Opinion
Case No. 00-1287-JTM.
December 2000.
MEMORANDUM AND ORDER and REPORT AND RECOMMENDATION
This product liability action is before the court on Pfizer's motion to strike plaintiffs' complaint (Doc. 4) and plaintiffs' motion for sanctions (Doc. 8). Because the motion to strike is dispositive in nature, the court has prepared a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) (C). For the reasons stated below, the court recommends that the motion to strike be granted in part and denied in part. Plaintiffs' motion for sanctions shall be denied.
Background
Daryl Foster was prescribed Zoloft to help with a premature ejaculation problem. Thirty days later he committed suicide by carbon monoxide poisoning. Plaintiffs contend that Daryl's behavior changed and he became agitated, violent, and suicidal after taking Zoloft. They allege that Pfizer, the manufacturer of Zoloft, is liable for Daryl's suicide under the following product liability theories: 1) failure to properly test the drug, 2) failure to provide proper warnings, and 3) designing, manufacturing, and marketing "a drug which poses an unreasonable risk of harm to a segment of the population."
Daryl is survived by a wife, Karen Foster, and four minor children. The three plaintiffs are Foster, a conservator for the four children, and the administrator of Daryl's estate.
Pfizer moves to strike the complaint, arguing that it violates Rule 8 (a short, plain statement of plaintiffs' claims) and Rule 12(f) (immaterial, impertinent, or scandalous allegations). Plaintiffs oppose the motion, arguing that two federal judges previously denied similar requests by Pfizer to strike virtually identical complaints. Cloud v. Pfizer Inc., CV-99-627-TUC-WDB (D. Arizona); Miller v. Pfizer Inc., No. 99-1326-KHV (D.Kan.). Plaintiffs also argue that the motion to strike in this case after two losses in other cases warrants Rule 11 sanctions.
Analysis
Rule 8(a)(2) provides that a complaint "shall contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief. The purpose of Rule 8(a)(2) is "to give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests."Leatherman v. Tarrant County Narcotics Intelligence Coord. Unit, 507 U.S. 163, 168(1993) (citations and quotations omitted). As Judge Vratil noted in Miller, the statement should be "plain" to give the adverse party fair notice of the claim to answer and prepare for trial.Miller v. Pfizer, No. 99-2326 (D.Kan. Nov. 10, 1999). The statement should also be "short" because "unnecessary prolixity" places an unjustified burden on the court and defendant to determine the relevant issues from a mass of verbiage. Id. (citing Salahuddin v. Cuomo, 861 F.2d 40, 42 (2nd Cir. 1988)). The court has discretion to dismiss complaints without prejudice for failure to comply with this requirement. Double v. United States, 149 F.3d 1190 (10th Cir. 1998) (Table, text available on Westlaw, 1998 WL 327747 at *1). However, dismissal ordinarily is reserved for "those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised." Gibson v. City of Cripple Creek, 48 F.3d 1231 (10th Cir. 1995) (Table, text available on Westlaw, 1995 WL 94483 at *1) (citing Salahuddin, 861 F.2d at 42).
Pfizer's suggestion that Rule 8(a)(2) imposes a "heightened pleading standard" is incorrect and without merit. See Leatherman, 507 U.S. at 168 (Rule 8(a)(2) reflects liberal system of "notice pleading").
The primary thrust of Pfizer's Rule 8 objection that a portion of plaintiffs' complaint (entitled "Factual Background Regarding SSRI Drugs and Violence," paragraphs 8 through 50) amounts to a closing argument or a media briefing rather than a statement of claims for relief. Pfizer complains that this "background" material consists primarily of 1) closing arguments, 2) misleading citations to magazine articles, 3) allegations about other companies and their products, and 4) scurrilous assertions about the FDA. Plaintiffs counter that this court should follow the holdings in Cloud and Miller and deny the request to dismiss under Rule 8.
Plaintiffs' reference to the rulings in Cloud and Miller affords no guidance for the court. In Miller, plaintiffs voluntarily amended their complaint to delete many of the objectionable paragraphs before Judge Vratil ruled on defendant's motion to strike. Furthermore, neither party has provided copies of either the Miller amended complaint or Cloud complaint for comparison with the complaint in this case.
No written opinion was issued in Cloud. Pfizer provided a copy of the hearing transcript before Judge Browning on the motion to strike. The judge found the complaint was prolix and ordered that it not be read or disclosed to the jury. However, he denied the motion to strike.
Having scrutinized the objectionable paragraphs targeted by Pfizer, the court agrees that the complaint is prolix and contains statements which are improper at the pleading stage. However, on balance the complaint explains the nature and basis for plaintiffs' claims that Zoloft had a causal connection to Daryl Foster's suicide. Therefore the court denies Pfizer's request to dismiss. Rather than dismiss the entire complaint under Rule 8, the court will review the offending paragraphs in the analysis of Rule 12(f) which follows. See, e.g., 5 Charles Alan Wright Arthur Miller, Federal Practice and Procedure, § 1281, at 522 (2d ed. 1990) (ordinarily the court strikes only the offending parts rather than the entire complaint).
II. Fed.R.Civ.P. 12(f)
Rule 12(f) provides that "the court may order stricken from any pleading any . . . redundant, immaterial, impertinent, or scandalous matter." Rule 12(f) motions to strike are generally disfavored because they delay litigation. See FDIC v. Niver, 685 F. Supp. 766, 788 (D.Kan. 1987); Hardin v. American Electric Power, 188 F.R.D. 509, 511 (S.D.Ind. 1999). However, where a motion to strike removes redundant or immaterial clutter from the case, it serves to expedite, not delay. Hardin, 188 F.R.D. at 511. "Immaterial matter is that which has no essential or important relationship to the claim for relief, or a statement of unnecessary particulars in connection with that which is material."Miller at p. 5 (citing Data Documents, Inc. v. Watson Hughey Co., 1990 WL 37614 at * 1 (D.Kan. March 14, 1990) (emphasis added). Redundancy or immateriality is not enough to trigger the drastic remedy of striking parts of a pleading; the allegation must also be prejudicial to the defendant. Id. Prejudice occurs when the challenged pleading or allegation confuses the issues or is so lengthy and complex that it places an undue burden on the responding party. See Hoffman-Dombrowski v. Arlington Int'l Racecourse, Inc., 11 F. Supp.2d 1006, 1009 (N.D.Ill. 1998).
The court has reviewed paragraphs 8 through 50 of plaintiffs' complaint and finds a mixture of appropriate and inappropriate allegations. Paragraphs 8 through 15, 19, 22, and 27 through 50 contain allegations that Zoloft is a member of a class of drugs known as selective serotonin reuptake inhibitors (SSRI) and that those drugs pose an unreasonable risk of violent behavior or suicide for a small group of patients. The court is satisfied that those paragraphs should not be stricken as immaterial, impertinent, or scandalous. However, as discussed below, paragraphs 16 through 18, 20, 21, 23 through 26 contain immaterial, impertinent, and scandalous allegations which serve only to confuse and inflame public opinion.
For example, paragraphs 16 through 18 allege:
16. [there have been] more than 25,000 SSRI related deaths — a public health catastrophe on which the FDA, whether from regulatory ineptitude or as a coverup of that ineptitude, has maintained a stony silence, leaving the public health to the tender mercies of the drug companies for which SSRI drugs represent a seven billion dollar annual market.
17. The price to the public are these private, tragic and needless deaths, without even the small solace of a scientific explanation for the otherwise inexplicable behavior and death of their loved ones.
18. The chief of the FDA psychotropic drug section during the licensing period of the principle SSRI drug is now a consultant to Pfizer through the revolving door of regulatory-industry relationships.
(Emphasis added.) These statements are argumentative rather than "background" allegations. Moreover, the statements go well beyond notice pleading and imply some illegal or immoral conspiracy between FDA and Pfizer. The court will order those paragraphs stricken as scandalous and impertinent.
The court has carefully examined plaintiffs' product liability theories and finds no claim based on illegal activity between FDA and Pfizer.
Paragraph 20 states that Eli Lilly, the manufacturer of Prozac, fought numerous battles in public forums concerning the health risks associated with its product while Pfizer "laid low." Paragraph 21 states that public interest in the health risks of SSRI drugs diminished until recent "high profile shootings by kids on SSRI drugs and the death of at least one Hollywood celebrity . . . refocused the public's interest in the possibility that these drugs might have some causative relationship to such behavior." Whether or not Eli Lilly debated the health risks of Prozac in "public forums" or whether public interest has been "refocused" is immaterial to the theories in this case. Plaintiff's veiled references to the Columbine tragedy and the murder of Phil Hartman are merely attempts to sensationalize this complaint for publicity purposes. Accordingly, paragraphs 20 and 21 shall be stricken.
Paragraph 23 states that the symptoms and tragic results (violence and suicide) have been the subject of hundreds of lawsuits in which the drug companies have denied any relationship between their SSRI drug and suicide. That lawsuits have been filed and opposed by defendants is immaterial and irrelevant to the product liability theories in this case. Therefore paragraph 21 shall be stricken.
Paragraphs 24 and 25 are unusual and quoted below:
24. In 1998 Eli Lilly and Company purchased the patent for an isomer of its drug, which is now the subject of a New Drug Application before the FDA, for what might be called "Prozac II." The claims of invention (without which no patent may be granted or sustained) include claims that Prozac II will do away with the side effects of Prozac I — agitation, sleeplessness, restlessness and suicidal ideation. In defense of a lawsuit by tragically injured plaintiffs, Lilly and Pfizer deny any relation of these drugs to suicide. When faced with the loss of a new patent and drug and its 2.5 billion dollar income from Prozac, however, Lilly tells the truth.
25. In 13 years of active marketing and public advertising of SSRI drugs in the United States, a probable 60 billion dollars worth of such drugs, no American drug manufacturer has ever admitted that the drugs cause the very symptoms which Prozac II claims to prevent.
Frankly, the court is unable to discern the relevance of paragraphs 24 and 25 with respect to Pfizer. At best, it appears that plaintiffs assert some convoluted evidentiary argument against Pfizer based on patent issues for one of Eli Lilly's new drugs. Pfizer will not be required to respond to allegations concerning another company's new drug, patent issues, or whether "Lilly tells the truth." Paragraphs 24 and 25 will be stricken as immaterial and impertinent.
Paragraph 26 states some foreign countries have drug regulations that require warnings of adverse reactions and that no such warnings are given in the United States. Continuing, plaintiffs allege:
Americans have been victimized by the most cynical and depraved marketing schemes in the history of pharmaceutical drugs. The cost has been thousands of private tragedies where families such as the Fosters quietly pay the price of drug company profits with their destroyed happiness and lives.
(Emphasis added). In addition to being argumentative, impertinent, and scandalous, paragraph 26 is redundant. Plaintiffs' complaint contains numerous allegations that Pfizer breached its duty to warn for marketing reasons (e.g. paragraphs 47, 49, 75-82, and 98). Paragraph 26 adds nothing to the complaint except an emotional "sound-bite" for the media. Thus, paragraph 26 shall be stricken.
In summary, Pfizer's motion to strike shall be granted in part and denied in part. To avoid further delay in this case, the court will not require that plaintiff file an amended complaint. Pfizer shall answer only those paragraphs of the complaint which have not been stricken.
In ruling on the motion to strike, the court expresses no opinion on 1) the merits of plaintiffs' allegations or 2) the nature or admissibility of evidence plaintiff might use to prove their case.
III. Plaintiffs' Motion for Sanctions
Because Pfizer's motion to strike has been granted in part, plaintiffs' motion for sanctions under Fed.R.Civ.P. 11 shall be denied. In addition, an alternative ground exists for denying plaintiffs' request for Rule 11 sanctions. Rule 11 requires a moving party to provide the opposing party with notice and 21 days to withdraw or correct the "challenged paper, claim, defense, contention, allegation, or denial." Rule 11(c)(1)(a). Plaintiffs' motion contains no indication whatsoever that the Rule 11 notice was provided and the request for sanctions should be denied on this basis irrespective of whether this report and recommendation concerning the motion to strike is adopted.
IT IS THEREFORE RECOMMENDED that Pfizer's motion to strike (Doc. 4) be GRANTED IN PART and DENIED IN PART, consistent with this opinion. Pfizer shall file its answer to the complaint within 10 days of Judge Marten's ruling on this Report and Recommendation.
The clerk of the court shall send a copy of the recommendation to the parties. Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b), the parties may serve and file written objections to the proposed findings and recommendations with the clerk of the district court within ten (10) days after being served with a copy of this recommendation and report. IT IS FURTHER ORDERED that responses to objections shall be filed five (5) days after service of the objection. No replies are permitted. Failure to make a timely objection waives appellate review of both factual and legal questions concerning the report and recommendation.
IT IS FURTHER ORDERED that plaintiffs' motion for Rule 11 sanctions (Doc. 8) is DENIED.