil Pharmaceutical

February 20, 2007

LINDSAY ADAMSON, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
ORTHO-MCNEIL PHARMACEUTICAL, INC. AND WATSON PHARMACEUTICALS, INC., DEFENDANTS.



The opinion of the court was delivered by: Wolfson, District Judge

OPINION

Presently before the Court is a motion pursuant to L. Civ. R. 7.1(i) by Plaintiff, Lindsay Adamson ("Adamson"), asking this Court to reconsider its November 16, 2006 Order granting Defendant's Motion to Dismiss. Specifically, Plaintiff contends that this Court improperly drew inferences in favor of the Defendants and made several errors of law; thus, Plaintiff argues that reconsideration is necessary to prevent manifest injustice. In the alternative, Plaintiff asks that this Court grant her leave to file an Amended Complaint. The Court has considered the moving, opposition and reply papers, and, for the reasons stated in the Opinion below, Plaintiff's Motion is denied.

I. Background

The instant matter concerns the marketing and sale of the prescription drugs Ortho TriCyclen, an oral contraceptive manufactured by OMJ Pharmaceuticals, and TriNessa, an "authorized generic" version of Ortho Tri-Cyclen manufactured by OMJ Pharmaceuticals*fn1 and marketed by Watson under its trade name, TriNessa. On February 24, 2006, Plaintiff filed a complaint alleging that Defendants, Ortho-McNeil Pharmaceutical, Inc. ("Ortho McNeil") and Watson Pharmaceuticals, Inc., ("Watson") intentionally misrepresented and concealed from Plaintiff and other "brand loyalists" that Ortho Tri-Cyclen and TriNessa are identical drugs in violation of the New Jersey Consumer Fraud Act ("NJCFA"). Plaintiff relied on several statements from Defendants' marketing and sales materials to support these allegations. First, Plaintiff argued that Watson's website did not disclose that TriNessa was the same drug as Ortho Tri-Cyclen and instead described TriNessa as "therapeutically equivalent to Ortho Tri-Cyclen." Pl's Compl. ¶61. Next, Plaintiff alleged that the TriNessa package insert lifted the clinical data from the Ortho Tri-Cyclen label and simply substituted TriNessa's brand name for that of Ortho Tri-Cyclen. Pl's Compl. ¶ 62. In other words, Plaintiff alleged that the TriNessa label did not explain that the tests were conducted for Ortho Tri-Cyclen but apply to TriNessa because the drugs are the same. Id. In addition, Plaintiff argued that a statement on Ortho McNeil's website -- "[i]sn't it great to find the one that's right for you" -- was misleading because it insists that there is only one contraceptive exactly like Ortho Tri-Cyclen. Id. ¶ 63. Further, Plaintiff alleged that the following statements from Ortho's website falsely represented that Ortho Tri-Cyclen was a singular and unique type of birth control:

Myth: All birth control pills are the same Fact: Not all birth control pills contain the same type of hormones.

The progestin in some birth control pills may cause unpleasant effects...However not all progestins trigger these effects to the same degree. . . .For example, norgestimate, a newer progestin contained in Ortho Tri-Cyclen Tablets may be less likely to cause unpleasant side effects among its Pill users.

Id. ¶ 64.

Finally, Plaintiff contended that Defendants engaged in a deceptive marketing scheme because Ortho McNeil advertises Ortho Tri-Cyclen's ability to improve acne and Watson does not promote this same benefit of TriNessa*fn2 . Id. ¶ 67-68. Based on these alleged misrepresentations, Plaintiff contended that she and other brand loyalists overpaid for Ortho Tri-Cyclen because TriNessa, the identical drug, was available for a lower price.

On June 12, 2006, Defendants filed a Motion to Dismiss Plaintiff's Complaint. This Court granted Defendant's Motion on November 16, 2006. Specifically, I found that the aforementioned statements and advertisements did not contain actionable misrepresentations or omissions under the NJCFA and that the statements were not susceptible to Plaintiff's unreasonable and conclusory interpretation as a matter of law. Indeed, I held that the statements in question were accurate factual statements or, at most, sales puffery. For these reasons, I dismissed Plaintiff' complaint for failure to state a claim.

Thereafter, on December 1, 2006, Plaintiff filed the instant Motion for Reconsideration pursuant to L. Civ. R. 7.1(i). Specifically, Plaintiff contends that this Court improperly drew inferences in favor of the Defendants and made several errors of law; thus, Plaintiff argues reconsideration is necessary to prevent manifest injustice. In the alternative, Plaintiff asks that this Court grant her leave to amend her Complaint.

II. Discussion

A. Reconsideration pursuant to Loc. Civ. R. 7.1(i)

Local Civil Rule 7.1(i) allows a party to seek reconsideration if there are "matter[s] or controlling decisions which the party believes the Judge. has overlooked" within ten business days following the entry of the order or judgment on the original motion. L. Civ. R. 7.1(i). It is improper on a motion for reconsideration to "ask the Court to rethink what it had already thought through -- rightly or wrongly." Oritani Sav. & Loan Ass'n v. Fidelity & Deposit Co., 744 F. Supp. 1311, 1314 (D.N.J. 1990). Rule 7.1(i) does not contemplate a recapitulation of arguments considered by the court before rendering its decision. See Bermingham v. Sony Corp. of Am., Inc., 820 F.Supp. 834, 856 (D.N.J.1992), aff'd, 37 F.3d 1485 (3d Cir.1994); Carteret Sav. Bank, F.A. v. Shushan, 721 F.Supp. 705, 709 (D.N.J.1989). Instead, Rule 7.1(i) creates a procedure by which a court may reconsider its decision upon a showing that dispositive factual matters or controlling decisions of law were overlooked by the court in reaching its prior decision. See Bryan v. Shah, 351 F.Supp.2d 295, 297 (D.N.J.2 005); Bowers v. Nat'l Collegiate Athletic Assoc., 130 F.Supp.2d 610, 612 (D.N.J.2001). It is well-established that a court may only grant a motion for reconsideration if the movant can show: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not previously available; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. Max's Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir.1999). If, as here, reconsideration is sought based upon the third factor, the movant may address only matters that were presented to the Court, but were not considered by the Court in making the decision at issue. United States v. Compaction Sys. Corp., 88 F.Supp.2d 339, 345 (D.N.J.1999). Because reconsideration is "an extraordinary remedy," it is "to be granted "very sparingly." See NL Indus. Inc. v. Commercial Union Ins. Co., 935 F.Supp. 513, 516 (D.N.J.1996); Maldonado v. Lucca, 636 F.Supp. 621, 630 (D.N.J.1986). Indeed, a party asserting a difference of opinion with a court's decision should not bring a motion for reconsideration; instead, he or she should seek relief through the normal appellate process. Chicosky v. Presbyterian Med. Ctr., 979 F.Supp. 316, 318 (D.N.J.1997); Florham Park Chevron, Inc. v. Chevron U.S.A., Inc., 680 F.Supp. 159, 163 (D.N.J.1988).

In the instant matter, Plaintiff contends that reconsideration pursuant to L. Civ. R. 7.1(i) is necessary to correct both improper factual inferences and errors of law. First, Plaintiff contends that the Court improperly drew factual inferences in Defendant's favor. Specifically, Plaintiff argues that the Court "failed to consider the fundamental fact in this case -- but for Defendants' deception, no one would continue to pay Ortho Tri-Cyclen's inflated price if they knew the identical drug was being sold cheaper under a different name." Pl.'s Br. at 1. Moreover, Plaintiff contends that "there is no factual or logical reason anyone would continue to pay ...


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