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In re Fosamax Products Liability Litigation

United States District Court, S.D. New York

August 15, 2013

IN RE: FOSAMAX PRODUCTS LIABILITY LITIGATION; This document relates to all actions

Decided August 14, 2013.

FOR PLAINTIFFS: Brandon Bogle, Levin Papantonio, P.A.

FOR GENERIC, DEFENDANTS: Jonathan Price, Goodwin Procter, LLP.

OPINION

Page 414

OPINION & ORDER

John F. Keenan, United States District Judge.

Before the Court is a motion to dismiss brought by the Generic Manufacturer Defendants (" Generic Defendants" ). For the reasons that follow, Generic Defendants' motion is granted in part and denied in part.

I. Background

Plaintiffs in this case were prescribed Fosamax and its generic equivalent, alendronate sodium, an oral bisphosphonate. This MDL involves claims that Fosamax, manufactured by Merck, or its generic equivalent, manufactured by the Generic Defendants, caused users to suffer from a condition known as osteonecrosis of the jaw (" ONJ" ). Plaintiffs have asserted claims for failure to warn, negligence, design defect, breach of warranty, and fraud against both Merck and the Generic Defendants.

Generic Defendants have moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). They argue that plaintiffs' state law tort claims are

Page 415

preempted by federal regulations applicable to generic drugs in light of the Supreme Court's recent decisions in PLIVA, Inc. v. Mensing (Mensing), 131 S.Ct. 2567, 180 L.Ed.2d 580 (2011) and Mutual Pharmaceutical Co. v. Bartlett, (Bartlett) 133 S.Ct. 2466, 186 L.Ed.2d 607 (2013). Alternatively, the Generic Defendants argue that the claims are inadequately pleaded.

II. Discussion

A. Standard of Review

A motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) is governed by the same standard as a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006). A motion to dismiss under 12(b)(6) may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds that the plaintiff has failed to set forth fair notice of what the claim is and the grounds upon which it rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

A complaint must contain sufficient factual matter to " state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 570). The plausibility standard requires that " the plaintiff plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged" and demands " more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556). Although a court must accept as true all factual allegations in a complaint, that tenet is " inapplicable to legal conclusions," and " [a] pleading that offers 'labels and ...


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