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DeCostanzo v. GlaxoSmithKline PLC

Commercial Expressly Stated Viewer Should Get Whooping Cough Vaccine to Protect Infants

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MEMORANDUM & ORDER Plaintiff Lori DeCostanzo brings this putative class action on behalf of herself and similarly situated consumers against the British pharmaceutical company GlaxoSmithKline PLC and its wholly-owned US subsidiary GlaxoSmithKline LLC (together, “GSK”) claiming that their ad campaign for the whooping cough vaccine Boostrix misled consumers into believing the vaccine would help prevent transmission of the disease to infants when in fact it increases the risk of unwittingly transmitting the disease. Plaintiff brings claims under New York General Business Law (“GBL”) §§349, 350, state consumer protection statutes, the Magnuson-Moss Warranty Act, breach of express warranty, breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, unjust enrichment, fraud, and negligent misrepresentation. For the reasons set forth below, defendants’ motion to dismiss is DENIED except with respect to the unjust enrichment claim. Facts Pertussis, commonly known as the whooping cough, is an infectious respiratory illness. Docket Entry (“DE”) 1, 22. Although whooping cough is generally mild in adults, it can result in serious illness in newborns and infants. Id., 22. GSK is engaged in the manufacturing, marketing, and distribution of an acellular pertussis vaccine for the whooping cough called Boostrix. Id.,

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