Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Cal.: Consumer’s Zoloft misrepresentation claims time-barred, (Sep 3, 2014)

By Greg Hammond, J.D.

A former consumer of the antidepressant prescription drug Zoloft will not be able to pursue claims that Pfizer, Inc. made false and misleading statements regarding the drug’s efficacy in treating depression. In dismissing the consumer’s complaint with prejudice, the federal district court in San Jose, California determined that her claims were time-barred, and she failed to set forth any facts that she acted with reasonable diligence in preserving her rights under the delayed discovery rule (Plumlee v. Pfizer, Inc., August 29, 2014, Koh, L.).

Background. Pfizer is a pharmaceutical company that manufactures and sells Zoloft, a prescription drug that was approved by the Food and Drug Administration in 1991 for the treatment of major depressive disorder. Laura A. Plumlee was prescribed Zoloft in 2005, and purchased the drug for a period of four years, during which her dosage increased from 50 mg per day doses to 400 mg per day. She alleged that she was induced into purchasing and ingesting Zoloft after seeing an advertisement promoting the drug’s efficacy and after reading the drug label. Plumlee stopped taking the drug in 2008, when she determined the drug “simply did not work for her.” She discovered the alleged misrepresentations and omissions regarding Zoloft’s efficacy in 2012, when she viewed a 60 Minutes segment regarding the placebo effect and depression.

Plumlee filed suit in January 2013, alleging five theories of misrepresentations and omissions in violation of California’s Consumers Legal Remedies Act (CLRA), Unfair Competition Law (UCL), and False Advertising Law (FAL). However, the court granted Pfizer’s motion for judgment on the pleadings in February 2014, after determining that Plumlee’s claims were time-barred and she failed to plead any facts demonstrating reasonable diligence in preserving her claims. After filing a first amended complaint in March 2014, Pfizer moved to dismiss.

Claims time-barred. In support of its motion to dismiss, Pfizer argued that all of Plumlee’s claims were time-barred under the relevant four-year statutes of limitations. The court agreed, noting that Plumlee filed her original complaint in January 2013, four years and seven months after her claims accrued.

Under the delayed discovery rule, which could potentially toll the statute of limitations, Plumlee was required to demonstrate that she acted “reasonably and diligently in preserving” her rights. In previously granting Pfizer’s motion for judgment on the pleadings, the court directed Plumlee to plead facts showing her diligence and warned that a failure to cure such a deficiency would result in a dismissal with prejudice. However, in considering Plumlee’s first amended complaint, the court concluded that—once again—Plumlee failed to identify any actions she took to “investigate the alleged wrongful conduct by Pfizer at the time a reasonable person should have suspected wrongdoing.”

Specifically, the court determined that Plumlee’s claims accrued in June 2008, when she determined that Zoloft was not helping her depression. At that time, a duty to investigate arose with regard to the allegedly false and misleading advertisements and drug label. However, Plumlee failed to allege any facts demonstrating an attempt to discover why Zoloft was ineffective in treating her depression between June 2008, and when she saw the 60 Minutes segment in May 2012. Moreover, “dozens of exhibits” were submitted by Pfizer demonstrating that a reasonably diligent consumer could have discovered information regarding the placebo effect, Zoloft’s effectiveness, and unpublished clinical trials. “Had [Plumlee] taken any minimal step toward investigating her injury,” the court noted, “she would have discovered the abundant publicly available information.” Because Plumlee failed to demonstrate reasonable diligence, the delayed discovery rule could not apply, and the claims were deemed time-barred. Plumlee’s claims were therefore dismissed with prejudice.

The case number is 13-CV-00414-LHK.

Attorneys: Christopher Luke Coffin (Pendley Bauldin Coffin, LLP) for Laura A. Plumlee. Mark S. Cheffo (Quinn Emanuel Urquhart & Sullivan, LLP) for Pfizer, Inc.

Companies: Pfizer, Inc.

Cases: Advertising CaliforniaNews