Jon Campisi Oct. 18, 2013, 7:16am


A Garden State man who sued drugmaker GlaxoSmithKline over the

diabetes drug Avandia, but not over allegations that he was injured by the pharmaceutical, has had his third amended complaint dismissed by a federal judge.

U.S. District Judge Cynthia Rufe, of the Eastern District of Pennsylvania, granted a motion on Oct. 15 by GSK to dismiss plaintiff Richard V. D’Apuzzo’s latest amended complaint in his class action against the drug manufacturer.

D’Apuzzo alleged in his suit against the drug company that GSK concealed the risks of Avandia use while promoting the drug’s safety, efficacy, and effectiveness through a “fraudulent and deceptive marketing program.”

This resulted in the plaintiff and others purchasing Avandia instead of seeking alternative treatments for diabetes, the lawsuit contended.

D’Apuzzo, who resides in New Jersey, claimed that his doctor would have prescribed insulin or alternative treatments had the physician known about Avandia’s risks.

The man says he had to pay a higher purchase price for Avandia, including higher amounts in co-payments, and that others had found themselves in a similar situation.

D’Apuzzo sought a refund of any monies he had paid for Avandia, including the insurance co-pays.

The plaintiff’s complaint contained claims for violations of New Jersey’s Consumer Fraud Act, but most of the claims, Rufe, the federal judge, ruled, are barred by New Jersey’s Products Liability Law, which is the exclusive basis for any product liability action defined as “any claim or action brought by a claimant for harm caused by a product, irrespective of the theory underlying the claim, except actions for harm caused by breach of an express warranty.

Therefore, all of D’Apuzzo’s claims, Rufe wrote, with the exception of the express warranty claim, would have to be brought under the Products Liability Law of New Jersey, and “Plaintiff does not attempt to proceed under that statute.”

In his express warranty claim, the plaintiff alleged that the drug company stated on its labels and packaging to the plaintiff, prescribers, patients and other consumers that Avandia would provide assistance in the management of Type 2 diabetes in a “safe and efficacious manner,” the judicial memorandum states.

D’Apuzzo alleged that GSK breached this warranty by selling and marketing Avandia that is not efficacious, as the pharmaceutical fails to manage or reduce the risk factors for Type 2 diabetes, and actually increases serious injury or death, constituting a material breach of the warranty.

Rufe, however, wrote that those assertions fall “significantly short of what is required; Plaintiff fails to allege the exact text of the warranties, or the precise time periods these warranties were in effect.

“Without such allegations,” the judge wrote, “the claim cannot stand.”

In ruling in favor of GSK, Rufe noted that the plaintiff has had three attempts to file a complaint that states a cause of action, yet he has failed to do just that.

“The Court finds it would be inequitable to permit any further amendment, and the dismissal will be with prejudice,” she wrote.

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