Brumfield v. Merck & Co. Inc.

Fraudulent, Negligent Misrepresentaiton Claims Dismissed; Rule 9(b) Standard Not Satisfied

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MEMORANDUM AND ORDER Forty-eight plaintiffs brought actions against Merck & Co., Inc., Merck Sharp & Dohme Corp. (together, “Merck”), and McKesson Corp. (“McKesson,” and together with Merck, “defendants”) in the Supreme Court of the State of New York, Kings County, seeking damages for injuries allegedly sustained after receiving ZOSTAVAX® (“Zostavax”), a vaccine manufactured and distributed by defendants.¹ Plaintiffs’ complaints assert claims against defendants under New York state law for strict products liability, negligence, breach of express and implied warranty, fraudulent misrepresentation, negligent misrepresentation, unjust enrichment, deceptive acts and practices, and false advertising.²Merck timely removed the actions to this Court pursuant to 28 U.S.C. §1441, asserting diversity jurisdiction under 28 U.S.C. §1332.³Presently before the Court are Merck’s and McKesson’s motions to dismiss plaintiffs’ claims for fraudulent misrepresentation and negligent misrepresentation pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6). For the reasons set forth below, the Court grants defendants’ motions and dismisses plaintiffs’ fraudulent and negligent misrepresentation claims with leave to replead.I. BACKGROUNDA. FactsThe following is a brief overview of the allegations, taken from the complaints.⁴ The Court assumes these facts to be true for purposes of deciding these motions and construes them in the light most favorable to plaintiffs, the non-moving parties.Zostavax is an FDA-approved vaccine that was developed to protect against herpes zoster (also known as shingles). (Compl.

2, 67, 72-73.) At all relevant times, Merck researched, developed, tested, and licensed Zostavax, and both Merck and McKesson manufactured, labeled, marketed, packaged, sold, and distributed the vaccine. (Id.

Brumfield v. Merck & Co. Inc.

Fraudulent, Negligent Misrepresentaiton Claims Dismissed; Rule 9(b) Standard Not Satisfied

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