Opinion
C. A. N20C-06-231 DJB
12-29-2022
SUZANNE KNAUER, Individually and as Guardian ad litem for her child S.K., Plaintiff, v. GLAXOSMITHKLINE, LLC, Defendant.
Raeann Warner, Esquire, JACOBS & CRUMPLAR PA, Wilmington, Delaware; Jonathan Nace, Esquire, NIDEL & NACE, P.L.L.C, Rockville, Maryland; (admitted pro hac vice) for Plaintiffs. Brian Rostocki, Esquire, and Justin Forcier, Esquire, REED SMITH LLP, Wilmington, Delaware; Andrew Bayman, Esquire, TaCara Harris, Esquire, Meredith Redwine, Esquire, and Aaron Parks, Esquire, KING & SPALDING LLP, Atlanta, Georgia; (admitted pro hac vice) for Defendants.
On Defendant Glaxosmithkline LLC's Motion to Dismiss - GRANTED in part, DENIED in part.
Raeann Warner, Esquire, JACOBS & CRUMPLAR PA, Wilmington, Delaware; Jonathan Nace, Esquire, NIDEL & NACE, P.L.L.C, Rockville, Maryland; (admitted pro hac vice) for Plaintiffs.
Brian Rostocki, Esquire, and Justin Forcier, Esquire, REED SMITH LLP, Wilmington, Delaware; Andrew Bayman, Esquire, TaCara Harris, Esquire, Meredith Redwine, Esquire, and Aaron Parks, Esquire, KING & SPALDING LLP, Atlanta, Georgia; (admitted pro hac vice) for Defendants.
MEMORANDUM OPINION
BRENNAN, J.
I. Background
This suit arises from Plaintiff Suzanne Knauer's (hereinafter "Knauer") use of Paxil, a prescription anti-depressant, while pregnant, resulting in alleged injuries to her and her child, Plaintiff S.K. (hereinafter "S.K.") Defendant Glaxosmithkline, LLC (hereinafter "GSK"), at the relevant time alleged, was the manufacturer of Paxil. Paxil is an antidepressant and anti-anxiety drug that belongs to a group of drugs called selective serotonin reuptake inhibitors (SSRIs).
Plaintiff Suzanne Knauer proceeds individually and as guardian ad litem for her child S.K.
Third Am. Compl. ¶ 4, Nov. 4, 2021 (D.I. 65).
Id. ¶ 10.
Knauer alleges that she was prescribed and used Paxil as directed, including during all three trimesters of her pregnancy. S.K. was born on August 5, 2003, and, as a consequence of taking Paxil, S.K. suffers from "irreversible brain damage," which "manifest[s] as severe behavioral, neurological and emotional injuries." The Amended Complaint explains how SSRIs function and references scientific studies purportedly linking SSRIs to an increased risk of autism and autism spectrum disorder ("ASD").
Id. ¶ 9.
Id. ¶¶ 9, 69.
Id. ¶¶ 15-62.
Plaintiffs assert claims for Strict Products Liability-Design Defect (Count I); Negligence (Count II); Breach of Implied Warranty (Count III); Breach of Express Warranty (Count IV). In addition to these claims, Plaintiffs seek an award of punitive damages.
Mislabeled as Count IV in the Third Amended Complaint.
Id. ¶¶ 73-109.
Id. ¶ 111.
The initial Complaint case was originally filed on July 9, 2020, which was a consolidated action brought by both the Knauer Plaintiffs and another set of mother- child Plaintiffs. GSK moved to dismiss the initial Complaint on December 14, 2020. In lieu of further briefing, the parties stipulated to the filing of an Amended Complaint on January 6, 2021. Thereafter, GSK moved to dismiss the Amended Complaint on January 28, 2021. During briefing, Plaintiffs stipulated to the dismissal of some claims, but opposed dismissal as to the remaining claims. After briefing was complete, the Court ordered Plaintiffs to file a Second Amended Complaint to reflect the stipulated dismissal, which Plaintiffs filed on April 20, 2021. Defendant then filed its motion to dismiss the Second Amended Complaint on May 20, 2021.
N20C-06-231 DJB-D.I. No. 1.
N20C-06-231 DJB-D.I. No. 23.
N20C-06-231 DJB-D.I. Nos. 28.
N20C-06-231 DJB-D.I. No. 35.
N20C-06-231 DJB-D.I. No. 38.
N20C-06-231 DJB-D.I. Nos. 43-44.
N20C-06-231 DJB-D.I. No. 47.
Shortly after briefing was complete on Defendant's motion to dismiss the Second Amended Complaint, a new judicial officer was assigned to preside over this case. Initially, the parties disagreed over the applicable law and argued the merits of the motion under differing state law. The day before scheduled argument on the motion, the parties notified the Court that they had agreed that the law of Plaintiffs' respective home state should apply to that individual Plaintiff's claims.Accordingly, the Court ordered that the parties should sever the action and file a new Complaint in accordance with applicable state law in each docket. As a result, Maryland substantive law applies to the Knauer Plaintiffs.
N20C-06-231 DJB-D.I. No. 52.
Compare id., with Pls.' Resp. to Mot. to Dismiss Second Am. Compl. at 4-10, June 21, 2021 (D.I. 49).
N20C-06-231 DJB-D.I. No. 58.
Id.
Pursuant to the Court's Order, Knauer filed the latest Amended Complaint on November 4, 2021. GSK filed the instant motion to dismiss on March 16, 2022.Thereafter, oral argument was held. This is the Court's decision on GSK's latest motion to dismiss.
N20C-06-231 DJB-D.I. No. 65.
N20C-06-231 DJB-D.I. No. 70.
II. Standard of Review
"Under Superior Court Civil Rule 12(b)(6), the legal issue to be decided is, whether a plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint." Under this Rule, the Court must:
Vinton v. Grayson, 189 A.3d 695, 700 (Del. Super. 2018) (quoting Superior Court Civil Rule 12(b)(6)).
(1) accept all well pleaded factual allegations as true, (2) accept even vague allegations as "well pleaded" if they give the opposing party notice of the claim, (3) draw all reasonable inferences in favor of the non-moving party, and (4) not dismiss the claims unless the plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances.
Id. (quoting Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Hldgs. LLC, 27 A.3d 531, 535 (Del. 2011)) (citing Prince v. E.I. DuPont de Nemours & Co., 26 A.3d 162, 166
"The Court, however, need not accept conclusory allegations unsupported by specific facts or … draw unreasonable inferences in favor of the non-moving party." "If any reasonable conception can be formulated to allow Plaintiffs' recovery, the motion must be denied."
Intermec IP Corp. v. TransCore, LP, 2021 WL 3620435, at *11 (Del. Super. Ct. Aug. 16, 2021) (citing Prince v. E.I. DuPont de Nemours & Co., 26 A.3d 162, 166 (Del. 2011), overruled on other grounds by Ramsey v. Ga. S. Univ. Advanced Dev. Ctr., 189 A.3d 1255, 1277 (Del. 2018)).
Vinton, 189 A.3d at 700 (citing Cent. Mortg. Co., 27 A.3d at 535).
Under Superior Court Civil Rule 9(b) "all averments of fraud, negligence, or mistake … shall be stated with particularity." "The particularity requirement embodied in Rule 9(b) operates to: (1) provide defendants with enough notice to prepare a defense; (2) prevent plaintiffs from using complaints as fishing expeditions to unearth wrongs to which they had no prior knowledge; and (3) preserve a defendant's reputation and goodwill against baseless claims."
Del. Super. Ct. Civ. R. 9(b).
In re Benzene Litig., 2007 WL 625054, at *6 (Del. Super. Ct. Feb. 26, 2007).
III. Discussion
GSK moves to dismiss the Third Amended Complaint on two grounds. First, GSK argues that the Third Amended Complaint fails to satisfy Delaware's pleading standard and should be dismissed in its entirety with prejudice. Second, GSK maintains that several of Plaintiffs' claims substantively fail, including the request for punitive damages. Specifically, GSK argues that all of Plaintiffs' claims fail as a matter of Maryland law except for Count II (Negligence) of the latest Amended Complaint.
A. The Third Amended Complaint Provides Adequate Notice Under Delaware's Pleading Standard.
GSK moves to dismiss the Amended Complaint as conclusory and failing to "plead the most basic facts to support [the asserted] claims." GSK asserts that the Amended Complaint fails to allege facts regarding: 1) Knauer's decision to use Paxil and what warnings or representations she or her doctors relied upon; 2) when GSK knew or should have known of the alleged defect in Paxil, whether this knowledge preceded Knauer's use of Paxil, and what specific warnings were given at the time she took Paxil; 3) the specific nature of S.K.'s alleged injuries; and 4) scientific data showing causal link between Paxil and the alleged injuries.
Def.'s Opening Br. at 4, Mar. 16, 2022 (D.I. 70).
Id. at 4.
Plaintiffs maintain the Amended Complaint is well-pled. Plaintiffs allege the warnings on the Paxil label were inadequate "regarding its use during pregnancy and the risk of permanent, irreversible damage to the developing brain." Plaintiffs further contend the Amended Complaint sufficiently pleads when the harm occurred. Plaintiffs argue the Complaint "specifically" refers to S.K.'s injuries as "irreversible brain damage" and Delaware's pleading standard does not require anything more. Finally, Plaintiffs claim the scientific literature cited and referenced in the Third Amended Complaint addresses the causal link between "SSRI medications and the development of irreversible brain damage."
Pl.'s Opp'n Br. at 2, Apr. 8, 2022 (D.I. 75).
Id.
Id. at 2-3.
Id. at 3.
Plaintiffs has sufficiently alleged her claims to provide GSK with adequate notice to prepare a defense. Plaintiffs allege that S.K. was born on August 5, 2003, and that Knauer was prescribed and took Paxil during all three trimesters of her pregnancy. Plaintiffs further allege Paxil's label and warnings were inadequate "regarding its use during pregnancy and the risk of permanent, irreversible damage to the developing brain." Plaintiffs maintain GSK knew or should have known of the risks using Paxil posed to pregnant women, and as a result of its failure to warn the medical community, including the medical professionals who prescribed Paxil to Knauer, Plaintiffs would have avoided injury.
Third Am. Compl. ¶¶ 8-9.
Id. ¶ 75.
Id. ¶¶ 63, 65-67; 91.
Although allegations regarding the specific nature of S.K.'s injury are arguably vague, GSK does not cite to, nor has the Court found any authority requiring Plaintiffs to plead a specific diagnosis or ailment to satisfy the pleading standards. At this stage of the proceedings, the Amended Complaint adequately pleads an injury: a birth defect resulting in irreversible brain damage. Plaintiffs' Complaint references and cites to various studies linking SSRIs, a class of drug to which Paxil belongs, to neurodevelopmental harm, which is sufficient at this stage in litigation.
Id. ¶ 69.
Id. ¶¶ 15-62. GSK takes issue with Plaintiffs' reliance on scientific studies which purportedly link SSRIs generally to neurodevelopmental injury. Def.'s Opening Br. at 6, n.5. However, Paxil is classified as an SSRI drug, and at the pleading stage, such allegations supporting a causal relationship between Paxil and alleged injuries sufficient to withstand a motion to dismiss.
Such claims are sufficient under the reasoning in this court's decision in In re Benzene and defendant is sufficiently on notice of the claims. The Complaint provides notice of the product alleged to have caused the harm, sufficient notice of injuries for this stage in the litigation and how and when the alleged harm occurred.Plaintiffs have specifically identified Paxil and provided a time frame of exposure.In addition, Plaintiffs cite to scientific literature purportedly demonstrating how Paxil caused the alleged injuries. As a result, Plaintiffs have adequately pled that GSK's product was defective and as a result, harmed resulted and GSK is properly on notice of these claims. While it is certainly the case that the Amended Complaint could have been drafted more artfully, Plaintiffs have sufficiently put GSK on notice to prepare an adequate defense.
In re Benzene, 2007 WL 625054, at *14 (Del. Super. Ct. Feb. 26, 2007) (in reviewing a products liability complaint, finding the complaint at issue failed to sufficiently plead a claim against some defendants but met its burden as to others, reasoning in part that the narrow time frame and the focused class of products permitted the defendant to develop an adequate defense.)
Id. See also Hupan v. All. One Int'l., Inc., 2015 WL 7776659, at *11-12 (Del. Super. Ct. Nov. 30, 2015) (finding mere allegations of "other products" and "other pesticides" as defective was insufficient to meet Delaware's pleading standard and dismissed a complaint on the basis that the defendant lacked "adequate notice regarding what products caused the harm, the cause of Plaintiffs' injuries, how they occurred or when the harm occurred.).
Third Am. Compl. ¶ 9.
Id. ¶¶ 15-62.
B. GSK's Substantive Claims
GSK argues that all of Plaintiffs' claims, except for her claim of negligence, fail substantively fail under Maryland law. GSK additionally contends that Plaintiffs' request for punitive damages fails under Maryland law.
In its opening brief, GSK further argued that the Court should dismiss Plaintiffs' manufacturing defect claim, to the extent that one is alleged. In their response, Plaintiffs noted that she is not pursuing a manufacturing defect claim. Accordingly, the Court will not address this issue.
1. The Court Should Order Additional Briefing with Respect to Plaintiff's Strict Products Liability Claim
In its opening brief, GSK argues that Plaintiffs' strict products liability design defect claim fails for three reasons: (1) Maryland law does not recognize design defect claims involving prescription drugs; (2) Plaintiff has not pled a feasible alternative design or formulation, as required for design defect claims under Maryland law; and (3) design defect claims involving prescription drugs under state law are pre-empted by federal law. Plaintiffs retort that the strict products liability claim is based upon a theory of failure to warn, not design defect. Plaintiffs further argue that Maryland law recognizes failure to warn claims in the context of prescription drugs, and that such claims are not pre-empted by federal law. GSK, in its reply brief, reserved the right to argue that Plaintiffs' failure to warn claim, if it survives the instant motion to dismiss, is pre-empted under federal law.
Def.'s Opening Br. at 6-8.
Pl.'s Opp'n Br. at 4. Notably, Count I is titled "Strict Products Liability-Design Defect" and multiple paragraphs in the Third Amended Complaint refer to Paxil as being defective in its design and/or formulation. Third Am. Compl. ¶¶ 68, 77, 81.
Pl.'s Opp'n Br. at 4-6.
Def.'s Reply Br. at 3, n.2, Apr. 22, 2022 (D.I. 77).
Plaintiffs' strict products liability claim under a failure to warn theory survives pending further briefing on whether such a claim is pre-empted under federal law. GSK's frustration as to why Plaintiffs have failed to clarify the specific claim they intend to bring under Count I is valid. However, the latest Amended Complaint references GSK's alleged failure to adequately warn of the risks Paxil posed to pregnant women or women who could become pregnant in multiple paragraphs.In recognition of Delaware public policy favoring deciding cases on their merits,Plaintiffs' strict products liability claim survives. Defendants' motion is DENIED without prejudice, and further briefing will be allowed on this issue following a period of discovery.
Third Am. Compl. ¶¶ 75, 78-80, 82.
Waterhouse v. Hollingsworth, 2013 WL 5803136, at *3 (Del. Super. Ct. Oct. 10, 2013) (citing Keener v. Isken, 58 A.3d 407, 409 (Del. 2013)).
2. Maryland Law Requires Prior Notice by the Purchaser in a Products Liability Suit
GSK argues Plaintiffs' breach of implied warranty claim must fail under Maryland law, as Plaintiffs failed to provide notice or allege notice was given to GSK prior to filing this lawsuit. In response, Plaintiffs maintain that the notice provision GSK relies upon is not applicable to personal injury actions. Plaintiffs alternatively argue that, even if the notice provision were to apply, Maryland law has interpreted the provision to only require the actual buyer of the product to give notice, and thus, the provision would not operate to bar S.K.'s claim.
Def.'s Opening Br. at 9.
Pl.'s Opp'n Br. at 6-7.
Id. at 8-9.
Maryland law requires a buyer to provide notice to the seller as a condition precedent to bringing a breach of implied warranty claim under Md. Code Ann. Com. Law § 2-607(3)(a). Maryland has "interpreted this provision to require the buyer to inform the seller of the breach, the particular goods that have been impaired, and set forth the nature of the nonconformity." A buyer's notice to a seller is a "prerequisite" to filing a breach of implied warranty claim.
See Md. Code Ann., Com. Law § 2-607(3)(a); see also Doll v. Ford Motor Co., 814 F.Supp.2d 526, 542 (D. Md. 2011).
Doll, 814 F.Supp.2d at 542.
Id. (citing Lynx, Inc. v. Ordnance Prods., 327 A.2d 502, 513 (Md. 1974)).
Despite Plaintiffs' contentions, Maryland law applies the notice requirement of Md. Code Ann. Com. Law § 2-607(3)(a) to personal injury actions. Plaintiffs' reliance on Firestone Tire & Rubber Co. v. Cannon is misplaced. In Firestone, the tire of plaintiff's tractor-trailer blew out, causing damage to the trailer and loss of income. Plaintiff sued not only the immediate seller of the tire, but all companies involved in the manufacturing and re-sale of the tire. The question before the court was whether the plaintiff was required to provide prior notice to all companies or only the immediate seller to sustain the breach of implied warranty claim.
See Frericks v. General Motors Corp., 363 A.2d 460 (Md. 1976) (holding that prior notice requirement does not apply to non-purchaser beneficiary of seller's warranty in the context of personal injury action); Morris v. Biomet, Inc., 491 F.Supp.3d 87 (D. Md. 2020) (dismissing breach of implied warranty claim under Maryland law for failure to provide prior notice in the context of a personal injury action involving a medical device).
452 A.2d 192 (Md. Ct. Spec. App. 1982).
Id. at 193.
Id. at 192-93.
Plaintiffs cited Firestone for the proposition that Maryland law does not impose a notice requirement for breach of implied warranty claims in the context of personal injury actions. However, the Firestone court distinguished Frericks v. General Motors Corp., because the Court of Appeals of Maryland in that case applied Md. Code. Ann. Com. Law § 2-607(3)(a) to a personal injury action. By factually distinguishing Frericks on this basis, the Firestone court tacitly acknowledged that Md. Code Ann. Com Law § 2-607(3)(a) applies to personal injury actions. In fact, in a personal injury action involving a medical device, the court in Morris v. Biomet, Inc. dismissed a breach of implied warranty claim for plaintiff's failure to provide prior notice to the seller. Accordingly, Md. Code. Ann. Com. Law § 2-607(3)(a)'s prior notice requirement applies to personal injury actions.
Pl.'s Opp'n Br. at 7-8.
Firestone, 452 A.2d at 195.
See Id.
Morris, 491 F.Supp.3d at 106.
Plaintiffs are correct, however, that the prior notice requirement only applies to buyers of a good, and not third-party beneficiaries of a seller's implied warranty. In Frericks, the Court of Appeals of Maryland addressed whether a third-party beneficiary to a seller's implied warranty is required to provide prior notice before bringing a claim for breach of that implied warranty. The court noted that Md. Code Ann. Com. Law § 2-318 extended breach of warranty claims to certain third-party beneficiaries. In Frericks, a passenger of an automobile brought suit against the manufacturer for an implied breach of warranty, among other claims. The court concluded that Md. Code. Ann. Com. Law § 2-607(3)(a)'s unambiguous language only applied the notice requirement to buyers, and thus did not require the passenger-plaintiff to provide prior notice before filing claim.
Frericks, 363 A.2d at 463.
Id.
Id. at 461.
Id. at 465-66.
Plaintiffs are correct that S.K. is not a buyer and thus, was not required to provide prior notice before filing a claim for breach of implied warranty. GSK argues that Plaintiffs do not allege that S.K. was a third-party beneficiary, and at minimum, Knauer's claim for breach of implied warranty, to the extent such a claim is asserted, must be dismissed as she was the buyer of Paxil.
Pl.'s Opp'n Br. at 8-9.
Def.'s Reply Br. at 3-4, n.3.
Under Frericks, Maryland law does not require third-party beneficiaries to a seller's warranty to provide prior notice to filing a breach of implied warranty claim. Although the latest Amended Complaint does not specifically allege that S.K. is a third-party beneficiary, in drawing all reasonable inferences in Plaintiffs' favor, Plaintiffs' allegations are sufficient to withstand a motion to dismiss. To the extent Knauer also asserts a claim for breach of implied warranty individually, such a claim fails under Maryland law for failure to allege or provide prior notice to GSK.
3. Plaintiff's Breach of Express Warranty Claim
GSK contends that Plaintiffs have failed to allege an express warranty upon which they relied, and as a result, Plaintiffs express warranty claim fails under Maryland law. Plaintiffs argue their paragraph 105 of the latest Amended Complaint alleges GSK's express warranties, including warranties "contained in direct-to-consumer advertising and other promotional and marketing campaigns, Paxil product information sheets given to patients with their prescriptions, and other public communications and representations[.]" In its reply brief, GSK maintains that such allegations are too broad to support a claim for breach of express warranty under Maryland law.
Def.'s Opening Br. at 10.
Pl.'s Opp'n Br. at 9.
Def.'s Reply Br. at 4-5.
"To state a claim for breach of express warranty under Maryland law, a plaintiff must allege 1) a warranty existed; 2) the product did not conform to the warranty; and 3) the breach proximately caused the injury or damage." To adequately allege a breach of express warranty claim, a plaintiff must set forth the "terms and conditions of the warranty."
Robinson v. Am. Honda Motor Co., Inc., 551 F.3d 218, 223 (4th Cir. 2009) (quoting SpinCycle, Inc. v. Burcin Kalender, 186 F.Supp.2d 585, 589 (D. Md. 2002)).
Thomas v. Ford Motor Credit Co., 429 A.2d 277, 283 (Md. Ct. Spec. App. 1981).
Under this standard deferential standard of review, Plaintiffs' breach of express warranty claim survives. Plaintiffs allege that GSK warranted that Paxil was "safe for use during pregnancy and in women of childbearing age, including those intending to become pregnant" and as such, as this stage in the proceedings, satisfied their burden. To be clear, Plaintiffs are "not, at the pleading stage, required to make an evidentiary 'showing' that there was an express warranty. [Plaintiffs are], however, required to set forth an 'averment' that [is] 'simple, concise, and direct,' and that [contains] 'such statements of fact as may [have been] necessary to show the pleader's entitlement to relief…"
Pulte Home Corp. v. Parex, Inc., 923 A.2d 971, 996 (Md. Ct. Spec. App. 2007).
It is incumbent upon Plaintiffs, following a period of discovery, to satisfy their continuing burden, at a different standard if challenged further during this litigation. The record as it exists at this point in time, evidences Paxil's label during the relevant time period stated, in pertinent part, that "[t]here are no adequate and well-controlled studies in pregnant women. Because animal reproduction studies are not always predictive of human response, this drug should be used during pregnancy only if the potential benefit justifies the potential risk to the fetus." Despite this, in viewing the facts in the light most favorable to Plaintiffs, the latest Amended Complaint sufficiently sets forth a claim for breach of an express warranty. Accordingly, GSK's motion as to Count IV is DENIED.
Def.'s Opening Br., Ex. B at 15.
Plaintiff mistakenly labels her breach of express warranty claim as Count V in the Third Amended Complaint.
4. Punitive Damages
GSK argues that Plaintiffs' claim for punitive damages fail as a matter of law because Plaintiffs have failed to plead that GSK acted with actual malice. Plaintiffs argue the Complaint alleges GSK knew about Paxil's defect. Plaintiffs maintain such allegations are sufficient to entitle them to discovery to prove GSK acted with malice.
Def.'s Opening Br. at 12.
Pl.'s Opp'n Br. at 10.
Id.
Generally, "the law of the forum governs procedural matters." Foreign procedural law, however, will apply "when the law of a foreign state is applied to substantive issues [and] the procedural law of the foreign state is 'so inseparably interwoven with substantive rights as to render a modification of the foregoing rule necessary, lest a party be thereby deprived of his legal rights.'" "In practice, this Court has applied foreign procedural law as if it were substantive law where failure to do so would be outcome-determinative." As a general rule, pleading requirements are considered procedural issues.
Chaplake Holdings, LTD v. Chrysler Corp., 766 A.2d 1, 5 (Del. 2001).
Id. (quoting Monsanto Co. v. Aetna Cas. and Sur. Co., 1994 WL 317557, at *4 (Del. Super. Ct. Apr. 15, 1994).
U.S. Dominion, Inc. v. Fox News Network, LLC, 2021 WL 5984265, at *18 (Del. Super. Ct. Dec. 16, 2021) (citing Meyers v. Intel Corp., 2015 WL 227824, at *4 (Del. Super. Ct. Jan. 15, 2015)).
See U.S. Dominion, 2021 WL 5984265, at *20 (holding that Delaware's procedural pleading requirements apply); see also Meyers, 2015 WL 227824, at *4 (concluding that "Delaware's notice pleading standards does not deprive Intel of its legal rights," in the context of a request for exemplary damages).
GSK's contentions are based upon Maryland's pleading standard for punitive damages. As a result, the Court is required to determine whether Maryland's pleading standard is "so inseparably interwoven with substantive rights that application of Delaware procedural law would deprive those substantive rights."
US Dominion, 2021 WL 5984265, at *18 (internal quotation marks omitted).
To support a request for punitive damages under Maryland law, a plaintiff must "allege, in detail, facts that, if proven true, would support the conclusion that the act complained of was done with actual malice." In Hill v. Brush Engineered Materials, Inc., the United States District Court of the District of Maryland, applying Maryland law, found that allegations stating that a defendant "knowingly manufactured and distributed a harmful product but does not include specific factual allegations to support that charge," do not meet Maryland's "requirement of a high degree of specificity from a plaintiff seeking punitive damages." Conversely, Delaware applies a notice pleading standard to requests for punitive damages. In White v. APP Pharmaceuticals, LLC, this Court found that a request for punitive damages withstood a motion to dismiss based upon allegations that "each [d]efendant had knowledge of the potentially dangerous side effect [of its product] known as HIT, and nevertheless continued to sell it."
Hill v. Brush Engineered Materials, Inc., 383 F.Supp.2d 814, 824-25 (D. Md. 2005) (quoting Scott v. Jenkins, 690 A.2d 1000, 1008 (Md. 1997)).
Id. at 825 (internal quotation marks omitted).
Meyers, 2015 WL 227824, at *4 ("Although Colorado's rules for pleading exemplary damages differs from Delaware's notice pleading standards, applying Delaware's notice pleading standards does not deprive Intel of its legal rights.").
White v. APP Pharm. LLC, 2011 WL 2176151, at *3 (Del. Super. Ct. Apr. 7, 2011).
In Meyers v. Intel Corp., this Court compared Colorado's pleading standard for exemplary damages, which required, among other things, a plaintiff to request such damages by amending their pleadings post-discovery, to Delaware's notice pleading standard. The court held that the Delaware's pleading standard applied because defendant's rights were not deprived by the differing pleading requirements. The court explained that Delaware's pleading standard, although distinct from Colorado's, "served to put [defendant] on notice of the claim being brought against it and prevent unfair surprise." In addition, the court also analyzed Delaware and Colorado's burden of proof at trial for exemplary damages.Colorado requires proof beyond a reasonable doubt, while Delaware requires proof by a preponderance of the evidence. The court found that Colorado's heightened standard would affect the trial's outcome, and was therefore, intertwined with the Colorado's substantive rights to a degree that would deprive defendant of those substantive rights.
Meyers, 2015 WL 227824, at *3-4.
Id. at *4.
Id. (citing VLIW Tech., LLC v. Hewlett-Packard Co., 840 A.2d 606, 611 (Del.2003); Griffin Corporate Services, LLC v. Jacobs, 2005 WL 2000775, at *4 (Del. Ch. Aug. 11, 2005)).
Id.
Id.
Id.
Maryland's pleading standard for punitive damages is "outcome-determinative" and thus, applies. Under Maryland law, a plaintiff is required to plead a request for punitive damages with a "high degree of specificity."Conversely, Delaware's notice pleading standard only requires that a defendant be put on notice of the claims against it. As a result, a request for punitive damages pled under Delaware's liberal pleading standard would likely fail under Maryland law. Here, while Plaintiffs' allegations are like the allegations asserted in Hill,
U.S. Dominion, 2021 WL 5984265, at *18.
Hill, 383 F.Supp.2d at 825 (quoting Scott, 690 A.2d at 1008).
Meyers, 2015 WL 227824, at *4 (noting Delaware imposes a notice pleading standard for exemplary damages).
Compare Hill, 383 F.Supp.2d at 825 ("Here, Plaintiff generally alleges that Defendant Brush knowingly manufactured and distributed a harmful product but does not include specific factual allegations to support that charge."), with Third Am. Compl. ¶ 67 ("Defendant knew or should have known that Paxil and its metabolites would cross the placenta and disrupt that sacred homeostasis of serotonin levels in the womb, so critical to normal human development.").
Plaintiffs will be afforded an opportunity, following a brief period of discovery, to amend their complaint one final time with respect to this issue alone. Should Plaintiffs fail to uncover any further evidence in support of the punitive damages claim, the allegations in the instant Complaint will fail as insufficient to meet Maryland's heightened pleading standard. However, should Plaintiffs uncover new information following this period of discovery, the Court will entertain an argument as to why an amendment would survive under Maryland pleading standards. Accordingly, the Court denies, without prejudice, GSK's Motion to Dismiss as to Plaintiffs' request for punitive damages.
IV. Conclusion
For the foregoing reasons, the Court DENIES GSK's motion as to Count I without prejudice pending additional briefing under a failure to warn theory; the Court DENIES GSK's motion as to Count III (Breach of Implied Warranty Claim) as to S.K. and GRANTS GSK's motion as to Counts III (Breach of Implied Warranty), to the extent such a claim is asserted by Knauer. In addition, the Court DENIES GSK's motion as to Count IV (Breach of Express Warranty) and DENIES, WITHOUT PREJUDICE, GSK's motion as to Plaintiffs' request for punitive damages.
IT IS SO ORDERED.