United States District Court, W.D. Missouri, Southern Division
ORDER AND OPINION DENYING DEFENDANT ASTRAZENECA
PHARMACEUTICALS LP'S AND ASTRAZENECA LP'S MOTION TO
D. SMITH, SENIOR JUDGE.
is Defendants AstraZeneca Pharmaceuticals LP's and
AstraZeneca LP's Motion to Dismiss. Doc. #32.
Plaintiff's Amended Complaint alleges he suffers from
Chronic Kidney Disease (“CKD”) as a result of
Defendants' unlawful conduct in designing, researching,
developing, testing, manufacturing, packaging, labeling,
marketing, promoting, distributing, and/or selling Protonix,
Nexium, Nexium 24hr, Prilosec, and Prilosec OTC. Doc. #29.
Collectively, these medications are proton pump inhibitors
(“PPI”) used to treat gastroesophageal reflux
disease and other similar gastric disorders. Id.
Plaintiff asserts claims for negligence, strict products
liability, breaches of express and implied warranty,
fraudulent misrepresentation and omission, and violation of
the Missouri Merchandising Practices Act. Id.
Defendants move to dismiss under Federal Rules of Civil
Procedure 12(b)(6), 8(a)(2), and 9(b), and argue
Plaintiff's claim is barred by the statute of
limitations. Doc. #32. For the reasons below, the Court
denies the motion to dismiss.
liberal pleading standard created by the Federal Rules of
Civil Procedure requires "a short and plain statement of
the claim showing that the pleader is entitled to
relief." Erickson v. Pardus, 551 U.S. 89, 93
(2007) (per curiam) (quoting Fed.R.Civ.P. 8(a)(2)).
"Specific facts are not necessary; the statement need
only 'give the defendant fair notice of what
the…claim is and the grounds upon which it
rests.'" Id. (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). In ruling on a
motion to dismiss, the Court "must accept as true all of
the complaint's factual allegations and view them in the
light most favorable to the Plaintiff[ ].”
Stodghill v. Wellston Sch. Dist., 512 F.3d 472, 476
(8th Cir. 2008).
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face. A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. The
plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility
that a defendant has acted unlawfully. Where a complaint
pleads facts that are merely consistent with a
defendant's liability, it stops short of the line between
possibility and plausibility of entitlement to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In keeping with these principles a court considering a motion
to dismiss can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled
to the assumption of truth. While legal conclusions can
provide the framework of a complaint, they must be supported
by factual allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
Id. at 679. A claim is facially plausible if it
allows the reasonable inference that the defendant is liable
for the conduct alleged. See Horras v. Am. Capital
Strategies, Ltd., 729 F.3d 798, 801 (8th Cir. 2013);
Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594
(8th Cir. 2009).
fraud claim, a heightened pleading standard applies,
requiring the plaintiff to “state with particularity
the circumstances constituting fraud or mistake. Malice,
intent, knowledge, and other conditions of a person's
mind may be alleged generally.” Fed.R.Civ.P. 9(b). This
is understood to require the plaintiff plead the “who,
what, when, where, and how” of the fraud. Freitas
v. Wells Fargo Home Mortg., Inc., 703 F.3d 436, 439 (8th
Cir. 2013). Rule 9 is satisfied with respect to a claim of
fraudulent omission if the omitted information is identified
and “how or when” the concealment occurred.
Cf. Great Plains Trust Co. v. Union Pac. R.R. Co.,
492 F.3d 986, 996 (8th Cir. 2007).
argue dismissal for failure to state a claim upon which
relief can be granted is appropriate because: (1) Plaintiff
fails to allege dates, quantities, exact medication consumed,
and causation, (2) Plaintiff fails to detail how
AstraZenca's warnings were inadequate, and (3) Plaintiff
fails to meet Rule 9(b)'s heightened pleading standard
for fraud. The Court rejects these arguments and declines to
dismiss Plaintiff's Amended Complaint.
alleges he ingested “Nexium, Nexium 24hr, Prilosec,
Prilosec OTC, and Protonix, from approximately January 2011
to 2015....” Doc. #29, ¶4. Plaintiff further
alleges he was diagnosed with CKD as a result of these
medications; Defendants failed to disclose the dangers of
these medications to Plaintiff's physician, Plaintiff,
and the general public; and Defendants misrepresented the
safety of these medications to Plaintiff's physician,
Plaintiff, and the general public. Plaintiff identifies the
specific National Drug Code numbers for medications marketed
and sold by Defendants.
stage, Plaintiff need not identify the specific instances in
which he consumed a medication manufactured and sold by a
Defendant. Nor is Plaintiff required to differentiate between
the cause and effect of one medication manufactured by
AstraZenca as compared to another medication manufactured by
a different Defendant. Furthermore, Plaintiff need not prove
causation. Plaintiff's Amended Complaint adequately sets
forth factual information ...