In re Avandia Marketing Sales Practices & Products Liability Litigation, 102114 FED3, 13-4323

Docket Nº:13-4323
Opinion Judge:SCIRICA, Circuit Judge.
Party Name:IN RE: AVANDIA MARKETING SALES PRACTICES & PRODUCTS LIABILITY LITIGATION RICHARD V. D'APUZZO, on behalf of himself and all others similarly situated, Appellant
Attorney:Gary M. Meyers, Esq. [ARGUED] Counsel for Appellant Anthony C. Vale, Esq. Gabriel J. Vidoni, Esq. [ARGUED] Pepper Hamilton Counsel for Appellee
Judge Panel:Before: FISHER, SCIRICA, and COWEN, Circuit Judges
Case Date:October 21, 2014
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
FREE EXCERPT

IN RE: AVANDIA MARKETING SALES PRACTICES & PRODUCTS LIABILITY LITIGATION

RICHARD V. D'APUZZO, on behalf of himself and all others similarly situated, Appellant

No. 13-4323

United States Court of Appeals, Third Circuit

October 21, 2014

NOT PRECEDENTIAL

Argued: April 7, 2014

On Appeal from the District Court for the Eastern District of Pennsylvania D.C. Civil No. 2-07-cv-04963 and 2-07-md-01871 (Honorable Cynthia M. Rufe)

Gary M. Meyers, Esq. [ARGUED] Counsel for Appellant

Anthony C. Vale, Esq. Gabriel J. Vidoni, Esq. [ARGUED] Pepper Hamilton Counsel for Appellee

Before: FISHER, SCIRICA, and COWEN, Circuit Judges

OPINION

SCIRICA, Circuit Judge.

At issue in this diversity action is whether plaintiff has stated a claim under Federal Rule of Civil Procedure 12(b)(6) for breach of express warranty under New Jersey law. The trial court granted defendant's motion to dismiss, and plaintiff appeals.1We will affirm.2

I.

Richard V. D'Apuzzo, who suffers from Type 2 diabetes mellitus, filed suit alleging GlaxoSmithKline LLC ("GSK") caused him economic harm by misrepresenting the safety and efficacy of its diabetes drug Avandia.3 D'Apuzzo does not allege Avandia harmed him physically or that he experienced any cardiovascular injury. Instead, D'Apuzzo contends he would have paid less for safer, more effective insulin had GSK not expressly warranted Avandia to be safe and effective in treating type 2 diabetes. App. 25, 80. Specifically, he contends Avandia was approximately twenty-two times more expensive than older available drugs, such as insulin, that were often more effective and better tolerated than Avandia. App. 23. D'Apuzzo seeks damages for the higher cost, including co-payments, he paid for Avandia as a result of GSK's warranty that the drug was safe and effective. D'Apuzzo claims GSK breached an express warranty because Avandia is neither safe nor effective in treating diabetic patients like him when taking into account glycemic control and risk factors. Yet D'Apuzzo does not allege that Avandia caused him harm or was ineffective for him.

D'Apuzzo filed his initial class action complaint4 on July 13, 2007, and his first amended complaint on October 24, 2007, both in the U.S. District Court for the District of New Jersey. The case was then transferred to the U.S. District Court for the Eastern District of Pennsylvania as part of MDL No. 1871 pursuant to an order from the Judicial Panel on Multidistrict Litigation.5 On June 6, 2010, D'Apuzzo filed his second amended complaint, alleging violations of the New Jersey Consumer Fraud Act and unjust enrichment. On September 7, 2011, on GSK's motion, the District Court dismissed D'Apuzzo's second amended complaint without prejudice. On October 25, 2011, D'Apuzzo filed his third amended complaint, alleging violations of the New Jersey Consumer Fraud Act, breach of express warranty, breach of implied warranty, fraud, negligent misrepresentation, negligence, and unjust enrichment. GSK moved to dismiss the third amended complaint under Rule 12(b)(6).

On October 15, 2013, 6 the District Court granted GSK's Rule 12(b)(6) motion to dismiss the entire complaint with prejudice, concluding it would be inequitable to permit D'Apuzzo a fourth opportunity to state a claim. The District Court dismissed all but one of D'Apuzzo's claims—for violations of the New Jersey Consumer Fraud Act, breach of implied warranty, fraud, negligent misrepresentation, negligence, and unjust enrichment—as barred by the New Jersey Products Liability Act ("PLA"), N.J. Stat. Ann. §§ 2A:58C-1 et seq., which is the exclusive basis for any New Jersey products liability action, except for express warranty and environmental tort actions.7 App. 3-4. D'Apuzzo does not appeal the dismissal of those claims.8

The District Court also dismissed D'Apuzzo's express warranty claim—which is explicitly exempt from the ambit of the PLA—for failure to allege the "exact text of the warranties, or the precise time periods these warranties were in effect." App. 5. D'Apuzzo filed this timely appeal, in which the only ruling he challenges is the dismissal of his express warranty claim.

D'Apuzzo contends GSK "expressly warranted on its labels and packaging to Plaintiffs, prescribers, and patients, that Avandia would provide assist [sic] 'in the management of type 2 diabetes mellitus' in a safe and efficacious manner."9 App. 80. But D'Apuzzo does not allege GSK made unqualified or absolute guarantees of Avandia's safety and efficacy. Nor could he make such an allegation given that the "express warranty" contained in Avandia's "labels and packaging" consists of much more than "safe and effective." The Avandia label discloses contraindications, risk factors, and potential side effects of taking the drug, thereby warning it may not be safe under all circumstances for every person. The Avandia label in effect when D'Apuzzo started taking the drug in October 2002 warned, among other things, that (1) Avandia could exacerbate congestive heart failure, (2) patients at risk for heart failure should be monitored, and (3) Avandia was contraindicated for patients with New York Heart Association Class III and IV cardiac status.10 The label was revised in 2003 to more prominently feature the cardiac side effects warning and to include data from clinical studies indicating that Avandia could increase the risk of cardiovascular events.11 GSK later added to the label a black box warning of the risk of congestive heart failure and myocardial infarction (heart attack).12 Even with these potential side effects, Avandia remains on the market today.13

II.

A.

Under Federal Rule of Civil Procedure 12(b)(6), we assume plaintiff's well-pleaded, nonconclusory factual allegations to be true. See Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). D'Apuzzo contends he adequately pleaded his express warranty claim because (1) New Jersey law does not require the use of particular language for the creation of an express warranty and (2) his third amended complaint referenced general representations of safety and efficacy contained in Avandia's labeling and package inserts as the source of the express warranty. The District Court disagreed, concluding that D'Apuzzo's failure "to allege the exact text of the warranties, or the precise time periods these warranties were in effect" was fatal to his express warranty claim. App. 5. We agree with the District Court that D'Apuzzo's allegations were general and vague. But we need not decide whether D'Apuzzo was required to provide the exact text and time period of the warranties because we can decide this case on another ground— D'Apuzzo's failure to state an express warranty claim as a matter of New Jersey law. See Brightwell v. Lehman, 637 F.3d 187, 191 (3d Cir. 2011) ("We may affirm a district court for any reason supported by the record."). Our decision turns not on the federal pleading standard and whether D'Apuzzo adequately pleaded the content of the express warranty he alleged, but instead on whether the language of GSK's label creates an express warranty under New Jersey law.14 Because we conclude the statement that Avandia is "safe and effective" for its intended use contained on its label disclosing contraindications, risk factors, and potential side effects of the drug is not sufficient as a matter of law to state a New Jersey express warranty claim, we will affirm.

B.

D'Apuzzo must state a valid express warranty claim as a matter of New Jersey substantive law to avoid dismissal.15 In order to state a claim for breach of express warranty under New Jersey law, plaintiff...

To continue reading

FREE SIGN UP