Case Notes

In Gentile v. Biogen Idec, Inc., 2014 Mass. Super. LEXIS 11 (Feb. 14, 2014), a patient who suffered from multiple sclerosis was prescribed an immunosuppressant drug manufactured by the defendants. While still on the medication, the patient died of progressive multifocal leukoencephalopathy (PML), a brain disease thought to be caused by immunosuppressant drugs such as the one she was taking. The administrator of the decedent's estate sued in Massachusetts Superior Court, alleging, among other things, that the drug was defectively designed, and that the defendants fraudulently concealed material facts about the drug's risks and negligently misrepresented the extent of those risks in the drug's labeling, consent forms and advertising. Before either defendant had been served, the out-of-state defendant removed the case to the United States District Court for the District of Massachusetts, but it remanded after concluding that 28 U.S.C. ' 1441(b) does not permit removal of a suit that properly joins a defendant citizen of the forum state until at least one defendant has been served.

The defendants then moved to dismiss the claims for negligent and fraudulent misrepresentation, arguing they had not been pled with particularity as required by Mass. R. Civ. P. 9(b). Specifically, the defendants argued that the plaintiff had not specified: 1) the exact statement(s) the defendants knew or should have known were false; 2) which defendants made the statement(s); and 3) the manner in which the decedent or her doctor relied on them. Rather, the plaintiff alleged only that the defendants, individually and collectively, concealed or misrepresented material facts so that some information or warnings about the drug's risks were never available to the decedent or her doctor, and that the decedent had relied on the defendants' express and implied warranties of safety as well as the drug's labeling, advertising and consent forms in deciding to undergo treatment.