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November 30, 2010


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



This is a diversity action in which plaintiffs Evangeline Baker ("Mrs. Baker") and Bruce Baker (together with Mrs. Baker, "Plaintiffs") bring claims for product liability against APP Pharmaceuticals, LLP ("APP"), Hospira, Inc. ("Hospira") and Baxter Healthcare Corporation ("Baxter" and, collectively with APP and Hospira, "Defendants"). Presently before the Court are motions by Baxter and Hospira to dismiss the first amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Oral argument was held October 18, 2010. For the reasons below, Defendants' motions are granted in part and denied in part.

I. Background*fn1

On or around September 4, 2007, Mrs. Baker was admitted to Hunterdon Medical Center with chest pain and was subsequently transferred to Morristown Medical Center for a coronary artery bypass graft. As part of the treatment for her surgery, Mrs. Baker was administered a drug product called heparin, which is an anticoagulant used to prevent the formation of clots and the extension of existing clots within the blood. Heparin is administered either by intravenous or subcutaneous injection and must be given frequently or as a continuous infusion. A side-effect associated with the administration of heparin is known as heparin-induced thrombocytopenia ("HIT"). HIT develops as a result of a patient's reaction to heparin and causes, rather than prevents, clotting within the blood. On or around September 20, 2007, Mrs. Baker was diagnosed with HIT and experienced various severe adverse health problems, including bluish discoloration of her lower left extremity, the formation of deep vein thrombosis, severe swelling of her left foot, severe pain in her lower left extremity, a diagnosis of gangrene, atrial fibrillation, sinus tachycardia, venous congestion and, eventually, the amputation of all five toes on her left foot.

Plaintiffs filed the first amended complaint in this action on June 11, 2010 [docket entry no. 18], alleging eight causes of action, including strict liability for failure to warn and design defect (Counts I and II), negligence (Count III), breach of implied warranty (Count IV), breach of express warranty (Count V), negligent misrepresentation (Count VI), fraud by concealment (Count VII) and loss of consortium (Count VIII). The first amended complaint alleges that Defendants manufacture, market, distribute and sell several forms of heparin throughout the United States, including the State of New Jersey, and that Mrs. Baker was exposed to Defendants' heparin products. As a result of the administration of Defendants' heparin products, Mrs. Baker suffered injuries to her health, strength and activity, employed physicians to examine, treat and care for her and incurred hospital, medical and incidental expenses.

Plaintiffs allege that Defendants were aware, or should have been aware, of the risks of HIT because information was available to Defendants with respect to the defects and dangerous nature of heparin, but that Defendants failed to cure the defects or issue adequate warnings with respect to HIT. Specifically, Plaintiffs allege that Defendants omitted information with respect to health hazards and risks associated with the administration of heparin from their literature, packaging and labeling and downplayed the known adverse and serious health effects of the drug. In addition, Plaintiffs claim that Defendants' heparin products were placed into the stream of commerce by Defendants in a defective and unreasonably dangerous condition, as the foreseeable risks exceed the benefits associated with the design and they are unreasonably dangerous and more dangerous than an ordinary consumer would expect.

II. Legal Discussion

A. Motion to Dismiss Standard

Under Federal Rule of Civil Procedure 12(b)(6), a court may grant a motion to dismiss if the complaint fails to state a claim upon which relief can be granted. When considering such a motion, the district court judge is "required to accept as true all of the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).

The Supreme Court set forth the standard for addressing a motion to dismiss under Rule 12(b)(6) in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Twombly Court stated that, "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ... a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]" Id. at 555 (internal citations omitted). Therefore, for a complaint to withstand a motion to dismiss under Rule 12(b)(6), the "[f]actual allegations must be enough to raise a right to relief above the speculative level, ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact) ..." Twombly, 550

More recently, the Supreme Court has emphasized that, when assessing the sufficiency of a civil complaint, a court must distinguish factual contentions and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). A complaint will be dismissed unless it "contain[s] sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. at 1949 (quoting Twombly, 550 U.S. at 570). This "plausibility" determination will be "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (citing Iqbal, 129 S.Ct. at 1940).

B. Counts I and II: Strict Liability Claims

In a New Jersey products liability action, a plaintiff must prove "that the defendant manufacturer actually made the particular product accused of having caused the injury." Pipon v. Burroughs-Wellcome Co., 532 F.Supp. 637, 637-638 (D.N.J. 1982) (citing Scanlon v. General Motors Corporation, 65 N.J. 582, 326 A.2d 673 (1974)). Defendants contend that Plaintiffs' strict liability claims fail because the first amended complaint does not adequately allege that Defendants' products injured Plaintiff. In particular, Defendants argue that ...

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