Opinion
7253 Index 162934/15
10-09-2018
Lauren WHOLEY, et al., Plaintiffs–Respondents, v. AMGEN, INC., et al., Defendants–Appellants.
Hogan Lovells U.S. LLP, New York (Daryl L. Kleiman of counsel), and Arnold & Porter Kaye Scholer LLP, New York (Alan E. Rothman of counsel), for appellants. Excolo Law, PLLC, New York (Ari Kresch of counsel), for respondents.
Hogan Lovells U.S. LLP, New York (Daryl L. Kleiman of counsel), and Arnold & Porter Kaye Scholer LLP, New York (Alan E. Rothman of counsel), for appellants.
Excolo Law, PLLC, New York (Ari Kresch of counsel), for respondents.
Renwick, J.P., Manzanet–Daniels, Webber, Singh, JJ.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered May 9, 2017, which, to the extent appealed from, denied defendants' motion to dismiss the complaint except for the claim of defective manufacturing, unanimously modified, on the law, to grant the motion as to claims of injuries that occurred during the clinical trial and as to the cause of action for violation of General Business Law §§ 349 and 350 and the causes of action for "fraud," "fraudulent misrepresentation," and "fraudulent concealment," and otherwise affirmed, without costs.
As the sponsors of a clinical trial, defendants owed no duty to plaintiff Lauren Wholey, an enrollee in the trial (see Sykes v. United States, 507 Fed. Appx. 455, 462 [6th Cir.2012] ; Abney v. Amgen, Inc., 443 F.3d 540, 550 [6th Cir.2006] ). Thus, her claims concerning the drug Enbrel must be limited to those that allegedly arose after she stopped participating in the trial and was prescribed the drug as a patient.
The claim of violation of General Business Law §§ 349 and 350 must be dismissed, because the generally alleged deceptive practice of failing to provide adequate warnings by concealing information is, as a matter of law, not a practice directed at consumers (see Amos v. Biogen Idec Inc., 28 F.Supp.3d 164, 173–174 [W.D.N.Y. 2014] ).
The complaint fails to plead the various claims of fraud with the requisite particularity (see CPLR 3016[b] ; Devore v. Pfizer Inc., 58 A.D.3d 138, 143–144, 867 N.Y.S.2d 425 [1st Dept. 2008], lv denied 12 N.Y.3d 703, 876 N.Y.S.2d 704, 904 N.E.2d 841 [2009] ).
The learned intermediary doctrine does not compel dismissal of the claims that the drug's warning labels were insufficient, since the claims are premised not on defendants' failure to warn plaintiff directly but on their failure to provide proper warnings to her prescribing medical professionals (see Martin v. Hacker, 83 N.Y.2d 1, 9, 607 N.Y.S.2d 598, 628 N.E.2d 1308 [1993] ). Nor did defendants show that the warnings are sufficient as a matter of law (see id. ).
The claim that defendants breached the implied warranties of fitness and merchantability by holding Enbrel out as reasonably fit and suitable when it was actually unreasonably dangerous is sufficiently pleaded (see generally Friedman v. Medtronic, Inc., 42 A.D.2d 185, 345 N.Y.S.2d 637 [2d Dept. 1973] ).
Defendants are correct that there is no independent cause of action for punitive damages (see Rivera v. City of New York, 40 A.D.3d 334, 344, 836 N.Y.S.2d 108 [1st Dept. 2007], lv dismissed 16 N.Y.3d 782, 919 N.Y.S.2d 506, 944 N.E.2d 1145 [2011] ). However, their argument that plaintiffs cannot seek punitive damages in connection with their other claims is incorrect (see e.g. Pludeman v. Northern Leasing Sys., Inc., 40 A.D.3d 366, 369, 837 N.Y.S.2d 10 [1st Dept. 2007], affd 10 N.Y.3d 486, 860 N.Y.S.2d 422, 890 N.E.2d 184 [2008] ).
We have considered defendants' remaining contentions and find them unavailing.