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Stratford v. SmithKline Beecham Corp.

United States District Court for the Southern District of Ohio, Eastern Division

June 17, 2008, Decided; June 17, 2008, Filed

Case No. 2:07-CV-639

Opinion

Memorandum Opinion and Order

This matter is before the Court on Defendant SmithKline Beecham Corporation d/b/a GlaxoSmithKline's (hereinafter "GSK" or "Defendant" ) motion for partial dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6) 1. Plaintiffs are Pamela D. Stratford, individually and as personal representative of the estate of Madison A. Stratford, and Thomas C. Stratford, individually  [*2] (collectively "Plaintiffs" or "Stratfords"). Plaintiffs assert claims for wrongful death and a survivorship claim, alleging that GSK was negligent in failing to act as a reasonably prudent drug manufacturer in the researching and promoting of the antidepressant Paxil (Count I); that GSK was negligent in that it breached its duty of ongoing pharmaco-vigilance (Count II); that GSK failed to warn of the harm associated with taking Paxil while pregnant (Count III); that GSK breached an express warranty that Paxil was safe and effective for use in pregnant women (Count IV); that GSK breached implied warranties of merchantibility and fitness for a particular purpose (Count V); and that GSK committed fraud (Count VI).

On January 22, 2008, Defendant filed its motion to dismiss Counts I, II, IV, V, VI, and VII for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Plaintiffs filed their response on March 7, 2008. On March 21, 2008, Defendant filed its reply memorandum in support of the motion for partial dismissal. As set forth below, the Court grants in part and denies  [*3] in part the Defendant's Partial Motion for dismissal. Counts I (negligence), II (negligent pharmaco-vigilance), IV (breach of express warranty) and VI (fraud) are dismissed without prejudice. Count V (breach of implied warranty) is dismissed with prejudice for failure to state a claim upon which relief can be granted. Counts III and VII are not dismissed.

I. FACTUAL BACKGROUND

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2008 U.S. Dist. LEXIS 84826 *; CCH Prod. Liab. Rep. P18,038

PAMELA STRATFORD, et al., Plaintiffs v SMITHKLINE BEECHAM CORP., et al, Defendants.

CORE TERMS

warranty, manufacturer, pregnant, survivorship, abrogated, pregnancy, accrued, pharmaco-vigilance, antidepressants, preempted, safe, misrepresentation, fraudulent, prescribed, conform, fetus, label