Prohias v. Pfizer, Inc.

• Decision Date: 24 April 2007
• Docket Number: No. 05-22658-CIV.,05-22658-CIV.
• Citation: 485 F.Supp.2d 1329
• Parties: Nilda PROHIAS, et. al., Plaintiffs v. PFIZER, INC., Defendant.
• Court: U.S. District Court — Southern District of Florida

485 F.Supp.2d 1329

Nilda PROHIAS, et. al., Plaintiffs v. PFIZER, INC., Defendant.

No. 05-22658-CIV.

United States District Court, S.D. Florida, Miami Division.

April 24, 2007.

COPYRIGHT MATERIAL OMITTED

Craig R. Spiegel, Hagens Berman Sobol Shapiro LLP, Seattle, WA, Howard Mitchell Bushman, Lance August Harke, Sarah Becket Clasby, Harke & Clasby, Miami, FL, for Plaintiffs.

Barbara Wrubel, Mark S. Cheffo, Skadden Arps Slate Meagher & Flom, New York, NY, Edward Walter Gerecke, Carlton Fields, Tampa, FL, for Defendant.

ORDER ON PFIZER'S MOTION TO DISMISS CLAIMS AGAINST NILDA PROHIAS, NANCY YOST, THE TEAMSTERS PLAN, AND HEALTH CARE FOR ALL

JORDAN, District Judge.

The plaintiffs filed a proposed nationwide class action, alleging that Pfizer engaged in false and misleading advertising of its cholesterol-lowering drug, Lipitor. Pending is Pfizer's motion to dismiss [D.E. 19]. Because of the quantity of issues raised in Pfizer's motion and the various state laws that apply to each named plaintiff, I address Pfizer's arguments only in part in this order. For the reasons stated below, Pfizer's motion to dismiss the complaint as to Nilda Prohias, Nancy Yost, the Teamsters Plan, and Health Care for All is GRANTED.

I. FACTS¹

A. LIPITOR'S FDA APPROVALS

Pfizer is the manufacturer of Lipitor, the most widely prescribed statin for lowering cholesterol. It is undisputed that Lipitor successfully lowers cholesterol. Lipitor was first approved by the Food and Drug Administration ("FDA") in 1996, as an adjunct to diet, to reduce elevated LDL-C cholesterol in patients with primary hypercholesterolemia. See Complaint at ¶ 93. On July 10, 1998, the FDA approved Lipitor as an adjunct to diet to reduce elevated total cholesterol and elevated LDL-C cholesterol in all patients. Id. at ¶ 94. On July 30, 2004, Lipitor was approved for the first time for the prevention of cardiovascular disease in certain patients. Specifically, Lipitor received additional FDA labeling approval for reducing the risk of heart attacks "[i]n adults without clinically evident coronary heart disease, but with multiple risk factors for coronary heart disease, such as age ≥ 55 years, smoking, hypertension, low HDL-C, or a family history of early coronary heart disease." Id. at ¶ 96.

In sum, until July 30, 2004, Lipitor was not approved for any patients for reducing the risk of coronary heart disease ("CHD"). Rather, the FDA concluded that, notwithstanding the cholesterol-lowering benefits of Lipitor, the "relationship between Lipitor's lipid-lowering effect and its effect on cardiovascular diseases or survival is not known." Id. at ¶ 8. After July 30, 2004, Lipitor was approved for reducing the risk of heart attacks in adults with multiple risk factors, but its approval was still not extended to include "reduction in cardiovascular morbidity and mortality." Id. at ¶ 97.

B. PFIZER'S ADVERTISING CAMPAIGN FOR LIPITOR

Pfizer's print and television advertisements for Lipitor frequently show pictures of women or the elderly with their cholesterol numbers attached with text warning that "high cholesterol is a risk factor for heart disease." Complaint, at ¶¶ 5-6; see id. at ¶ 107 (undated Lipitor advertisement claiming that high cholesterol is a risk factor for heart disease). The plaintiffs allege, however, that there is no scientific support for the claim that Lipitor reduces the risk of heart disease in women or elderly patients who do not already have heart disease or diabetes. The plaintiffs allege that the purpose of the advertisements is to create the impression that Lipitor protects against heart disease, thus misleading consumers as to the benefits of Lipitor. In particular, as a result of pfizer's advertising campaign, 34% of the individuals polled in a recent survey indicated that they believe that Lipitor has been shown to prevent heart attacks. See id. at ¶ 91. The advertisements for Lipitor encourage consumers to ask their doctor if Lipitor is right for them, thus inducing them to visit a doctor.

Pfizer also engages in promotion of Lipitor to physicians. Specifically, Pfizer employs thousands of salespersons to call on physicians and promote Pfizer products by passing out literature and promotional materials regarding the benefits of Lipitor, including prevention of heart disease in women and elderly patients who have not been diagnosed with heart disease. Id. at ¶¶ 82-84.

In sum, the plaintiffs allege that Pfizer has engaged in a multifaceted advertising campaign to convince doctors and consumers that Lipitor reduces heart disease, even though there was not scientific evidence of such benefits.² Such misleading advertising, according to the plaintiffs, creates artificial demand for Lipitor and an artificial increase in Lipitor's price, thus causing economic injury to Lipitor purchasers. But the plaintiffs do not allege that Lipitor failed to lower their cholesterol levels, or that they were physically injured in any way by taking Lipitor.

C. THE CLASS PLAINTIFFS ADDRESSED IN THIS ORDER

I. NILDA PROHIAS

Ms. Prohias is a resident of Florida. She has not been diagnosed with heart disease or diabetes. It is unknown whether she has multiple risk factors for heart disease. According to the complaint, Ms. Prohias "pays for Lipitor." Id. at ¶ 17. The parties agree that Ms. Prohias' claims are governed by Florida law.

ii. NANCY YOST

Ms. Yost is a resident of New York. She has not been diagnosed with heart disease or diabetes. It is unknown whether she has multiple risk factors for heart disease. According to the complaint, Ms. Yost "pays for Lipitor." Id. at ¶ 20. The parties agree that Ms. Yost's claims are governed by New York law.

iii. THE TEAMSTERS PLAN

Teamsters Local No. 35 Health Plans (the "Teamsters Plan") is a trust fund established and maintained pursuant to § 302(c)(5) of the Labor Management Relations Act, 29 U.S.C. § 186(c)(5), and is an employee benefit plan established and maintained pursuant to the Employee Retirement Income Security Act, 29 U.S.C. § 1001, et seq, for the purpose of providing health benefits, including prescription drug coverage, to eligible plan participants and beneficiaries. According to the complaint, the Teamsters Plan provides prescription drug coverage for approximately 4,500 participants in New Jersey. The complaint does not, however, allege that the Teamsters Plan or its participants paid for Lipitor during the relevant time period or even that Lipitor is one of the prescription drugs covered by the Teamsters Plan. The parties agree that the Teamsters Plan's claims are governed by New Jersey law.

iv. HEALTH CARE FOR ALL

Health Care for All ("HCFA") is a consumer advocacy organization that has led the fight in Massachusetts to expand access to affordable, quality health care. HCFA does not assert that it purchases, or that it has ever purchased, Lipitor. It asserts associational standing through its member, Steven Rosenfeld, who has paid out of pocket for Lipitor.

II. LEGAL STANDARD

A motion to dismiss is granted only when the movant demonstrates "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The factual allegations of the complaint are taken as true and construed in the light most favorable to the plaintiff. See McCulloch v. PNC Bank Inc., 298 F.3d 1217, 1220 (11th Cir.2002). The scope of the court's review of a motion to dismiss is limited to the four corners of the complaint. See St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir. 2002).

III. DISCUSSION

A. THE TEAMSTERS PLAN

As to the Teamsters Plan, the complaint must be dismissed for failure to state a claim because the complaint does not allege that the Teamsters Plan suffered any damages. Damages, or some ascertainable loss, is undisputedly an element of each of its claims. First, the Teamsters Plan's consumer fraud act claim is governed by N.J. Stat. § 56:8-19, which provides that:

Any person who suffers any ascertainable loss of moneys or property, real or personal, as a result of the use or employment by another person of any method, act, or practice declared unlawful under this act or the act hereby amended and supplemented may bring an action or assert a counterclaim therefor in any court of competent jurisdiction.

(emphasis added). Accordingly, to state a claim under the New Jersey Consumer Fraud Act, a plaintiff must allege each of three elements (1) unlawful conduct by the defendants; (2) an ascertainable loss on the part of the plaintiff; and (3) a causal relationship between the defendants' unlawful conduct and the plaintiffs ascertainable loss. See Carton v. Choice Point, 450 F.Supp.2d 489, 498 (D.N.J.2006). Likewise, to state a claim for negligent misrepresentation under New Jersey law, a plaintiff must plead some injury which resulted to the plaintiff by acting in justifiable reliance upon the defendant's misrepresentation. See Kuhnel v. CNA Ins. Companies, 322 N.J.Super. 568, 581, 731 A.2d 564 (N.J.Super.A.D.1999) (stating elements of claim for negligent misrepresentation under New Jersey law); Adamson v. Ortho-McNeil Pharmaceutical, Inc., 463 F.Supp.2d 496, 504 (D.N.J.2006) (same). Finally, to state a claim for unjust enrichment, a plaintiff must plead that (1) he conferred a benefit on the defendant, who has knowledge thereof; (2) the defendant voluntarily accepts and retains the benefit conferred; and (3) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff. See VRG Corp. v. GKN Realty Corp., 135 N.J. 539, 554, 641 A.2d 519 (N.J.1994); Adamson, 463 F.Supp.2d at 505.

The Teamsters Plan, however, does not allege that it, or any of its members, ever purchased Lipitor. The only arguably relevant allegation made by the Teamsters Plan is that it provides prescription drug coverage for...