(PC) Martin v. Petras ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 O.Z. MARTIN, No. 2:20-cv-1536 WBS CKD P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 PETRAS, et al., 15 Defendants. 16 17 Plaintiff is a California prisoner proceeding pro se with a civil action. The motion to 18 dismiss for failure to state a claim upon which relief can be granted filed by defendants Merck & 19 Co. and Merck Sharp & Dohme (collectively Merck) is before the court. 20 I. Standard for Motion to Dismiss for Failure to State a Claim 21 When considering whether a compliant should be dismissed pursuant to Rule 12(b)(6) of 22 the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted, 23 the court must accept the allegations in the operative pleadings as true, Erickson v. Pardus, 551 24 U.S. 89, 93-94 (2007), and construe the complaint in the light most favorable to the plaintiff, see 25 Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Along with the allegations made in the operative 26 complaint, the court may consider “matters of which a court may take judicial notice.” Tellabs, 27 Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). 28 ///// 1 In order to avoid dismissal for failure to state a claim a complaint must contain more than 2 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 3 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 4 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 5 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 6 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 7 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 8 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 9 at 678. 10 II. Plaintiff’s Allegations 11 In the operative first amended complaint, plaintiff alleges that on May 25, 2017, Dr. Liu, a 12 urologist, prescribed for plaintiff the drug Proscar1 which is manufactured by Merck. According 13 to the Food and Drug Administration (FDA) at fda.gov, Proscar is a “5-Alpha Reductase 14 Inhibitor” which is a “group of drugs that are used in the treatment of an enlarged prostate gland 15 (benign prostatic hyperplasia).”2 Plaintiff alleges that he took Proscar from June of 2017 through 16 October of 2018. Plaintiff alleges that he was never warned by any of physicians about any 17 potential side effects. 18 Following a visit with Dr. Hsieh on September 21, 2018, plaintiff was diagnosed with a 19 “high grade aggressive prostate cancer.” Plaintiff alleges that the cancer was caused by Proscar. 20 III. Proscar Label 21 When plaintiff took Proscar, the label warned that use of a 5-Alpha Reductase Inhibitor 22 such as Proscar might increase the risk of development of high-grade prostate cancer. The label 23 1 In his amended complaint, plaintiff mostly refers to the drug he was prescribed as 24 “Finasteride.” The court judicially notices, pursuant to Federal Rule of Evidence 201(b)(2), that Proscar is the brand name assigned by Merck to its version of Finasteride used to treat benign 25 prostatic hyperplasia. Herein, the court refers to the drug plaintiff was prescribed as “Proscar.” The court also judicially notices that Merck markets Finasteride as Propecia which is used to treat 26 baldness in males and is manufactured at a different dose than Proscar. 27 2 The court also judicially notices this fact pursuant to Federal Rule of Evidence 201(b)(2). 28 1 indicates this conclusion was based upon a study in which individuals taking Finasteride 2 developed high grade prostate cancer at a rate of 1.8% versus a placebo rate of 1%.3 3 IV. Plaintiff’s Claims and Analysis 4 A. Failure to Warn / Inadequate Warning 5 Plaintiff claims that Merck failed to warn him and his physicians about the “dangerous 6 propensities” of taking Proscar. However, plaintiff fails to point to anything which could provide 7 the basis for a reasonable inference that Merck was somehow aware of any potential side effects 8 of Proscar which were not included on the label.4 For these reasons, plaintiff fails to state a claim 9 for failure to warn or inadequately warning. 10 B. Breach of Warranty & Manufacture / Design Defect 11 Plaintiff also alleges that a manufacturing or design defect with respect to Proscar either 12 caused or accelerated his prostate cancer. He also claims that Merck is liable for breach of either 13 an express or implied warranty. However, as noted by Merck, in California “breach of express or 14 implied warranty claims, [and] design defect claims, may not be maintained against a 15 manufacturer of prescription drugs who has properly prepared the product and marketed it with 16 warnings of known or knowable dangers.” Huft v. Horowitz, 4 Cal.App.4th 8, 24 (4th Dist. 17 1992). As indicated above, plaintiff fails to point to anything suggesting the label for Proscar was 18 somehow inadequate. 19 To the extent that plaintiff alleges that there was some defect in the manufacturing process 20 for the Proscar he took, he fails to point to anything which reasonably suggests as much. 21 IV. Conclusion 22 For all of the foregoing reasons, the court will recommend that Merck’s motion to dismiss 23 be granted and plaintiff’s remaining claims against Merck be dismissed. In light of the court’s 24 3 The court judicially notices the contents of the label for Proscar issued March 11, 2014 25 pursuant to Federal Rule of Evidence 201(b)(2). The label appears at accessdata.fda.gov/scripts/cder/daf/index.cfm?event=overview.process&ApplNo=20180. 26 27 4 Plaintiff seems to suggest that the label should have indicated that Proscar in fact causes cancer rather than increases the risk of developing cancer. ECF No. 15 at 9. Plaintiff points to no facts 28 supporting that allegation. 1 || recommendations, the court need not address Merck’s other arguments in favor of dismissal. 2 In accordance with the above, IT IS HEREBY RECOMMENDED that 3 1. Defendants Merck & Co. and Merck Sharp & Dohme’s motion to dismiss (ECF No. 4 | 38) be granted: 5 2. Claim 2 in plaintiff's amended complaint be dismissed; and 6 3. Defendants Merck & Co. and Merck Sharp & Dohme be dismissed from this action. 7 These findings and recommendations are submitted to the United States District Judge 8 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(I). Within fourteen days 9 || after being served with these findings and recommendations, any party may file written 10 || objections with the court and serve a copy on all parties. Such a document should be captioned 11 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 12 || objections shall be served and filed within fourteen days after service of the objections. The 13 || parties are advised that failure to file objections within the specified time may waive the right to 14 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 15 | Dated: February 1, 2022 fi 20 } Kt | / , a he 16 CAROLYN K DELANEY 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 | > mart] 536.mtd 22 23 24 25 26 27 28