United States District Court, W.D. New York
GREGORY A. AMOS, in his capacity as Administrator of the Estate of ANDREA R. AMOS, Deceased, Plaintiff,
BIOGEN IDEC INC. and ELAN PHARMACEUTICALS, INC., Defendants
[Copyrighted Material Omitted]
For Gregory A. Amos, in his capacity as Administrator of the Estate of ANDREA R. AMOS, Deceased, Plaintiff: Edward F. Blizzard, Sofia E. Bruera, LEAD ATTORNEYS, PRO HAC VICE, Blizzard & Nabers LLP, Houston, TX; Hadley L. Matarazzo, LEAD ATTORNEY, Faraci Lange LLP, Rochester, NY.
For Biogen Idec, Inc., Defendant: John B. Koss, Joseph G. Blute, Yalonda T. Howze, LEAD ATTORNEYS, PRO HAC VICE, Mintz Levin Cohn Ferris Glovsky & Popeo, PC, Boston, MA; Joshua M. Agins, Scott R. Jennette, LEAD ATTORNEYS, Ward Greenberg Heller & Reidy LLP, Rochester, NY.
For Elan Pharmaceuticals, LLC, Defendant: Scott R. Jennette, LEAD ATTORNEY, Ward Greenberg Heller & Reidy LLP, Rochester, NY.
DECISION and ORDER
MICHAEL A. TELESCA, United States District Judge.
Plaintiff Gregory A. Amos, the widower of Andrea R. Amos (" Amos" ) and administrator of her estate, brings this wrongful death action against defendants Biogen Idec Inc., (" Biogen" ) and Elan Pharmaceuticals, Inc. (" Elan" ) claiming that Andrea Amos died as the direct result of taking the prescription drug Tysabri, which was developed, marketed, and sold by the defendants. Specifically, plaintiff claims that Amos's use of the drug Tysabri caused her to develop a fatal infection in her brain.
Plaintiff's Complaint alleges nine separate causes of action against the defendants, including claims for negligence, strict products liability, design defect, failure to warn, negligent misrepresentation, fraud, breach of implied warranty, violation of the New York State General Business Law, and wrongful death.
The defendants deny plaintiff's allegations, and move to dismiss five of the claims asserted by the plaintiff. Specifically, defendants move to dismiss plaintiff's claims of strict liability, design defect, negligent misrepresentation, fraud, and violation of the New York Business Law.
For the reasons set forth below, I grant defendants' motion to dismiss plaintiff's design defect claims, and New York General Business Law claim with prejudice. I grant defendants' motion to dismiss plaintiff's fraud claim without prejudice, and deny defendants' motion to dismiss plaintiff's strict liability claim based on failure to warn, and plaintiff's claim for negligent misrepresentation.
In 2005, Andrea Amos, the wife of plaintiff Gregory Amos, was diagnosed with the disease Multiple Sclerosis (" MS" ). In September, 2006, plaintiff began taking the prescription drug Tysabri to treat the symptoms of her disease. According to the Complaint, Tysabri is a " potent immunosuppressant drug" that attempts to relieve MS symptoms by inhibiting inflamation that causes damage to the myelin sheath of MS patients. Tysabri is manufactured and sold by two independent drug manufacturers, Biogen Idec Inc., and Elan Pharmaceuticals, working under a joint collaboration agreement.
According to the Complaint, because Tysabri is such a strong immunosuppressant drug, it weakens the immune system of patients taking the drug, leaving those patients vulnerable to infections that would not ordinarily harm a person with a fully-functioning immune system. Plaintiff claims that Tysabri has been shown to cause a specific, deadly infection known as Progressive Multifocal Leukoencephalopathy (" PML" ), that occurs when a normally benign virus, the JC virus, that typically lays dormant in the human kidney, migrates to the human brain because the body's compromised immune system is incapable of containing the virus. According to the Complaint, once the JC virus enters the brain, it rapidly replicates, often resulting in impaired cognition, cortical blindness, and weakness on one side of the body. Plaintiff claims that PML usually causes death within one to four months of the onset of the disease.
Plaintiff took the drug Tysabri from approximately September, 2006 to sometime
in mid 2011. In May, 2011, Amos began to experience difficulty understanding and communicating with people. She also experienced double vision and mobility difficulties. In August, 2011, Amos was diagnosed with PML, and according to her death ...