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Harris v. Bristol-Myers Squibb Co.

United States District Court, Third Circuit

September 25, 2013



DOUGLAS E. ARPERT, District Judge.

This matter comes before the Court on Plaintiffs' Motion for Leave to file a Fourth Amended Master Complaint. Defendant Bristol-Meyers Squibb Company ("Defendant" or "BMS") has opposed Plaintiffs' Motion on futility grounds. The Court heard oral argument on September 5, 2013. For the reasons discussed below, Plaintiffs' Motion is GRANTED, in part, and DENIED, in part.


These consolidated actions involve several hundred Plaintiffs who lived and worked for extended periods of time in the neighborhoods bordering a BMS pharmaceutical plant. Plaintiffs are seeking leave to amend their Master Complaint to include additional information obtained during the course of ongoing discovery. In connection with their Motion, Plaintiffs have submitted a proposed Fourth Amended Master Complaint ("FAMC").

A. Procedural and Factual History

In May 2008, Plaintiff's counsel filed more than a hundred identical complaints in New Jersey state court against BMS alleging exposure to harmful chemicals from BMS's New Brunswick plant. In October 2008, the Supreme Court of New Jersey issued an Order granting mass tort status and assigning the cases to Hon. Carol E. Higbee, J.S.C.

Plaintiffs also filed their original Master Complaint in May 2008. The First Amended Master Complaint, which added an Environmental Rights Act claim, was filed in August 2008. The Second Amended Master Complaint was filed in August 2009, pursuant to BMS's stipulation regarding the elimination of all captioned BMS name variations. The Third Amended Master Complaint ("TAMC"), which removed certain Spill Act claims, was filed in November 2009. Currently, there are approximately 195 personal injury cases, along with roughly 105 separate medical monitoring cases, pending in the Superior Court.

In October 2011, BMS began removing newly-filed cases to the United States District Court for the District of New Jersey. To date, 154 complaints have been removed, and are currently pending as consolidated actions for discovery purposes before this Court. The complaints in the removed actions adopt and incorporate by reference the TAMC.

B. State Court Decisions

Counts 11 (Misrepresentation), 12 (Conspiracy and Fraudulent Concealment), and 13 (Fraudulent Concealment of Evidence) of the TAMC were dismissed without prejudice by the Superior Court on December 30, 2009 for failure to plead fraud with particularity.

On the issue of whether the Wrongful Death Act's statute of limitations can be tolled by the discovery rule, the Superior Court held that the Supreme Court of New Jersey "may be inclined" to apply discovery rule for tolling purposes. In re Bristol-Myers Squibb Env. Contamination Litig., No. 281, slip op. at 6 (N.J.Super. Ct. Law Div. Jan. 28, 2009). The Superior Court, therefore, refused to dismiss the wrongful death claims without first affording the state Plaintiffs an opportunity to take discovery to explore their equitable defenses to the statute of limitations bar.

C. District Court Actions

In April 2012, BMS began filing motions to dismiss as untimely the New Jersey Wrongful Death Act, N.J.S.A. 2A:31-1 et seq. ("WDA") claims that were brought on behalf of 24 claimants more than two years after their deaths. Plaintiffs opposed these motions, arguing they were entitled to equitable tolling of the two-year statute of limitations under the doctrine of fraudulent concealment. Plaintiffs' theory of concealment was based upon the allegation that, because BMS was aware that certain contaminants were being discharged at its plant, it should have disclosed that information to the public. According to Plaintiffs, failure to disclose that information was fraudulent and to Plaintiffs' detriment.

On February 15, 2013, U.S. District Judge Freda L. Wolfson dismissed Plaintiffs' WDA claims without prejudice because Plaintiffs had not sufficiently pled the elements of the equitable defense of fraudulent concealment to warrant its application. Fuqua v. Bristol-Meyers Squibb Co., ___F.Supp.2d___, 2013 WL 781615, at *7 (D.N.J. 2013) (Wolfson, J.). Specifically, Judge Wolfson noted that Plaintiffs did not plead "the date, time and place of the alleged fraud or otherwise inject precision or some measure of substantiation into [their] fraud allegation[s]." Id . Judge Wolfson also found that the TAMC did little more than assert generalized facts, rather than allege facts specific to each plaintiff at issue, as it must under Rule 9(b). Id . (citing Rolo v. City Investing Co. Liquidating Trust , 155 F.3d 644, 658-59 (3d Cir. 1998)).

Furthermore, Plaintiffs failed "to aver what actions they took to discover that information" and "neglect[ed] to assert any facts regarding their due diligence in ascertaining the cause of death of the respective decedents as it relates to BMS's concealment of contamination." Id. at *9. Importantly, Judge Wolfson admonished Plaintiffs that "those allegations should be specific to each Plaintiff's conduct, and not be pled in a generalized manner." Id.

In light of these deficiencies, Judge Wolfson gave Plaintiffs the opportunity to replead their fraudulent concealment allegations. Plaintiffs now submit this Motion for leave to amend their pleadings in an attempt to revive their WDA claims. BMS opposes the Motion on futility grounds.


Federal Rule of Civil Procedure 15(a) governs amendments to pleadings. Rule 15 provides that "leave shall be freely given when justice so requires." However, leave to amend is not automatic. The Third Circuit has recognized that a request for leave to amend may be denied when the proposed amendment is futile. See Arab Africa Int'l Bank v. Epstein , 10 F.3d 168, 175 (3d Cir. 1993) (denying leave to amend when RICO claim was time-barred); see also Garvin v. City of Philadelphia , 354 F.3d 215, 222 (3d Cir. 2003) (affirming the District Court's denial of plaintiff's motion to amend when plaintiff's amended complaint would not have survived a motion to dismiss in light of the statute of limitations).

An amendment will be considered futile if it "is frivolous or advances a claim or defense that is legally insufficient on its face." Harrison Beverage Co. v. Dribeck Imps., Inc. , 133 F.R.D. 463, 468 (D.N.J.1990) (citations omitted). In determining whether an amendment is insufficient on its face, the Court employs the same standard as in a Rule 12(b)(6) motion to dismiss. In re Burlington Coat Factory Sec. Litig. , 114 F.3d 1410, 1434 (3d Cir. 1997) (citation omitted).

Under a typical Rule 12(b)(6) analysis, the question is not whether the movant will ultimately prevail, and detailed factual allegations are not necessary. Antoine v. KPMG Corp., 2010 WL 147928, at *6 (D.N.J. Jan. 6, 2010). If a proposed amendment is not clearly futile, then denial of leave to amend is improper. Meadows v. Hudson County Bd. of Elections , 2006 WL 2482956, at *3 (D.N.J. Aug. 24, 2006). Generally, then, "a Court is not concerned with the question of whether the amended complaint would be barred by the Statute of Limitations unless this fact appears clearly from the record." Alfieri v. Willys Motors Inc., 35 F.R.D. 194, 195 (E.D. Pa. 1964). Nonetheless, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007) (internal citations omitted).

Determination of whether a Complaint survives a motion to dismiss requires a two-part analysis. Folwer v. UMPC Shadyside , 578 F.3d 203, 210 (3d. Cir. 2009). First, factual and legal elements of the complaint must be separated. Folwer , 578 F.3d at 210. All well-pleaded facts must be accepted as true, but legal conclusions may be disregarded. Id. at 210-11. Second, the Court must determine whether the plaintiff's complaint articulates "enough facts to state a claim to relief that is plausible on its face." Twombly , 550 U.S. at 570. "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). This context-specific task requires the "reviewing court to draw on its judicial experience and common sense." Id. at 679.[1]

The Court may consider only a very limited record when evaluating whether a proposed amended complaint is futile. When evaluating an objection based upon futility, the Court may only consider the pleading, exhibits attached to the pleading, matters of public record, and undisputedly authentic documents if the claims are based on those documents. Pension Benefit Guar. Corp. v. White Consol. Indus. , 998 F.2d 1192, 1196 (3d Cir.1992).


A. Equitable Tolling and Fraudulent Concealment

This is Plaintiffs' second attempt to plead sufficient facts which would support their equitable tolling defense. After this Court dismissed their first attempt without prejudice, Plaintiffs have timely moved to amend their Master Complaint. Critically, however, Plaintiffs were instructed that their amendments must adhere to the requirements set forth in that Opinion. Fuqua, 2013 WL 781615, at *10. Plaintiffs have again fallen short of the specificity obligations imposed by Rule 9(b), as well as Judge Wolfson's previous directives.

1. Pleading Requirements

"The doctrine of fraudulent concealment works to toll the limitations period set forth by statute when a plaintiff's cause of action has been obscured by the defendant's conduct.'" In re Aspartame Antitrust Litig. , 416 F.App'x 208, 211 (3d Cir. 2011) (citation omitted).

While New Jersey courts are not explicit as to the elements a plaintiff must plead in order to invoke equitable tolling under a theory of fraudulent concealment, the Third Circuit has enunciated the following factors: "(1) fraudulent concealment; (2) failure on the part of the plaintiff to discover his cause of action notwithstanding such concealment; and (3) that such failure to discover occurred [notwithstanding] the exercise of due care on the part of the plaintiff." Fuqua, 2013 WL 781615, at *8 (citing In re Aspartame Antitrust Litig. , 416 F.App'x 208, 211 (3d Cir. ...

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