YOLANDA V. PROHIAS, ETC.,
v.
ASTRAZENECA PHARMACEUTICALS, L.P., AND ZENECA, INC., APPELLEES
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A user of the prescription drug Nexium appealed the dismissal of her class action complaint alleging deceptive and unfair trade practices and unjust enrichment against the drug's manufacturers. The court affirmed dismissal, holding that the defendants' promotional activities fell within a statutory safe harbor because they were supported by FDA-approved labeling, and that any state law claims would be preempted by federal law.
The court affirmed dismissal with prejudice on three independent grounds: (1) the challenged promotional and advertising activities fell within the FDUTPA safe harbor because they were specifically permitted by federal law and supported by FDA-approved labeling; (2) the state law claims conflicted with and were preempted by federal law and FDA-approved Nexium labeling; and (3) the plaintiff failed to adequately allege the required elements of her claims, including that she purchased Nexium due to any wrongful conduct.
[1] Promotional and advertising activity for a drug is shielded from claims under the Florida Deceptive and Unfair Trade Practices Act when it is supported by the FDA-approve…
[2] A claim for unjust enrichment fails when the underlying conduct is shielded by the safe harbor provision of the Florida Deceptive and Unfair Trade Practices Act.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the promotional and advertising activity attacked in the Complaint is supported by the FDA-approved labeling for Nexium® and thus is "specifically permitted" by federal law”
Establishes the safe harbor under FDUTPA for conduct permitted by federal law and FDA approval
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Join FLexlaw to unlock all legal intelligenceYolanda Prohias used the drug Nexium and filed a class action complaint against AstraZeneca Pharmaceuticals and Zeneca, Inc. alleging deceptive and un…
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SCHWARTZ, Senior Judge.
This is an appeal by the plaintiff, a user of the drug Nexium, from a final judgment dismissing her attempted class action complaint against its manufacturers under the Florida Deceptive and Unfair Trade Practices Act and for “unjust enrichment.” The order under review provides: 1. Defendants’ motion [to dismiss Plaintiffs second amended class action complaint] is GRANTED and Plaintiffs Complaint and this action are DISMISSED WITH PREJUDICE, for two primary and independent reasons:
2. First, the conduct that Plaintiff challenges falls within the safe harbor of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. § 501.212(1), because the promotional and advertising activity attacked in the Complaint is supported by the FDA-approved labeling for Nexium® and thus is “specifically permitted” by federal law. For the same reasons that Plaintiff has not pleaded a valid FDUT-PA claim, she has failed to plead that Defendants have received an unjust benefit. Her claim for unjust enrichment thus necessarily fails as well.
3. Second, and independently, even if the FDUTPA safe harbor did not apply, Plaintiffs state law claims would conflict with federal law and the FDA-approved Nexium labeling and therefore are preempted.
4. Finally, as a third independent reason for dismissal, Plaintiff fails to allege the required elements of her FDUTPA and unjust enrichment claims, including failing to allege that Defendants’ alleged wrongs caused her to purchase Nexium. While Plaintiff offered at oral argument to amend her Complaint a third time, these allegations, even if added, still would fail to state a claim for the first two reasons stated above. Given these circumstances, the Court concludes that dismissal with prejudice is appropriate.
5. Accordingly, Defendants’ Motion is GRANTED and Plaintiffs Complaint and this action are hereby DISMISSED WITH PREJUDICE.
We entirely agree with this ruling. See Bober v. Glaxo Wellcome PLC, 246 F. 3d 934 (7th Cir.2001); Prohias v. Pfizer; Inc., 485 F. Supp. 2d 1329, 1335-40 (S.D.Fla.2007); Pa. Employee Benefit Trust Fund v. Zeneca, Inc., No. Civ. 05-075-SLR, 2005 WL 2993937 (D.Del. Nov. 8, 2005), appeal docketed, No. 05-5340 (3d Cir. Dec. 15, 2005); N.J. Citizen Action v. Schering-Plough Corp., 367 N.J.Super. 8, 842 A. 2d 174 (2003), certification denied, 178 N.J. 249, 837 A. 2d 1092 (2003).
Affirmed.
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- Prohias v. Pfizer, Inc., 485 F. Supp. 2d 1329 (S.D. Fla. 2007)