Matias v Merck Sharp & Dohme Corp. 2010 NY Slip Op 33212(U) November 10, 2010 Sup Ct, NY County Docket Number: 118318/2009 Judge: Shirley Werner Kornreich Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.
12
Embed
Matias v Merck Sharp & Dohme Corp.courts.state.ny.us/Reporter/pdfs/2010/2010_33212.pdf · 2010-11-18 · Matias v Merck Sharp & Dohme Corp. 2010 NY Slip Op 33212(U) November 10, 2010
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
Matias v Merck Sharp & Dohme Corp.2010 NY Slip Op 33212(U)
November 10, 2010Sup Ct, NY County
Docket Number: 118318/2009Judge: Shirley Werner Kornreich
Republished from New York State Unified CourtSystem's E-Courts Service.
Search E-Courts (http://www.nycourts.gov/ecourts) forany additional information on this case.
This opinion is uncorrected and not selected for officialpublication.
SCANNEDON 1111512010
.. c
v1 z 0
cr
3 K W
SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY
PRESENT: Sk!!R!.-FY ~ ’ ~ ~ ’ ~ ~ ~ KORMREICH PART L% Jll Ft i r rP
- -
INDEX NO.
MOTION DATE
MOTION SEQ. NO.
MOTION CAL. NO. -
this motlon to/for
PAPERS NUMBERED * -
‘ - -
Index Number 11 831 812009
MATIAS, MARY
MERCK SHARP i% DOHME
SEQUENCE NUMBER 001
vs
DISMISS
~ ~ - - - - - ~
IYotice ot Motion/ Order to Show Cause - Affidavits - Exhibits ... Answering Affidavits - Exhibits
Replying Affidavits
Cross-Motion: I 1 Yes fl No
Upon the foregoing papers, It is ordered that this motion “/3
F I L E D NOV 1 5 2010
NEW YORK COUNTY CLERKS OFFICE
_ -
Check one: ‘ FINAL DISPOSITION s’ NON-FINAL DISPOSITION
Check if appropriate: n DO NOT POST 1 - 1 REFERENCE
[* 1]
Plaintiffs, -against-
MERC‘K SI - IAKP & DOHME coiCr? F/K/A MEKCK & (.‘(I., INC‘., HI.JC;HE’:S I I I IHHARD & Kl-XD LLP, M. ELAINE I1(31<N, VILJA 13. 1 IAYES, and J O H N AND JANF DOES Whose Identity Cannot Be Ascertained at the Present ‘l’iiiic,
Defendants.
Index No.: 1 183 1 8/2000
F I L E D NOV 15 2010
NEW YORK COUNTY CLERKS OFFICE
Pcnding befi)re the court are three motions by del’endants seeking to dismiss the
coniplaint. The complaint alleges I‘raud in thc preparation and filing of stipulations 011 hchalf‘ol‘
plaintiffs Mary M a l i x , I<lizabcth IMes. Andrca Golub, J3arb31-a .1:iros. h i i d I Icrbert as
Aclininistratrix L)[. 1lic EstatC of Hilda Pelt7. and Ileborah Martin as Administratrix of the Estatc of
Barbara E. Liipole (col lcctivcly plaintiffs), which stipulations dismissed these New York
plaintiffs’ ull-iims iii collatcral tiixss tort litigations. The dismissal motions h a w hccn liled by,
rcspcctivcly, del‘endants Hughes Hubbard & Keed LLP (HHR) and I-11-1R attorney Vilia B. Hayes
(cnllectivcly l-llHl< defendants) (scq. # l ) , dekndant Merck & Co., Tnc., now kiiown as M u c k
Sharp Kr. I.)oImc C’o1-1). (Mcrck) ( s q I /?) , and defendants Williams & C.‘oiinolly L L I ’ (W&C.’) and
WSrC‘ attorticy M. Elaine Horn (collcctively WXrC dcfcndants) (seq. 113). ‘I’he court coiisiders the
nio t i ons -1 o in t I y fo r ci i s po s i t i o 11.
All ol‘the defendaiits argue that plaintiffs should have moved lo vacatc the settleniciits
and that the coniplaiiit constitutes an impcrmissible collateral atlack on the settlelimit. Merck
[* 2]
and W&C furlher cuntend that plaintiffs have hiled to sufficiently plead their fraud claiiiis. The
I-IHR defendants argue that documentary evidence is dispositive of the issues and requires
dismissal. CPI,R 321 l(a)(l).
BLIL' kgro i ind
Tho I lmiorlj~ing M l i s s Tor./ Iditicqwlion
Plaintiffs hcrc wcre plaiiitiffs in the New York Bextra and Celebrex Product Liability
L,itigalion, a Coordiiiatcd Proceeding to which this cowl was assigned by the New York
C'oordination ILitigalion Panel (Bextra/Celebrct litigation). l h c Hcxtr:i/Cclcbrex litigation arose
out of injuries allcgcdly sustained as a result o l ingesting Bextra and/or Celebrex, drugs
inaiiufiictLired by I'fizer, Iiic. arid other named phamiaceutical companies (collectively P t k r ) .
'l'he procceding in New Yo&, which encompassed all New York State products liability c;ises
iiivolving Rextra and C'elebrcx, was coordinated with the lederal proceeding coordinating a11
such casts filccl i r i tlic l-kdt.r-ill coiirts (the MIIL,). Plair1tilX.s also :\I Ieged t11:tt tliey sustniiiccl thcir
injuries as a result of iiigesting Vioxx, a drug nianufacturcd and markctcd by Merck.'
A Vioxx seltlement agrccnient was achieved in November 2007. ,Sw In re Vioxx Prods.
LiLih. Litiz.. 30 10 1.1s Ilist. 1 ,I<XIS 24275 *6.' 'I'hc court takes judicial notice of the settlement
' The federal inulti-district litigation for RcxtrdCelebrex was coordinated by Judgc Charles R. Breyer in the N u r k r n District of California, In re Bextrrr LrnJ C:'elcJhiw hilwkctin,q S ~ I I P S /'rlii.ticc r i m / / ' / w r , / i i c ~ I.iirhility Lifiprlion. The redera1 Vioxx C ~ S C S wcre coordinated, separately, by Judge Elclon E. Fallon in thc I-;astern District ol' Louisiana, . /n I T Ib'ioxx Piwds . Liiih. Lilig. Vioxs cases also were litigated ill statc courts in New Jersey, Texas and Florida.
' lntercstingly, this decision involved an action wherein Mr. Reiijaiiiiii, couiisel for plaintill's here, solight to viicaie a settlemcnt, alleging attorney wrung-doing --that the plaintiff's prcvious attornuy had a cnntliot of interest and coel-ccd him into entering the settlement. 'I'he fcdcral court found no coiiflict and no Kra~id.
2
[* 3]
agreemeiit which was a voluntary opt-in agreement for the more than 58,000 MDL and state
Viosx cascs.’ The redera1 and statc courts required the cases to bc rcgixtcrcd by January 15,
2008 or they were sul3.jecl to dismissal. Furthcr, all claimants had to enroll lor settlemenl by May
I , 2008 and subiiiit a claims package by July 1, 2008.4 Money was set aside [or the seltlement,
and claims wcrc cvaluaicd 1 ; ~ settlement dollars based upon points, which were determined by
the plaintiff’s age, injiiry, duralion o f iisage of Vioxx, consistency ol‘iise, when the claimant iiscct
V iosx, the claimant’s gcneral health and his medical history. ‘Those who opted into the Vioxx
settlemcnt a id also iilleged that thcir- injury arwe l?om C‘clchrcx aiid/or Ikxtra, had to reliiiqirisli
their claiiiis in the HextrdClelebrex liligation. ‘I’lic I-1HR defendants jointly with the W&C
dcfciidaiits represented Mcrck in the Vioxx litig, t’ Ion.
This court issucd C’nse Management Orders (CMOS) in the T3extrdC‘elebres I i tigalion.
For thc moct part, the CMOs were coordinated with the MDL, reflecting agreements by tlic Ncxw
York Coordinated Procccdiiig Plaintiffs’ Steering Committec made with Pfizer. Ainong the
CMOs iswccl w c i ~ tlit. li)llowiiig orders: ( 1 ) Action\ wrre lo be liled st.paratelq :is to individual
plaiiitith; ( 3 ) I-hcli plaiiitiil. was requircd to cubinit fact sheets with specifics as to the drugs
ingested; ( 3 ) Violations o1‘tlie CMOs or of discovery obligations could resull in dismissal; and
(4) Attorneys who wurc meinbers ol‘the Plaintiffs’ Stccriiig C‘oinmittee WCIT to discoiitinw with
presjudice, within 45 clays, subject to re-liling in the MDL within 60 days, all “blcndcd cases”,
’ I I ~ c scttlcimiit agrrement in the Vioxx litigation can be obtained at www.vio?tx. lacd. uscoul-ts.gov.
As of May 3008, 0 1 the approximately 20 cases tried, plaintiffs, nficr appcal, had woii 3 I
dismissal; thc alterations were carried out by intentionally switching the lii-st pagcs ol‘ thc
8
[* 9]
stipulations; Ms. Hiiycs o r soixonc at HFIK deliberatcly switclicd the first pages; and Ms. Hayes
and Ms. Horn participatcd in altering the stipulatioiis. Merck is not specifically accused of any
misdeed. The complaint, then, conjectures that the plaintiffs would have reapcd niillioiis had
they sellled only iigaiiist Pfizer and tried tlicir cases against Mcrcli. The complaint is hut a
theoretical hypothesis, devoid of any fact. 11 is devoid of facts establishing that defcndanls ~nadt .
material misreprcsentntioiis or omissions that they knew to be false so as to induce reliance hy
plaintifli o r that plaiiitiKs s o rclied to their iiijiiry.
lndccd, in opposition, [he 1 LHR defcndarits have submitted emails a i d annexed
dociimeiits which dcmonstrate tlic oppositc. The downients submitted deiiionstrate tliat Ms.
Haycs firs1 le:ti-iicd 01. the stipulations from Pfizcr’s counsel, who iiiformecl her lliat the
stipulations dismissed Merck, as well as Pfizcr, li.om Mr. Benjamin’s cases. PlaintiUs’
stipirlcltioiis are sent and includcd with stipulations of other Pfizcr/Merck plaintiffs represented
by Mr. T3enjamin, 311 of which stipulations dismiss both Pfizer and Merck and all or which 8rc
signed by Mr. Renjnmin. Tlicse stipulations are sent from Pfizcr’s counsel and neithcr originate
with the H H K dcl t i i lnnts nor the W&C: def‘endants.
l’hc allidnvits subniittcd by plaintil‘fs: do not change ihe complaiilt from hypothesis to
1:dct. Moreover, Ms. Waltcrs merely avers to what she did or knew. Mr. Reiisiamin avoids
making a statenleiit rcgardirig the stipulations he sent to Pfizcr’s attorney by speaking to what he
scnt to HHK. Howcvcr, the dociiniants submitled spc& to whai was sent to HHR from Ptlzer’s
counsel. The motions to dismiss, thus, are granted.
Morcovcr, the cases [hat were dismissed with pre-iudice ;is to Merch werc blended cases
9
[* 10]
that the coui-t's C'MO 2 required to be dismissed as to both Merck and Pfizel-. C'MO 2 also
idlowed dcfcndants' counsel to submit proposed orders of dismissal where plaintiffs' counscl
hiled to dismiss the cases as required. The stipulations that were filed dismissing [he cascs as 10
Merck were in kecping with the agreement rellected in C'MO 2.5 Accordingly, it i s
C)K.Dl-IIEI) that the delendants' motions to dismiss the complaint are granted and h e
' complaint is dismisscd in its entirety as against all defmdants, with costs and disburscmcnts to
said deft.ndants as taxcd by Ilie Clcrk of the Court, and the Clerk is directed to enter judgment
accordingly in fiivor o f all of tlic defendants m d against the plaintii'f'f's.
Date: November 10. 201 0 Ncw York, N. Y.
NEW YORK COUNTY CLERK'S OFFICE
' Therc is nothing to demonstrate that plaintiffs filed thcir claims against Mcrck in any action otlicr than the bleiidcd cases before this court. In any evelit, it is clear that plililltiffs cu[1lcl not scttlt: (heir Mcrclc claiiiis, liaving settled the Pf17er clilillls.