United States District Court, D. New Jersey, Camden Vicinage
B. KUGLER, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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).
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.
Strict Products Liability, Negligence, Breach of Implied
Warranty, and Loss of Consortium Claims Are Subsumed by the
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. §
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.
the PLA subsumes these claims, it would be futile to include
them in the amended complaint.
PLA and Breach of Express Warranty Claims Fail to Meet The
Fed.R.Civ.P. 12(b)(6) Pleading Standard and Must be ...