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Koon v. Astrazeneca Pharmaceuticals LP

United States District Court, D. Kansas

February 15, 2017

Jackie Koon, Plaintiff,
AstraZeneca Pharmaceuticals LP and AstraZeneca LP, Defendants.


          John W. Lungstrum United States District Judge

         Plaintiff filed this lawsuit against defendants alleging that he suffers from end-stage renal disease as a result of defendants' unlawful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, distributing, labeling and sale of Prilosec, a proton pump inhibitor (PPI) used to treat gastroesophageal reflux disease and other peptic disorders. Specifically, plaintiff has asserted claims for products liability, negligence, fraud and breach of express and implied warranties. This matter is presently before the court on defendants' motion to dismiss plaintiff's complaint under Federal Rules of Civil Procedure 12(b)(6) and 9(b) (doc. 24). As will be explained, the motion is denied.[1]

         Pleading Requirements

         The court will grant a motion to dismiss for failure to state a claim when a plaintiff's factual allegations fail to “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The complaint need not contain detailed factual allegations, but a plaintiff's obligation to provide the grounds of entitlement to relief requires more than labels and conclusions; a formulaic recitation of the elements of a cause of action will not do. See id. at 555. The court must accept the facts alleged in the complaint as true, even if doubtful in fact, see id., and view all reasonable inferences from those facts in favor of the plaintiff, see Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006). Viewed as such, the “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. To overcome a motion to dismiss, then, a plaintiff's allegations must move from conceivable to plausible. United States ex rel. Lemmon v. Envirocare of Utah, Inc., 614 F.3d 1163, 1167 (10th Cir. 2014).

         For a fraud claim, the pleading standard is higher: “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). A plaintiff, then, must “set forth the time, place and contents of the false representation, the identity of the party making the false statements and the consequences thereof.” George v. Urban Settlement Servs., 833 F.3d 1242, 1254 (10th Cir. 2016).

         Statute of Limitations

         Defendants first move to dismiss all of plaintiff's claims on the grounds that the claims are barred by the two-year statute of limitations set forth in K.S.A. § 60-513(a). According to defendants, plaintiff alleges in his complaint that he consumed Prilosec “through 2013, ” which suggests that he developed kidney disease no later than December 31, 2013 and renders the August 31, 2016 filing of his complaint untimely. In response, plaintiff invokes the “discovery rule” under which his cause of action accrues not at the time of injury but when the act giving rise to the injury becomes reasonably ascertainable. Plaintiff acknowledges that he has failed to plead the date upon which he discovered the connection between his injury and defendants' conduct, but he asserts that the complaint, as a whole, supports the conclusion that he did not discover the connection until “well after” he was diagnosed with his injury.

         At the core of the parties' argument is a threshold dispute about the extent to which a plaintiff must plead facts to show that his claims are timely. Defendants, citing Ames v. Uranus, Inc., 1993 WL 106896 (D. Kan. Mar. 17, 1993), urge that plaintiff must plead facts showing that his claim is timely, including allegations as to the specific date he discovered the cause of his injury and the date on which that discovery was reasonably ascertainable. Plaintiff, on the other hand, contends that dismissal is appropriate only when it appears on the face of the complaint that the claims are time-barred. The court rejects the defendants' position as “contrary to more recent Supreme Court cases which generally hold against special pleading rules for particular types of cases and that do not require that plaintiffs plead facts to negate affirmative defenses, such as the statute of limitations.” See National Credit Union Admin. Bd. v. Credit Suisse Securities (USA) LLC, 939 F.Supp.2d 1113, 1120 (D. Kan. 2013) (citing cases). As this court stated in Credit Suisse, it believes the more appropriate approach is one which permits the defendant “to raise the defense of statute of limitations on a motion to dismiss when the complaint reveals on its face that the suit is time-barred, and on a summary judgment motion when it does not.” Id. Plaintiff alleges in his complaint that he consumed Prilosec through 2013; that “recent studies” have associated long-term use of PPIs with a higher risk of chronic kidney disease; and that defendants concealed their knowledge that Prilosec causes a significantly increased risk of chronic kidney disease. Thus, because it is not clear from the dates given in the complaint that the right sued upon has been extinguished, the court denies defendants' motion on this issue.


         Defendants next assert that dismissal is appropriate because the complaint contains insufficient factual allegations regarding causation. According to defendants, plaintiff alleges only that he developed kidney disease after consumption of Prilosec and that PPIs are generally known (through observational studies) to correlate to kidney injuries. Defendants contend that these allegations are insufficient to establish that defendants' product caused plaintiff's injury. Plaintiff, in response, contends that defendants' argument relies almost entirely on cases at the Rule 56 stage and that defendants' argument improperly conflates plaintiff's burden at the summary judgment stage with plaintiff's obligation at the pleading stage. The court agrees. The complaint adequately alleges that plaintiff's injuries resulted from plaintiff's long-term consumption of Prilosec; that defendants failed to disclose to plaintiff, plaintiff's physician, and the public known defects in Prilosec; and that defendants misrepresented to plaintiff, plaintiff's physician and the public that Prilosec was safe for its intended use.

         Moreover, even defendants seem to concede that plaintiff has the better of this argument. In their reply, defendants have significantly narrowed their causation argument, contending only that the allegations in the complaint are deficient because plaintiff has failed to identify whether he took Prilosec by prescription or in its over-the-counter formulation, or whether he used the brand or generic formulation. This argument is rejected. Plaintiff alleges in his complaint that he consumed Prilosec and that Prilosec was marketed and sold by defendants. He further identifies Prilosec by the National Drug Code (NDC) numbers assigned to it. These allegations plausibly suggest that plaintiff consumed the specific drug manufactured and sold by defendants-the prescription brand Prilosec, as opposed to some variation not manufactured and sold by defendants (over-the-counter Prilosec or a generic version of Prilosec). Defendant's motion to dismiss based on plaintiff's failure to plead causation is denied.[2]


         Lastly, defendants assert in broad terms that plaintiff has failed to meet the heightened pleading standard for fraud claims. This argument, too, is rejected. Plaintiff has alleged that defendants, through reports, press releases, advertising campaigns, television commercials, print ads, direct-to-consumer advertising and the product's label, represented that Prilosec was safe and effective for its intended use. Plaintiff alleges that these representations were false and were made with knowledge that Prilosec can cause kidney injuries-knowledge that defendants concealed from plaintiff, the medical community and the public at large. Plaintiff alleges that he and his treating physicians reasonably relied on defendants' representations in using Prilosec and that, had plaintiff and/or his physicians known the true facts, plaintiff would not have used Prilosec. Finally, plaintiff alleges that these misrepresentations and omissions occurred prior to and throughout his use of Prilosec, from 2010 through the end of 2013. Plaintiff, then, has set forth the “time, place and contents of the false representation, the identity of the party making the false statements and the consequences thereof.” George v. Urban Settlement Servs., 833 F.3d 1242, 1254 (10th Cir. 2016). No more is required at this stage.[3]

         IT IS THEREFORE ORDERED BY THE COURT THAT defendants' motion to dismiss ...

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