783 F. Supp. 2d 424
S.D.N.Y.2011Background
- This is a New York diversity products liability action arising from Barry Fisher’s use of heparin manufactured by Defendants; Fisher developed HIT and died in 2008 after a November 2006 procedure.
- Plaintiffs sue APP, Baxter, and Hospira for multiple theories including strict liability, negligence, warranties, and fraud-related claims linked to heparin side effects.
- SAC alleges all defendants manufacture, market, and distribute heparin and that all such products were administered to Fisher, causing his injury.
- The case was removed to SDNY by Hospira; Baxter was added to the case by the SAC in 2010.
- Defendants moved to dismiss on grounds including failure to identify the specific manufacturer, statute of limitations, and pleading deficiencies; court addresses these challenges under NY law and Federal Rule 12(b)(6).
- Court applies NY choice-of-law rules and determines New York limitations periods and tolling rules govern timeliness of state-law claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Manufacturer identification sufficiency | SAC alleges all defendants manufactured heparin administered to Fisher. | SAC fails to specify which product caused Fisher’s injury. | SAC adequately identifies the manufacturers; claims plead plausible link to each defendant. |
| Timeliness of Counts 1-3, 6-7 (and 8 against APP) | Claims relate back to the 2008 original complaint or are tolled by discovery rule. | No relation back or tolling; time-barred under NY CPLR 214.1/214; wrongful death also time-barred for APP. | Counts 1,2,3,6,7 time-barred against APP and Baxter; Count 8 time-barred against APP; relate-back and discovery tolling rejected. |
| Breach of Express Warranty adequacy (Count 5) | Content of warranty and who made it to Fisher/physicians alleged. | Lacks specific words/promises; no express warranty pled. | Count 5 dismissed for insufficient pleading of express warranty. |
| Negligent Misrepresentation (Count 6) pleading | Reliance and misrepresentation alleged. | Pleading lacks specificity on misrepresentations and reliance. | Count 6 dismissed for failure to plead with sufficient particularity. |
| Fraud by Concealment (Count 7) pleading | Defendants concealed information about HIT risks. | Rule 9(b) not satisfied; vague, all-defendants references. | Count 7 dismissed for lack of particularity under Rule 9(b). |
Key Cases Cited
- Twombly, Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (pleading must plead plausible claim, not mere conclusory statements)
- Iqbal v. Ashcroft, 556 U.S. 662 (U.S. 2009) (holdings require plausible, non-conclusory facts supporting claim)
- Frasier v. Gen. Elec. Co., 930 F.2d 1004 (2d Cir. 1991) (pleading standards; liberal interpretation of complaints)
- Padula v. Lilarn Prop. Corp., 84 N.Y.2d 519 (N.Y. 1994) (place of tort governs choice of law in New York; tolling and limitations considerations)
- Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (U.S. 1941) (establishes place-of-tort choice-of-law rule)
- Diffley v. Allied-Signal, Inc., 921 F.2d 421 (2d Cir. 1990) (state limitations govern tolling and accrual in diversity cases)
- Grill v. Philip Morris USA, Inc., 653 F. Supp. 2d 481 (S.D.N.Y. 2009) (fraud/limitations; applicable limitations analysis)
- Richman v. W.L. Gore & Assocs., 881 F. Supp. 895 (S.D.N.Y. 1995) (requirements for express warranty pleading)