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Moczulski v. Ferring Pharmaceuticals, Inc.

United States District Court, D. Maryland

July 19, 2018

CANDY MOCZULSKI, et al., Plaintiff,


          James K. Bredar Chief Judge.

         Candy Moczulski (“Plaintiff”) filed suit against Ferring Pharmaceuticals, Inc. (“Defendant”), alleging various state common law and statutory claims. Plaintiff's claims stem from her purchase and use of a fertility drug-Bravelle-that is manufactured and sold by Defendant. Plaintiff originally filed her Complaint in the Circuit Court for Baltimore City, and Defendant's removed the case to this Court. Now pending before the Court is Defendant's unopposed Motion to Dismiss. (ECF No. 18.) Defendant contends that Plaintiff lacks standing and has failed to state a plausible claim for relief. No. hearing is required. See Local Rule 105.6 (D. Md. 2016). For the reasons set forth below, Defendants' Motion will be GRANTED IN PART and DENIED IN PART.

         I. Background [1]

         Defendant develops, manufactures, markets, and sells a prescription drug called Bravelle. (Compl., ECF No. 2 ¶ 1.) Bravelle-a urofollitropin-is intended to increase fertility in women. (Id. ¶ 2.) Specifically, Bravelle contains follicle stimulating hormone, which stimulates egg maturation and multiple follicular development. (Id.) Bravelle is frequently prescribed as part of an in vitro fertilization procedure. (Id.)

         Plaintiff wanted to have a baby and was informed by her doctor that Bravelle would increase the chances of her successfully conceiving. On September 25, 2014, Plaintiff began “a lengthy and expensive medical procedure, ”[2] which included the use of Bravelle. Despite using Bravelle as prescribed, Plaintiff did not become pregnant. (Id. ¶ 5.) Plaintiff alleges that Defendant “knew or should have known” that the Bravelle sold to Plaintiff “did not and would not work as advertised and intended” and “would not . . . accomplish the medical and pharmaceutical effect intended.” (Id. ¶ 9.)

         In October 2015, Defendant initiated a voluntary recall of all Bravelle in the United States after discovering “that certain lots of the drug did not meet potency requirements.” (Id. ¶ 6.) Plaintiff alleges that the Bravelle she purchased and used “was not capable of stimulating egg maturation and multiple follicular development, ” and therefore it was part of the defective batch. (Id. ¶¶ 15, 18.) Defendant offered to reimburse customers, including Plaintiff, who had purchased Bravelle; however, Plaintiff rejected the offer.

         II. Legal Standards

         A. Standard for Dismissal under Rule 12(b)(1)

         A challenge to a plaintiff's standing “implicates th[e] court's subject matter jurisdiction.” Long Term Care Partners, LLC v. United States, 516 F.3d 225, 230 (4th Cir. 2008); accord White Tail Park, Inc. v. Stroube, 413 F.3d 451, 459 (4th Cir. 2005). The Plaintiff bears the burden of establishing subject-matter jurisdiction. Frank Krasner Enterprises, Ltd. v. Montgomery Cty., 401 F.3d 230, 234 (4th Cir. 2005) (“The burden of establishing standing to sue lies squarely on the party claiming subject-matter jurisdiction.”); accord Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).

         B. Standard for Dismissal under Rule 12(b)(6)

         A complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. An inference of a “mere possibility of misconduct” is not sufficient to support a plausible claim. Id. at 679. However, “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable.” Twombly, 550 U.S. at 556. Even so, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. at 555. “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (alteration in original) (citation omitted) (quoting Twombly, 550 U.S. at 555, 557).

         III. Analysis

         Plaintiff alleges eight counts under Maryland state law against Defendant stemming from her purportedly defective dose of Bravelle. Specifically, she asserts the following causes of action: (1) negligence; (2) breach of express warranty; (3) breach of implied warranty; (4) unjust enrichment; (5) negligent misrepresentation; (6) intentional misrepresentations; (7) breach of contract; (8) and a violation of the Maryland Consumer Protection Act (“MCPA”), Md. Code Ann., Com. Law § 13-101, et seq. Essentially, Plaintiff contends that Defendant sold her a defective product that it knew or should have known was incapable of working as advertised and intended. Defendant primarily argues that Plaintiff has not plausibly alleged an injury-in-fact, and therefore she lacks standing to bring any of her claims. And, even assuming Plaintiff does have standing, Defendant contends that her Complaint fails to state a claim for relief, again because she has not adequately alleged she suffered any injury. Defendant also makes several additional arguments addressed to specific claims asserted by Plaintiff.

         A. Standing

         At the outset, the Court must assure itself that Plaintiff has standing. If she does not, then the Court lacks subject matter jurisdiction and must dismiss the case in its entirety.

         A plaintiff's standing to sue in federal court is “an integral component of the case or controversy requirement” of Article III. Miller v. Brown, 462 F.3d 312, 316 (4th Cir. 2006). To demonstrate standing, a plaintiff must show that: (1) she has suffered an injury in fact; (2) the injury is fairly traceable to the defendant's actions; and (3) the injury is likely to be redressed by a favorable decision of the court. Lujan, 504 U.S. at 560-61. The injury alleged must be “concrete and particularized.” Id. at 560. At the pleading stage, however, “general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim.” Hutton v. Nat'l Bd. of Examiners in Optometry, Inc., 892 F.3d 613, 620 (4th Cir. 2018) (quoting Lujan, 504 U.S. at 561).

         Defendant contends that Plaintiff has failed to allege sufficient facts in support of her claimed injury. According to Defendant, Plaintiff alleges only that Bravelle “did not work and would not work as advertised and intended.” (Ferring Pharmaceuticals Inc.'s Mem. in Supp. of its Mot. to Dismiss, ECF No. 18-1, at 7.) Defendant also notes that Plaintiff does not specifically allege that “she did not ovulate or that she did not develop multiple follicles after using Bravelle, ” (id. at 7) nor does she offer any proof that her Bravelle was “tested and determined to be subpotent, ” (id. at 9).

         Defendant misconstrues Plaintiff's burden at this stage in the litigation. The parties agree that Bravelle is intended to stimulate egg maturation and multiple follicular development. Plaintiff alleges that she purchased Bravelle and used it as prescribed. (ECF No. 2 ¶ 5.) She further alleges that the drug she purchased “did not and would not work.” (Id. ¶ 9.) And she specifically alleges that “the . . . [B]ravelle that was sold to [her] was not capable of stimulating egg maturation and multiple follicular development.” (Id. ¶¶ 15, 18 (emphasis added).) Later, Plaintiff again states that the Bravelle that was sold to her “was not viable or effective.” (Id. ¶ 36.) Indeed, by the Court's count, Plaintiff alleges no less than seven times in her Complaint that the Bravelle she purchased was incapable of working as intended and in fact did not work. In other words, Plaintiff alleges, repeatedly, that her Bravelle was incapable of stimulating egg maturation and multiple follicular development, the exact thing that the parties agree it was intended to do.[3] Plaintiff also alleges that she suffered both monetary and non-monetary injuries as a result of purchasing ineffective Bravelle from Defendant. These claims are plausible; nothing more is required of Plaintiff at this stage in the proceeding to establish her standing. Accordingly, the Court finds that Plaintiff has standing to pursue her claims against Defendant.[4]

         B. Negligence Claims

         In Counts I and V, Plaintiff alleges negligence and negligent misrepresentation respectively.

         Under Maryland law, to state a claim for negligence, the plaintiff must allege facts showing “(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant's breach of the duty.” Horridge v. St. Mary's Cty. ...

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