United States District Court, W.D. New York
October 5, 2004.
VIJAY S. BHANDARI, Individually and as Executor of the Estate of Trinidad Garcia-Bhandari, Plaintiff,
RICHARD C. BITTNER, AVENTIS HOLDINGS, INC., AVENTIS, INC., HOECHST MARION ROUSSEL, INC., AVENTIS PHARMACEUTICALS, INC., HMR PHARMA, INC., QUINTILES TRANSNATIONAL CORP., QUINTILES LABORATORIES LIMITED, QUINTILES, INC., LABORATORY CORPORATION OF AMERICA HOLDINGS, LABORATORY CORPORATION OF AMERICA and JOHN DOE, Defendants.
The opinion of the court was delivered by: JOHN T. ELFVIN, Senior District Judge
MEMORANDUM and ORDER*fn1
Plaintiff commenced this action on November 7, 2002 in the
Supreme Court of the State of New York, County of Erie, asserting
claims against the defendants for negligence, strict products
liability, breach of warranty, fraudulent misrepresentation and
fraudulent concealment. The action was removed to this Court on
January 9, 2003. On January 6, 2004 this Court dismissed
plaintiff's fraudulent misrepresentation and fraudulent
concealment claims without prejudice and granted plaintiff leave
to file an amended complaint to cure the noted deficiencies. Presently before this Court are motions by
defendants Quintiles Transnational Corp., Quintiles, Inc. and
Quintiles Laboratories Limited and by defendants Richard C.
Bittner, Aventis Holdings, Inc., Aventis, Inc., Hoechst Marion
Roussel, Inc., Aventis Pharmaceuticals, Inc. and HMR Pharma, Inc.
(collectively "defendants") to dismiss for failure to plead the
fraud claims with particularity pursuant to Rule 9(b) of the
Federal Rules of Civil Procedure ("FRCvP") and for failure to
state a claim pursuant to FRCvP 12(b)(6). For the reasons set
forth below, the defendants' motions to dismiss will be denied.
The following factual allegations are taken from the Amended
Complaint. On or about August 4, 2000 Trinidad Garcia-Bhandari
began to take the prescription drug Arava. Plaintiff, as the
husband and Executrix of the Estate of Trinidad Garcia-Bhandari,
alleges that as a result of taking Arava, his wife sustained
grievous injuries which led to her death on November 10, 2000.
Plaintiff's causes of action against all of the defendants are
premised on the same factual allegations to wit, that they
designed, researched, manufactured, assembled, advertised,
tested, inspected, marketed, supplied, promoted, packaged,
distributed, selected warnings and specifications of components
of and/or sold Arava. The Amended Complaint does not make any
factual distinctions among the eleven defendants and all of the
averments of liability are identical as to each such defendant.
On February 18, 2003 the Quintiles defendants filed a motion to
dismiss plaintiff's Complaint pursuant to FRCvP 12(b)(6), arguing
that it fails to comply with FRCvP 8(a)*fn2 and that plaintiff's fraudulent misrepresentation and concealment
claims should be dismissed because they are not pled with the
particularity as required by FRCvP 9(b).*fn3 This Court held
that, although plaintiff's Complaint "is broad and arguably
over-inclusive it comprises 59 pages, including 424 paragraphs
, it cannot be said either that it does not provide defendants
with fair notice of the claims asserted against them or that it
fails to state a claim for which relief may be granted." This
Court also noted that "the fact that plaintiff has aggregated his
claims against all of the defendants does not serve as a basis
for dismissing his Complaint for failure to comply with FRCvP
8(a)." December 31, 2003 Memorandum & Order of this Court, at 5.
Therefore, this Court did not dismiss plaintiff's Complaint for
failing to comply with FRCvP 8(a).
With regards to defendants' FRCvP 9(b) claims, this Court found
that Plaintiff did "not allege specific statements or
misrepresentations, * * * fail[ed] to identify which defendant,
or defendants, made the alleged misrepresentations[,] * * *
fail[ed] to indicate when such misrepresentations were made and
the circumstances in which the decedent relied upon such
statements[.]" December 31, 2003 Memorandum & Order of this
Court, at 9. Therefore, the Court dismissed plaintiff's
fraudulent misrepresentation and fraudulent concealment claims without prejudice and granted him leave to file an amended
complaint. Id. On January 30, 2004 plaintiff filed an Amended
Complaint, in response to which defendants filed motions to
dismiss plaintiff's fraudulent misrepresentation and fraudulent
concealment claims for failure to plead with particularity
pursuant to FRCvP 9(b) and for failure to plead sufficient facts
pursuant to FRCvP 12(b)(6), both of which are currently before
When ruling on a motion to dismiss for failure to state a claim
pursuant to FRCvP 12(b)(6), the Court must take "as true the
facts alleged in the complaint and [draw] all reasonable
inferences in the plaintiff's favor." Jackson Nat'l Life Ins.
Co. v. Merrill Lynch & Co., Inc., 32 F.3d 697, 699-700 (2d
Cir. 1994). This Court may dismiss plaintiff's action pursuant to
FRCvP 12(b)(6) if "it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief." Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir.
1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
Accordingly, this Court must not consider whether the claims will
ultimately be successful, but merely "assess the legal
feasibility of the complaint." Cooper v. Parsky,
140 F.3d 433, 440 (2d Cir. 1998).
FRCvP 9(b) provides that, "in all averments of fraud or
mistake, the circumstances constituting fraud or mistake shall be
stated with particularity." To satisfy FRCvP 9(b), the Amended
Complaint must "(1) specify the statements that the plaintiff
contends were fraudulent, (2) identify the speaker, (3) state
where and when the statements were made, and (4) explain why the
statements were fraudulent." United States of Am. v. Erie
County Med. Ctr., 2002 WL 31655004, *7 (W.D.N.Y. Oct. 30, 2002)
(quotations and citations omitted). FRCvP 9(b) is based on a need
to provide a defendant with fair notice of the basis of a plaintiff's claim so as to protect a defendant's reputation from
groundless accusations of fraud and to prevent strike suits
brought for settlement value; therefore, plaintiff is required to
reveal the specified information within his control. Corcoran
v. Am. Plan Corp., 1987 WL 4448, *4 (E.D.N.Y. Feb. 6, 1987);
Nugent v. Searle Pharm., Inc., 1987 WL 15328, *1 (W.D.N.Y.
Aug. 5, 1987). On the other hand, FRCvP 9(b) is relaxed when the
plaintiff is not likely to have access to more specific
information until after discovery because the information is
exclusively within defendant's knowledge. Nugent, 1987 WL
15328, *1. See also Corley v. Rosewood Care Ctr., Inc. of
Peoria, 142 F.3d 1041, 1050-51 (7th Cir. 1998) (finding
plaintiff's amended complaint satisfied the particularity
requirements of FRCvP 9(b) although he could not identify the
particular defendant because such specific information was in the
hands of defendants and FRCvP 9(b) must be relaxed where the
plaintiff lacks the access to all facts necessary to detail his
claim, which is most likely to be the case where a plaintiff
alleges a fraud against one or more parties); Michaels Bldg.
Co. v. Ameritrust Co., N.A., 848 F.2d 674, 680 (6th Cir. 1988)
(holding that it "is a principle of basic fairness that a
plaintiff should have an opportunity to flesh out her claim
through evidence unturned in discovery. Rule 9(b) does not
require omniscience; rather, the Rule requires that the
circumstances of the fraud be pled with enough specificity to put
defendants on notice as to the nature of the claim."). In this
case, plaintiff has alleged circumstances of fraud with
particularity as to information within his control and the rule
is relaxed as to matters exclusively within defendants'
knowledge. See Segal v. Gordon, 467 F.2d 602, 608 (2d Cir.
1972). First, plaintiff has specified the statements that he contends
were fraudulent. Plaintiff alleges that the "package insert
provides that the liver toxicity effects of the drug were
generally reversible, when, in fact, the effects were known [by
defendants] not to be reversible" (Am. Compl., ¶ 403) and
"[d]efendants knew at the time the package insert was prepared
that [the required] loading dose [initiated upon commencement of
the taking of the drug] could and would, in patients such as * * *
[decedent] cause severe and permanent liver damage[.]" (Id.
at ¶ 404.) These are the statements plaintiff alleges to be
fraudulent, which gives defendants fair notice of the basis of
Second, plaintiff still has not identified which defendant, or
defendants, made the alleged misrepresentations. However, this is
an instance where FRCvP 9(b) must be relaxed because plaintiff
does not have access to all the facts necessary to identify which
defendants are responsible for which misrepresentation. In
Corcoran, the plaintiff alleged that the fraudulent schemes
were the collective product of the defendants and alleged a
conspiracy among all defendants. 1987 WL 4448, *4-*5. The Court
held that to dismiss the complaint because of plaintiff's
inability to specify further the individual involvement of each
defendant before discovery had been had and when the information
is exclusively within defendants' knowledge "would be to use Rule
9(b) as a shield protecting members whose organizations commit
fraud from ever being sued for that fraud." Id. at *5.
Similarly plaintiff does not know which defendant or defendants
helped in the writing of the package insert and alleges that all
defendants were in some way involved with or responsible for the
claimed misrepresentation. Although plaintiff acknowledges that
it was probably the Aventis defendants who were thus responsible, he does not know which other defendants, if any,
were involved in the writing and does not know who caused the
false or misleading statements to appear on the package
insert.*fn4 This information is within the exclusive
knowledge of the defendants and plaintiff will be able to obtain
this information only through discovery which has not yet
Third, plaintiff has indicated where and when such
misrepresentations were made and, specifically, the circumstances
in which the decedent relied upon such statements. Plaintiff
alleges that decedent was prescribed the drug Arava on or about
August 4, 2000 (Pl.'s Am. Compl. ¶ 403) and continued to take the
drug until her death on November 10, 2000. (Id. at ¶¶ 400-424.)
Plaintiff alleges that "accompanying the prescription drug was a
package insert that contained fraudulent misrepresentations"
(Id. at ¶ 403) relating to the liver toxicity and the loading
dose of the drug. (Id. at ¶¶ 403-404.) Plaintiff also alleges
that decedent and her physician relied upon the statements
contained in the package insert with respect to the loading dose
and "ingested the prescribed loading dose in conformity with the
package insert accompanying" Arava. (Id. at ¶ 405). The Court's
Order of December 31, 2003 found that plaintiff's "Complaint does
not specify if the decedent read such statements, or heard them
directly from a defendant, or whether she solely relied upon
alleged misrepresentations that were made to her doctor."
December 31, 2003 Memorandum & Order of this Court, at 9.
Plaintiff's Amended Complaint, however, does specify that
decedent relied on the materials contained in the package insert.
To have relied on such materials, decedent had to have read them. Also, plaintiff's Amended Complaint states that the
decedent's physician relied on the materials contained in the
package insert, which were intended by the defendants to induce
the physician "to recommend" Arava. (Id. at ¶¶ 406, 404.)
Therefore, the Amended Complaint shows that decedent also relied
upon the alleged misrepresentations that were made to decedent's
Finally, the plaintiff explained in his Amended Complaint why
the statements were fraudulent. Specifically, plaintiff alleges
the defendants "knew that the effects of ARAVA, in certain
persons, were not generally reversible and would result in
permanent, and/or progressive liver damage. The Defendants also
knew that the loading dose, when prescribed, could and would
cause permanent and/or liver damage." (Am. Compl. ¶ 405.)
Moreover, the Amended Complaint states, inter alia, that
defendants represented that Arava was safe for its intended use,
but knew that it had not been proven to be safe. (Id. at ¶
414.) Further, the Court's Order of December 31, 2003 did not
find that this prong of the FRCvP 9(b) test had not been met in
plaintiff's Complaint and this Court now finds that plaintiff's
Amended Complaint also meets the fourth prong of the FRCvP 9(b)
Therefore, plaintiff has met the requirements of FRCvP 9 to the
best of his present ability and pled the fraud claims with
particularity to the extent the specified information was within
his control. Although plaintiff did not plead with particularity
those facts that are exclusively within defendants' knowledge, he
did so plead those facts that are within his control, which is
all that FRCvP 9(b) can require of a plaintiff. Thus, defendants'
motions to dismiss for failure to plead the fraud claim with
particularity pursuant to FRCvP 9(b) will be denied. Defendants further claim that, even without the additional
pleading hurdle of FRCvP 9(b), plaintiff's fraud claims fail to
state a claim, thereby justifying dismissal. The necessary
elements of a cause of action for fraud are "(1) the defendant's
misrepresentation or concealment of material fact, (2) that such
representation was false and known to be false, (3) the
defendant's intention to deceive and induce the plaintiff to act
upon such representation, (4) the plaintiff's reliance upon the
representation, and (5) damages." Jeffrey "BB" v. Cardinal
McCloskey Sch. & Home for Children, 257 A.D. 2d 21, 23,
689 N.Y.S.2d 721, 723 (3rd Dept. 1999). See also John Paul Mitchell
Sys. v. Pete-N-Larry's Inc., 862 F. Supp. 1020, 1030 (W.D.N.Y.
1994). As stated above, plaintiff did allege in his Amended
Complaint the misrepresentations and concealments of material
fact made by defendants and that such representations were false
and known to be false to wit, defendants stated in the package
inserts the loading dose amounts and that the liver toxicity
effects of the drug were reversible, both of which are material
facts that plaintiff alleges were false and known by defendants
to be false. Additionally, the Amended Complaint states that
defendants had the intent of defrauding, deceiving and inducing
decedent, doctors and the public in general and that decedent was
unaware of the falsity of the representations, reasonably
believed them to be true and, in reliance upon the
representations, was induced to and did take Arava. (Pl.'s Compl.
¶¶ 406-407.) Finally, plaintiff alleges that defendants'
misrepresentations and concealments resulted in the painful death
of plaintiff's wife which further resulted in financial and
emotional damages to her next of kin. Because a motion to dismiss is not grantable unless "no relief
could be granted under any set of facts that could be proved
consistent with the allegations," all factual allegations in the
complaint are deemed true and all reasonable inferences therefrom
are construed in favor of the plaintiff. Cicio v. Does,
321 F.3d 83, 89-90 (2d Cir. 2003) (quotations and citations omitted).
Here, plaintiff has met his burden in alleging facts in his
Amended Complaint that, if accepted as true, could entitle him to
relief. Therefore, defendants' motions to dismiss plaintiff's
fraud claims for failure to state a claim pursuant to FRCvP
12(b)(6) will be denied.
Accordingly, it is hereby ORDERED that defendants' motions to
dismiss plaintiff's fraudulent misrepresentation and fraudulent
concealment claims are denied.