10-4428-cv

Koncelik v. Savient Pharm., Inc.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED

BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. 

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE

NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY

OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the

Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,

on the 13th day of January, two thousand twelve.

Present: ROGER J. MINER,

ROSEMARY S. POOLER,

BARRINGTON D. PARKER,

Circuit Judges.

_______________________________________________________ 

LAWRENCE J. KONCELIK, 

Plaintiff-Appellant,

RICHARD SAGALL, INDIVIDUALLY AND ON BEHALF OF

ALL OTHERS SIMILARLY SITUATED, 

Plaintiff,

v. 10-4428-cv

SAVIENT PHARMACEUTICALS, INC., CHRISTOPHER G.

CLEMENT, PHILIP K. YACHMETZ, ZEBULUN D. HOROWITZ,

BRIAN J. HAYDEN, PAUL HAMELIN, ROBERT LAMM, 

Defendants-Appellees.

_______________________________________________________ 
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For Appellant: Marc I. Gross, Shaheen Rushd & Tamar A. Weinrib, Pomerantz

Haudek Grossman & Gross LLP, New York, N.Y. 

 

For Appellees: Peter J. Macdonald, Paul M. Winke & Brian A. Sutherland,

Wilmer Cutler Pickering Hale and Dorr LLP, New York, N.Y.

Appeal from a judgment of the United States District Court for the Southern District of

New York (Daniels, J.).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

Lawrence J. Koncelik appeals from the district court’s dismissal of his lawsuit pursuant

to Federal Rule of Civil Procedure 12(b)(6). We assume the parties’ familiarity with the

underlying facts of the case and the issues raised on appeal.

“We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6),

construing the complaint liberally, accepting all factual allegations in the complaint as true, and

drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner, 282 F.3d

147, 152 (2d Cir. 2002). 

Koncelik has not alleged facts that raise “a strong inference that the defendant[s] acted

with the required state of mind,” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 314

(2007) (internal quotation mark omitted)—that is, “conscious misbehavior or recklessness,” ECA

& Local 134 IBEW Joint Pension Trust of Chi. v. JP Morgan Chase Co., 553 F.3d 187, 198 (2d

Cir. 2009).

To survive a motion to dismiss, Koncelik need not allege that defendants knew of

statistically significant evidence that pegloticase caused cardiac-related adverse events. See

Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309, 1324 (2011).

Rather, the complaint must raise an inference—“cogent and at least as compelling as any

opposing inference of nonfraudulent intent”—that defendants recklessly or intentionally

disregarded the risk that a causal connection might exist between pegloticase and cardiac-related

adverse events. Tellabs, 551 U.S. at 314.

Koncelik has not alleged facts sufficient to raise such an inference. Cf. Matrixx, 131 S.

Ct. at 1324-25 & n.15 (concluding that the complaint’s allegations—including that “Matrixx was

sufficiently concerned about the information it received that it . . . hired a consultant to review

the product,” “convened a panel of physicians and scientists,” and even issued a “misleading . . .

press release” denying a causal connection in the face of inconclusive evidence—“g[a]ve rise to

a ‘cogent and compelling’ inference that Matrixx elected not to disclose the reports of adverse

events not because it believed they were meaningless but because it understood their likely effect

on the market”).
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Accordingly, the order of the district court is AFFIRMED. 

 FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk