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Sich v. Pfizer Pharmaceutical

United States District Court, D. New Jersey, Camden Vicinage

October 4, 2017

MICHAEL SICH and ELLEN BITTERLICH, his wife, Plaintiffs,



         This matter arises upon defendant Pfizer Incorporated's (“Defendant”) motion to dismiss plaintiffs Michael Sich and Ellen Bitterlich's (“Plaintiffs”) suit for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). For the reasons set forth in the opinion below, this motion is GRANTED WITHOUT PREJUDICE, and Plaintiffs are permitted to submit an amended complaint as to only the claims arising under the New Jersey Products Liability Act (“PLA”) within 14 days.

         I. BACKGROUND

         Plaintiffs allege that Defendant's drug, Dep-Medrol, caused Mr. Sich severe physical injuries. See Compl. at 1. In February 2015, Mr. Sich visited Reconstructive Orthopedics where a physician's assistant administered an injection of Dep-Medrol in his left knee. Id. Later that month, Mr. Sich returned to Reconstructive Orthopedics for an appointment with Dr. Scott Schoifet and received a second injection. Id. at 2. Within hours, Mr. Sich began experiencing symptoms including elevated temperature, sensitivity, swelling, rashes, and hives. Id. Within a week, Mr. Sich underwent open debridement and two operations, and required seventeen days of inpatient treatment. Id. Plaintiffs then sued in New Jersey State Court, but Defendant removed the case on diversity grounds. See Notice of Removal (Doc. No. 1). Mr. Sich alleges that the “medication supplied by Defendant [] was defective” and caused his injuries. Id.

         Plaintiffs seek relief under a number of theories. See Compl. First, Plaintiffs allege a design defect, a failure to warn, and manufacturing defects under the PLA. Id.; N.J.S.A. § 2A:58C. Second, Plaintiffs allege breach of actual and implied warranties, negligence, and “other causes of action allowed by law.” Compl. at 4. Finally, Plaintiffs allege loss of consortium on behalf of Ms. Bitterlich. Id. at 5.

         II. STANDARD

         Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss an action for failure to state a claim upon which relief can be granted. When evaluating a motion to dismiss, “courts accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). In other words, a complaint survives a motion to dismiss if it contains sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         To make this determination, a court conducts a three-part analysis. Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Id. (quoting Iqbal, 556 U.S. at 675). Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 131 (quoting Iqbal, 556 U.S. at 680). Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Id. (quoting Iqbal, 556 U.S. at 680). This plausibility determination is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. A complaint cannot survive where a court can only infer that a claim is merely possible rather than plausible. Id.

         III. ANALYSIS

         Plaintiffs' Strict Products Liability, Negligence, Breach of Implied Warranty, and Loss of Consortium Claims Are Subsumed by the PLA.

         The PLA is “both expansive and inclusive, encompassing virtually all possible causes of action relating to harms caused by consumer and other products.” In re Lead Paint Litigation, 924 A.2d 484, 436-37 (N.J. 2007) (citing N.J.S.A. § 2A:58C-1(b)(3) (defining “product liability action”)). The statute's reach includes “any claim or action brought by a claimant for harm caused by a product, irrespective of the theory underlying the claim, except actions for harm caused by breach of an express warranty.” N.J.S.A. § 2A:58C-1(b)(3).

         Here, Plaintiffs allege injuries sustained as a result of Mr. Sich's use of Depo-Medrol. See Compl. The PLA, as a result, applies-this is a products liability case. But “negligence, strict liability and implied warranty have been consolidated into a single product liability cause of action” by the PLA. Clements v. Sanofi-Aventis, U.S. Inc., 111 F.Supp.3d 586, 596 (D.N.J. 2015) (“New Jersey law no longer recognizes breach of implied warranty, negligence, and strict liability as viable separate claims for harms deriving from a defective product.”); Fid. & Guar. Ins. Underwriters, Inc. v. Omega Flex, Inc., 936 F.Supp.2d 441, 446-51 (D.N.J. 2013); Green v. Gen. Motors Corp., 709 A.2d 205, 209 ( N.J.Super. 1998). Furthermore, the PLA subsumes loss of consortium claims arising in products liability contexts. Chester v. Boston Sci. Corp., No. CV 16-02421, 2017 WL 751424, at *4 (D.N.J. Feb. 27, 2017). Therefore, Plaintiffs' strict products liability, negligence, breach of implied warranty, and loss of consortium claims are subsumed by the PLA and must be dismissed as a matter of law.

         Because the PLA subsumes these claims, it would be futile to include them in the amended complaint.

         Plaintiffs PLA and Breach of Express Warranty Claims Fail to Meet The Fed.R.Civ.P. 12(b)(6) Pleading Standard and Must be ...

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