Sixth Circuit affirms granting of motion to dismiss where complaint fails to allege whether plaintiff had received name-brand or generic of Novartis drug.

08/23/11

TN

6th Cir. -- United States Court of Appeals for the Sixth Circuit

Complex Litigation

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In Patterson v. Novartis Pharms. Corp., the Sixth Circuit affirmed the granting of a motion to dismiss in a case in which the plaintiff's complaint failed to allege whether she had received name-brand Aredia® or the generic version of the drug.  The court held that the complaint's "and/or" language only alleged that the plaintiff may have received the name-brand drug and such a pleading failed to satisfy the standard elucidated by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).  The appeals court further held that the district court did not abuse its discretion in denying plaintiff the right to take discovery, noting that Twombly and Iqbal do not permit a plaintiff to take discovery to cure a pleading defect.  Finally, the court held that plaintiff could not rely upon evidence outside of the pleading because she failed to request that the motion to dismiss be converted into one for summary judgment, and the district court did not abuse its discretion in denying leave to amend.

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