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

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SCANNEDON 1111512010

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SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY

PRESENT: Sk!!R!.-FY ~ ’ ~ ~ ’ ~ ~ ~ KORMREICH PART L% Jll Ft i r rP

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INDEX NO.

MOTION DATE

MOTION SEQ. NO.

MOTION CAL. NO. -

this motlon to/for

PAPERS NUMBERED * -

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Index Number 11 831 812009

MATIAS, MARY

MERCK SHARP i% DOHME

SEQUENCE NUMBER 001

vs

DISMISS

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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

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Check one: ‘ FINAL DISPOSITION s’ NON-FINAL DISPOSITION

Check if appropriate: n DO NOT POST 1 - 1 REFERENCE

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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

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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.

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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

victories .

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that is, cascs brought by the same plaintifragainst both Merck and Pfizer Ibr alleged in$ury

arising from ingesting both Vioxx and BextrdCelebrex.

Kotiald 1L Hcii.iamin, counsel for plaintiffs Bates, Matias, Herbcrt (Pcltz), Goliib and

Jaros, liled a single .joint complaint in the 13extrdCclcbrex litigation, in violation of the court’s

CMOS. Benjamin [lien dismissed the complaint and re-filed the cases individually. Morcover,

these casts wcrc blended C R S C S . llegr-lrdless, Reri.jamiii did not disniiss thcni and reiile in the

MDL, ;IS required by the co1ii-t.s CMO 2. CMO 2 speciiically provided that in the event

plaintifl‘s’ counsel fiiiled to disniiss the blended cases as required, dekndants’ counscl could

submit a proposcd order of dismissal with prejudice. JMier way, blciidcd cases were to be

dismissed with prejiidice, with the option of re-filing in the MDL litigation. Not only was this by

agreement of the Steering Coimmittee but it also was impelled by the h c t that the court was

assigned to coordinatc kstl-d(.’cIchrcx cascs, not Vioxx cascs, and by thc difficulty 01 proving

causation when a plaintiff Inad ingcsted Vioxx, Hextra and/or Celebrex.

Th 11 C-’o nzpl ( I it it

I he cumplaint ~rllegcs a “fraudulent schcme to cheat ciefcndants out 01‘ theit. c ; ~ i i s a of’ - >

Lictioii against Merck.” Complaint, Prelim Statement. Specifically, the complaint generally

alleges thar each o1‘the plaintiffs ingested both Cclcbrcx and Vioxx and “sustained indivisible

injury as ii result.” I d . at para. 15. It states that in latc 2008 or early 2000, each plaiiitilTagt.red

to settle his/hcr claims against Pfizer. I d . at para. 17. Without alleging to wliom, the coniplaiiit

allcgcs 3 t was tiiadc clcnr” during ncgotiations that the plaintiffs were iiot relinquishiiig thcir

claims agaiiist Mcrclc duc to tlicir ingestion ot‘Vioxx. I d . at para. 18. I t then statcs, “[ii1pcm

infortiintion and bclicf,” the I I 1 IK defendants sought to include stipulations of dismissal as

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against Merck even though tlley were expressly advised by Ptizcr that Merck was not includd iii

the settlcmcnt. lcl. at para. 19. l’hc coinplaint also alleges that “at a rl-iinirnuni, [ cad i (of thc

defcndants I could not have reasonably believed that defendants had any intention of dismissing

their claims against Merck.” Id. at para. 20. It coiititiues by contcnding that all thc plaintiffs,

s m c Martin, executed stipulations of partial dismissal with prcjudicc as against Pfizer, on

.lanuary 30, 2009 and Martin executed such a stipulation on July 24, 2009. I d . at para. 2 1 .

The complaint thcii asserts that 1-11 I K filed or caused to ht: liled stipiiliitions ofdisiiii

with pre.judicu, of thc I3atcs m d Golub clairiis against Merck on July 2 I , 2009 and the Matias,

Jaros and 1 Icrbcrt c la im on J ~ l y 23, 2009. Id. at para. 22. ‘I’he complaint alleges fraud and a

sc lieme to d c fix1 cl , w I 1 i c 1 I I rpo n in lormat i u n and be 1 i c f i n vo I v cd 11 I c de Uc ii d :ii 1 t t.; e t i gtgi n g i 11

concluct ol‘altering the stipulations plaintiffs’ counsel had actually signed.” Id. at para. 24.

Additionally, the complaint claims, again upon infomiation and beliel; that the alteration o l the

stipulations was intciitionnlly done by switching the front pagc of each stipulation. I d . at 1 3 x 3 .

25. It states that OH or prior to August 10, 2009, sonieonc working for I-IHR or Ms. Hayes

deliheriitely altcrcd counsel’s stiprilation in the Martin case by .srwitcliitig the Iirst p:tge. I t / . at

para. 2h. It fiii-tlicr sl;ilcs h i t “upon informstion aiid beliel” del‘t.ndants I lorn and I laycs

participated in the altcrations cj U the stipulations and in denying and concealjng those alterations.

Ztl. at para. 79. I t claims niillioIis of dollars in damages which could have been obtained from

Me]-& atjiiry trial. had tlic cascs i iot been disniissed. I d at paras. 3 1, 3 3 . In paragraphs 41

tliroitgh 45, the complaint allcgcs specifics as to iiigcstion of Vioxx by all the plainiiffs, except

I’el tz ( t Icrbcrt case), a i ~ l the hann thereby caused them.

In suppori o f ils motion, the HHK defendants submit the aLlidavit o l ‘de ln t ln~ t 14;iyes to

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which she annexes cmails and documents attached to Ihe cmail, which she received during this

Iitigalion. Among tlic er-riails is ;-I J u l y 17, 2009 cmail from Merck’s coia~sel il l which he

rcfcrences all of the plaintifls’ cases and says he is awaiting “dismissals from Mcrck” in those

cases; the subject line of the eniail is “Ron Henjaniin (plaintiffs’ counsel) dismissals.” Exhib. A.

l i i answer, on Iuly 20, Ms. Hayes responds that she reccived no stipulations in the cases and,

among other things, asks if they are Ben-jamin’s cascs (counsel licrein). Exhib D. On July 2 I ,

2009, counsel for Merck aiiswcrs her rcspoiise and, i n /w O l i u , states: “These dismissals ;ire i’or

C;ISCS tliat a1-c par t (.jI‘tlic I’lizer selllenient with Ronald f3erijainin”; I Ic would prcparc a I I ~ W

stipulation in Martiii aud havc MI-. Henjamin sigii beforc lbrwardiiig i t to Ms. Hayes; and the

dismissals in thc Prltz ( I Terlxrt) casc were attached Tor her exccution. E.uhib. C:. Attachecl d s o

are stipiilaticiiis 0 1 disinissal as to both Plizer and Merck in Pcltz, Matias, .I;~ros, GolLib and

LLipole (Martin), 311 signed by Bcnjaniin on tlic second page, as well as two similar stipulation:

in unrelated c;iscs, also signed by Dcri.jarnin. That same day, Ms. Hayes i y m n d s with an cmai

and Pl)l+‘s ol’the stipulations with her sigizatiirc. Exhibs. D, E.

Additionally siibmitted by HI-1R is an aflirniation of Matthew Iiolian, a partner at DI A

Piper 1,L.P ( I IS). Ptizer’s counscl. attcsting to [he cimails’ validity. I - I C W;IS copicd 011 thc eliiails.

Morcuvcr, lie ~ i n e x e ~ n .Ianuary 3 0 , 2009 lctter t k ~ m Mr. Henjamin to I31,A l’ipur, with

stipirlatioiis of dismissal ofplaintiffs’ and other’s annexed, all of which dismiss claims against

both Piizer and Mcrcli.

In opposilion to the rnotions, plaintiffs sirpplcnient their complaint with an Aftlrniatiori of

Ronald l i . Dcnjamin; an Affidavit or Diane Walter, a paralegal in Benjamin’s office: and ail

Affirination 01‘ Mnrya (1. Y o~iiig, an altorney in Bei?.jamin’s oft’ice. 111 Ix-ief, kri-jamin avers thal

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he sent PGzei--only stipulations to HHR. and that Iic agreed to add a signature line for Mcrck hut

not to disniiss them. Wnlters ;ivers that the only stipulations she prepared were Pf-izer-only. m d

that slic “did not prepare, nor dues [their] computer contain, any documents ... that contain the

language that appears on the l h t page of the stipulations dcfendants attach to thcir moving

papers .... Mr. Heii.iamin did not sign stipulations that wcre not prcpared in our office ,... I dispute

thal exhibit A to Mr. Holian’s affirmation attaches thc correct stipulations.” Walters A l f h i .

11118-9. She cxpll-iiiis that liirthcr discovcry is iieccssary bccairse she is “certain” that the

stipulations submitted by delIidants are not the ones she prepared o r Heii.jamin signed.

~ ~ i ~ s ~ * ~ ~ s s ; o ~ 7

On a motioii to dismiss pi.irsLmt to CPIX 32 1 1, the court inus1 accept tlic 1.acls as allegcd

i n the coiiiplainl as trnc, accord plaintiff the benclit of cvcry possible favorablc i1ij.i-cnce and

clcterniirie only whether the Facts as allcged fit within any cognizable legal theory. Morone v

hhrontJ, 50 NY2d 48 I , 484 ( 1 980); Rovrllo IT Orqfino Redly (,‘o.~ 40 NY2d 633. 634 (1976).

CI’LR. 3026 maiiclntes that “1 plleadiiigs shall be lihcrally construed. DeLects shall he ignored i f a

substiantid right o f a party is not prejiidiccd..” In assessing a motion irridcr CPI ,K 321 I ,

howcvcr, ;I court niav fi.cc.ly coiisidei* affidavits submittcd by tlic pl i i j r i t i f i ‘ (o rc111rcly any clefccts

in thc complaiiit. h’oiwllo I’ Or(?/it70 K L > L I I / ~ C ’ o , , s z p v r , a t 635. Ultimately, “the criterion is

whether tlic proponent ol’tlic pleading has a cause of action, not whetlier he has stated one.” Id. at

635. Nonetheless, under C1PI,II 32 1 l(a)(7), a cornplaint must bc dismissed if i l fails lo st:ile 3

causc of action. “Factual allegalioiw that do not state a viable cause of action, that consist 01‘ 1m-c

legal conclusions, or that are inhercntly incredible or clearly contradicted by documentary

evidence :LIT not entitled to such considcration.“ ,5’kill,y~-tn~~~,s, L . [ , .I , . 1’ nro(31. 1 AU3d :it 250.

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(’1’1,R 3 0 l j

r)ct‘cnclanls argil? that plaintiffs are precluded from collaterally attacking the stipululioiis

by alleging fraud in a plenary action, contending that their only means of complaint is through ;i

motion to vacatc brought Lmder CPLR 5015. That reimcdy, howevcr, is not available to plaintiffs

bccausc the court IIC) longer has jurisdiction ovcr the niattcrs that havc been discontinued with

prejudice on stipulation. See In re C.’reamer!f Eslrctc, 37 AD2d 33 (1st Dcpt 1971) (findjiig lower-

court without $urisdiction to eialbrcc stipulation of settleiiicnt and that plenary action was

iicccxsary); C’ilihir/tk 11 Rohu. 20 Misc3d 139(A) (App ‘l’crm 2d Dcpt 2008).

C ‘ P L H 321 1(4(7j

I:raud musl he plcd with particularity. (?Pl,K 3016(h); S C I J PoIw Srr,y:er., 29 AD3d 437,

44 1 ( 1 s t l k p l 2006). -LWhen :L plaintill’briiigs a c m s e of aclion bascd upon fraud, ‘the

circumstances constituting thc wrong sliall be stated in detail.”’ Surgis,s 17 M ~ g i i w / Z i 12 NY2d

527, 530 (2009). Tlic complaint, therefore, must allege facts establishing thc elenicnts o P fi-aud

i i i siifficient dctnil to permit a rcasoiiablc inference of the allegcd conduct. Z d at 53 1 . Fraiid

requires proof of misrepresciitatic717~tioii or a material omission of fact, knowledge by the parly who

made tlic ~iiisr~pr-escntalioi~ 11i:it i l was MSL‘ w h e ~ iiiade, jiistifi;lhle reliaiice by tlic plaiiitifi’and

resulting in jury . h r m / lfol(/ii~i,q ’0. X J Sruirh ~ ~ / w J J , 88 NY2d 41 3, 421 ( 1 c 1 9 G ) . The complaint

hcrc, oven suppleiiieiited by aflidavits, fails i n this burdcn.

‘i‘ht: iiistanl coiiiplainl is replete with surmise arid coiiclusory statciiieuts. Most ul’tlie

allegatioiis in the coiiiplaint are asserted upon information and belief. Thus, the complaint

specdatcs, “upon intbriiiation arid bclief;” that: defendants altcred p1aintil’f.s’ stipulations of

dismissal; thc alterations were carried out by intentionally switching the lii-st pagcs ol‘ thc

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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

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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.

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