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In re Prempro Products Liability Litigation

October 30, 2006

IN RE: PREMPRO PRODUCTS LIABILITY LITIGATION
JEAN ANN BELL PLAINTIFF
v.
WYETH, INC., ET. AL. DEFENDANTS



The opinion of the court was delivered by: Wm. R.Wilson,Jr. United States District Judge

MDL Docket No. 4:03CV1507-WRW

ORDER

Pending is Plaintiff's Second Motion for Leave to File Amended Complaint (Doc. No. 26) and Defendants' Renewed Motion for Summary Judgment Re: Statute of Liminations (Doc. No. 30).

I. BACKGROUND

Plaintiff was diagnosed with breast cancer in April 2000, but asserts that the release of the WHI results in July 2002 was the first time she was able to appreciate the relationship between her use of HRT drugs and her breast cancer. Along with 263 other women, Plaintiff filed a complaint on July 2, 2004. In that complaint and her subsequent fact sheet, Plaintiff alleged that she took Estraderm, Premarin, Prempro, Provera, and Vivelle and named Wyeth Pharmaceuticals, Inc, Wyeth, Inc, Pfizer, Inc, Novartis Group LLC, and Novartis Pharmaceuticals as Defendants.

Defendants assert that Plaintiff's claims should be dismiss based on the statue of limitations. Plaintiff asserts that the statute of limitations were tolled because she asserted claims of fraud and fraudulent concealment.

II. DISCUSSION

A. Fraud and Suppression Claims

Alabama requires that fraud be plead with particularity.*fn1 "In the context of Ala.Code § 6-2-3, Rule 9(b) requires that a plaintiff aver the circumstances and events constituting the fraudulent concealment."*fn2 Allegations of fraud must go beyond generalized or conclusory statements.*fn3 "The purpose of the particularity requirement is to give fair notice to a defendant of the substance of the charges."*fn4

In Henderson v. Washington Nat. Ins. Co., the plaintiff alleged that "Defendants fraudulently suppressed and concealed the actual basis for their premium increases, which was, among other things, to impose such a financial burden and strain upon Plaintiff as to force her to cancel said policies. Moreover, she claims that the defendants "serviced the 'group' policy purchased by Plaintiff so as to actively conceal or suppress the true nature of the policy and how premium increases were calculated."*fn5 The 11th Circuit court of appeals concluded that although this language was "not highly detailed" it did go beyond generalized and conclusory allegation and was sufficient to put the defendant on notice.

Here, Plaintiff alleges, among other things, that Defendants suppressed material fact and misrepresented the risk and benefits of HRT drugs in the labeling and through advertising, and that Plaintiff relied on the label and advertising to her detriment.*fn6 Plaintiff contends that because of Defendants continuous campaign to downplay the risks through false and misleading information, she was not able to discover the possible causal relationship between her breast cancer and HRT until the release of the WHI study results on July 9, 2002.*fn7

While Plaintiff's complaint is not a model of excellence with regard to pleading fraud and suppression, my "task is not to gauge the sufficiency of the pleadings."*fn8 Additionally, there seem to be material facts in dispute and Defendants have not "proven by clear and convincing evidence that no Alabama court could find this complaint sufficient to invoke Ala.Code § 6-2-3."*fn9

Accordingly, the proposed amended complaint seems to meet the threshold recognized by the ...


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