The Third Circuit in In re: Avandia Marketing Sales Practices & Products Liability Litigation recently refused to revive a putative class action accusing GlaxoSmithKline PLC (“GSK”) of violating an express warranty allegedly contained on the label of its diabetes drug, Avandia, which declared the drug “safe and effective.” In so doing, the Court reaffirmed the narrow scope of a breach-of-express-warranty claim under New Jersey law and the requirements necessary to sustain such a claim.
In an opinion authored by Judge Debevoise, a federal district court in New Jersey denied Ford Motor Company’s attempt to toss out a putative class action regarding an alleged defect in the fuel tanks of various Ford trucks and vans. In Coba v. Ford Motor Co., Judge Debevoise held that the plaintiffs’ claims of breach of express warranty and breach of the implied covenant of good faith and fair dealing were adequately pleaded based on allegations that Ford knowingly replaced defective fuel tanks with other defective tanks. But Judge Debevoise dismissed, with leave to replead, the plaintiffs’ claims of common law fraud and violations of the New Jersey Consumer Fraud Act because there were no allegations that Ford knew the plaintiffs’ tanks were defective when they were sold.
Representations That Product’s Effectiveness is “Clinically Proven,” Though Not “Puffery,” Fail to Support State New Jersey Consumer Fraud Act and Implied Warranty Claims
In Lieberson, the District Court for the District of New Jersey held that where a complaint does not allege whether or when the allegedly false advertisements appeared in magazines, and whether or when the plaintiff may have viewed them, they were “patently insufficient” to plead a New Jersey Consumer Fraud Act, N.J.S.A. 56:8-2, claim and otherwise fail to satisfy Rule 9(b) . The Plaintiff in Lieberson alleged that Johnson & Johnson’s baby wash products falsely stated that they were “clinically proven” to help babies sleep better. The Lieberson court held that to properly plead a New Jersey Consumer Fraud Act claim with the specificity required under Rule 9(b), a plaintiff must identify the origin of the statements and that they were actually viewed by the plaintiff. Notably, however, the Lieberson court declined to conclude that the product label’s statements that the product was “clinically proven” to help babies sleep better was mere non-actionable “puffery.” On the contrary, the court found that “incorporation of the words ‘clinically proven’ . . . a statement that might otherwise be considered puffery, i.e., that the products will help babies sleep, was transformed into something that appears ‘both specific and measurable.’”