Almost 11 years after the suit was filed, a Delaware court has dismissed a class action against AstraZeneca over its alleged consumer fraud in the marketing of heartburn medication Nexium.
Superior Court Judge Vivian L. Medinilla said there was just not enough evidence to show that the plaintiffs—a group of four New York-based health care funds—relied on any alleged misrepresentation by AstraZeneca that Nexium was a better drug than the over-the-counter version of Prilosec.
In applying New York law to the plaintiffs’ consumer fraud claims, Medinilla said the state’s General Business Law doesn’t require individual reliance on misrepresentations, but at least “some awareness” of the misrepresentation. Medinilla said the complaint did not detail any advertising the health care funds or their members’ doctors may have seen before the funds made the decision to reimburse their members for Nexium.
Medinilla rejected the plaintiffs’ arguments that the laws of the 14 states where the members purchased the drug should apply, finding the union health plans were for current and former New York City employees. While some of them may now live elsewhere, New York had the most interest in enforcing its consumer protection law in this case, she said.
The judge also rejected the plaintiffs’ argument that Delaware law should apply, finding the plaintiffs are headquartered in New York, their decisions to reimburse for Nexium were made in New York and they made the payments from New York. That outweighed the fact that AstraZeneca is based in Delaware and the plaintiffs’ members purchased the drug outside of New York in some instances, the judge ruled.
Applying New York law doomed the plaintiffs’ case because of the reliance requirement. Delaware law, on the other hand, does not require any sort of reliance to prove consumer fraud claims, Medinilla noted.
Medinilla said she would dismiss the case with prejudice, finding the plaintiffs had ample opportunity to amend their pleadings since 2004 and given the case sat idle for three years.
Michael P. Kelly of McCarter & English in Wilmington represented AstraZeneca. He said the judge issued a thoughtful and well-reasoned opinion. Kelly said there was a “complete failure of proof,” with no deceptive ads and no damages caused by any ads.