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ORDER

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

IN RE: PHENYLPROPANOLAMINE

(PPA) PRODUCTS LIABILITY 

LITIGATION,

______________________________

MDL NO. 1407

ORDER GRANTING IN PART 

AND DENYING IN PART 

BAYER CORPORATION’S 

MOTION FOR A MORE 

DEFINITE STATEMENT, 

MOTION TO DISMISS, AND 

MOTION TO STRIKE 

This document relates to:

The cases listed in Exhibit A

Defendant Bayer Corporation (“Bayer”) moves the court,

pursuant to Rules 8(a), 9(b), 10(b), 12(b)(6), 12(e) and 12(f) of

the Federal Rules of Civil Procedure, for entry of an order (i)

dismissing Counts III(A), IV(A), and V(A) of plaintiffs’

complaints because the Counts do not state a claim upon which

relief may be granted; (ii) striking immaterial allegations in

the complaints; (iii) requiring more definite and separate

statements of claims; and (iv) enlarging the time to respond to

any remaining portions of the complaints. Having reviewed the

motions, the oppositions filed, and the replies thereto, the

court hereby finds and rules as follows:

In November 2005, sixteen virtually identical lawsuits were

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ORDER

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filed in Florida state courts. All of the plaintiffs allege

injury as the result of ingesting a phenylpropanolamine (“PPA”)-

containing product. Each plaintiff sued a number of defendants,

including Bayer, and allege causes of action for strict

liability, negligence, fraud and misrepresentation, negligent

misrepresentation, and conspiracy to defraud and conceal. The

cases were removed to the United States District Court for the

Southern, Middle and Northern Districts of Florida and later

transferred to this court as part of Multi-District Litigation

1407. 

As a preliminary matter, the court notes that the complaints

fail to comply with Rules 8(a) and 8(e) of the Federal Rules of

civil procedure. Rule 8(a) states that “[a] pleading which sets

forth a claim for relief...shall contain...a short and plain

statement of the claim showing that the pleader is entitled to

relief.” Rule 8(e)(1) requires that “[e]ach averment of a

pleading shall be simple, concise, and direct.” Rather than heed

this directive, each plaintiff filed a repetitive, often

conclusory, discourse that is anything but direct or concise. For

instance, the complaint in Lindsay v. Bayer Corporation et al.,

No. 5-cv-1031 is 118 pages long and has 519 paragraphs.

Remarkably, despite their verbose nature, the complaints

also run afoul of Federal Rule 9(b). Rule 9(b) requires that

“[i]n all averments of fraud...the circumstances constituting

fraud...shall be stated with particularity.” Fed.R.Civ.P. 9(b);

see also Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1104 (9th

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ORDER

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Ci. 2003). Thus, to comply with Rule 9(b), averments of fraud

must be specific enough to give defendants notice of the

particular misconduct they are charged with so that they can

defend against the charge and not just deny they have done

anything wrong. Vess, 317 F.3d at 1106. To that end, the

plaintiffs must plead facts as to time, place, and substance of

the defendant’s alleged fraud, specifically the details of the

defendant’s allegedly bad acts, when they occurred, and who

engaged in them. See, e.g., Cooper v. Pickett, 137 F.3d 616, 627.

Similarly, allegations of negligent misrepresentation must be

plead with particularity. See, e.g., Harrison Enters., Inc., v.

Moran, 1999 WL 1211753 (S.D. Fla. 1999)(recognizing that under

Florida law “an action for negligent misrepresentation sounds in

fraud rather than negligence,” and therefore the pleading

requirements of Rule 9(b) apply to such an action).

A motion to dismiss a claim pursuant Rule 9(b) for failure

to plead with particularity is the functional equivalent of a

motion to dismiss under Rule 12(b)(6). Vess, 317 F.3d at 1107.

Such dismissals are ordinarily without prejudice. Id. at 1108;

Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 701 (9th Cir.

1988)(stating that leave to amend should be granted if it appears

at all possible that plaintiff can correct the defect).

The allegations of fraudulent and negligent

misrepresentation contained in plaintiffs’ complaints fail to

meet the requirements of Rule 9(b). In their oppositions,

plaintiffs restate numerous conclusory allegations made in their

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ORDER

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complaints; however, the allegations fail to satisfy Rule 9(b)’s

“particularity” requirement and fail to provide Bayer with

adequate notice of the precise misconduct with which it is

charged. Plaintiffs’ claims are based on the contention that

Bayer undertook an advertising campaign that through purported

“affirmative misrepresentations and omissions, falsely and

fraudulently sought to create the impression and to convey to the

plaintiff[s] and others on whom the plaintiff[s] would rely that

the use of [Alka Seltzer Plus Cold Effervescent Medicine] was

safe[.]” Compl. ¶¶ 168, 234. Though plaintiffs quote two alleged

misrepresentations they attribute to Bayer, “safe and effective”

and “all the doctor recommended ingredients,” Compl. ¶¶ 175, 241,

plaintiffs do not identify with specificity the precise

misrepresentations or omissions made, the time, place, and manner

in which they were made, and the persons to whom they were made.

Moreover, plaintiffs also fail to allege specific facts regarding

their reliance upon the alleged misrepresentation, such as where,

when and how they became aware of such alleged

misrepresentations. Plaintiffs also fail to allege such basic

facts as when they allegedly ingested the PPA-containing

products, when their alleged injuries occurred, and when they

first discovered that the injuries may have been caused by

Bayer’s misconduct. Accordingly, Count III(A)-Fraud and

Misrepresentation and Count IV(A)-Negligent Misrepresentation

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1

Because the Counts will be dismissed, it is not necessary

for the court to address Bayer’s argument that the “additional

allegations” contained in the Counts should be stated separately,

or in the alternative, should be stricken as immaterial pursuant

to Rules 10(b) and 12(f).

ORDER

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fail to meet the particularity requirement of Rule 9(b).1 See

United States ex rel. Lee v. SmithKline Beecham, Inc., 245 F.3d

1048, 1051 (9th Cir. 2001)(holding that broad allegation that the

defendant “knowingly...changed control numbers [on various tests]

to wrongfully represent that the laboratory results fell within

an acceptable standard of error,” where the plaintiff did not

specify the “types of tests implicated in the alleged fraud,

identify the [defendant’s] employees who performed the tests, or

provide any dates, times, or places the tests were conducted,”

did not satisfy Rule 9(b)).

Count V(A), which purports to state a cause of action for

civil conspiracy against Bayer, similarly fails. Although Rule

9(b) does not list conspiracy as a cause of action which must be

pled with particularity, a complaint will be dismissed where the

allegations are conclusory and vague. See Semegen v. Weidner, 780

F.2d 727, 731 (9th Cir. 1985)(recognizing that if a plaintiff

intends to allege conspiracy to commit fraud, she must do so with

particularity, as required by Rule 9(b)). In other words, a

plaintiff may not simply aver that a conspiracy existed, a

factual basis for the legal conclusion that a conspiracy existed

must be pled. Id. at 731.

As a threshold matter, because the crux of a civil

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ORDER

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conspiracy is not the conspiracy itself but the tort committed

through the conspiracy, a complaint must properly allege all of

the elements of the underlying tort. Buckner v. Lower Florida

Keys Hosp. Dist., 403 So.2d 1025, 1027 (Fla. 3d DCA 1981).

Accordingly, because plaintiffs’ claims for fraudulent

misrepresentation fail for lack of particularity, plaintiffs’

claims for conspiracy to defraud and fraudulently conceal

necessarily fail. Plaintiffs’ argument that they need not allege

an actionable underlying tort in order to state a claim for civil

conspiracy is contrary to well-established Florida law. See,

e.g., Buckner, 403 So.2d at 1027. Neither Kilgore Ace Hardware,

Inc. v. Newsome, 352 So. 2d 918 (Fla. 2d DCA 1977) nor Blatt v.

Green, Rose, et al., 456 So. 2d 949 (Fla. 3d DCA 1984) cited in

plaintiffs’ oppositions contradict Bayer’s position that the

plaintiffs must state a claim for fraudulent misrepresentation in

order to state a claim for conspiracy. See Newsome, 352 So.2d at

920 (finding that complaint stated a cause of action for civil

conspiracy based on an independent wrong, slander); Blatt, 456

So.2d at 950 (expressly recognizing that a cause of action for

civil conspiracy exists only if “the basis for the conspiracy is

an independent wrong or tort which would constitute a cause of

action if the wrong were done by one person” and holding that

plaintiff’s complaint stated a cause of action for civil

conspiracy based on an independent wrong, breach of fiduciary

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2

Plaintiffs’ reliance on Churruca v. Miami Jai-Alai, Inc.,

353 So.2d 547 (Fla. 1977) is also misplaced. Although the

Churruca court recognized the existence of an “independent tort”

of conspiracy under certain circumstances, this does not save

plaintiffs’ conspiracy claims. In Churruca, the court found that

a conspiracy alleged to have been engaged in by Jai-Alai frontons

to permanently prevent the re-employment of player who had

previously gone on strike “in retaliation for their prior

demands” constituted an actionable “independent tort.” 353 So.2d

at 549. The court recognized that ordinarily “an act which

constitutes no ground of action against one person cannot be made

the basis of a civil action for conspiracy” but that where

persons, who by virtue of their number possess a peculiar power

of coercion or economic influence, conspire to act on malicious

motives, the conspiracy itself may become an independent tort.

Id. at 550. “The essential elements of this” the court stressed,

“are a malicious motive and coercion through numbers or economic

influence.” Id. Neither of these “essential” elements are alleged

in the complaints. Accordingly, plaintiffs cannot characterize

their claims as one for the independent tort of conspiracy.

ORDER

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duty imposed by Florida Probate Code).2

Moreover, plaintiffs have failed to allege the facts of

conspiracy with the requisite specificity. For example, with

respect to the acts allegedly committed by Bayer in furtherance

of the conspiracy, plaintiffs simply allege in a conclusory

fashion that Bayer and the other alleged conspirators did

“[a]dvertise, promote[,] distribute, market and sell PPAcontaining products that were defective and unsafe...” without

adequate warnings and delay the imposition of labeling

requirements and regulatory reclassification of PPA-containing

products. Compl. ¶ 313. Simply identifying the subject matter of

the alleged acts without any specificity--such as time, place or

manner--lacks the particularity required in alleging conspiracy.

The facts constituting an alleged conspiracy must be pled, and

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3

Because Count V(A) will be dismissed, it is not necessary

for the court to address Bayer’s argument that the “additional

allegations” contained in Count V(A) should be stated as a

separate counts, or in the alternative, the allegations should be

stricken as impertinent or immaterial pursuant to Rules 10(b) and

12(f).

ORDER

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conclusory allegations of conspiracy are insufficient.

Accordingly, Count V(A)-Civil conspiracy also fails for lack of

particularity.3

Count I(A) of the complaints allege that Bayer is strictly

liable for plaintiffs’ injuries because the PPA-containing

product manufactured by Bayer was unreasonably dangerous due to

(i)a design defect, (ii)a warning defect, (iii) insufficient

testing, (iv) insufficient instructions for use, and (v)

misleading advertising. Bayer admits that two Florida district

courts of appeal have recognized a separate strict liability

cause of action based upon a warning defect, see Griffin V. KIA

Motors Corp., 843 So.2d 336 (Fla 1st DCA 2003); Ferayorni v.

Hyundai Motor Co., 711 So.2d 1167 (Fla. 4th DCA 1998), but

nevertheless argues that plaintiffs’ strict liability claims

should be dismissed until the Florida Supreme Court determines

that such a cause of action exists under Florida law. Bayer’s

position is contrary to well-established law. The Florida Supreme

Court has unequivocally stated that “[t]he decisions of district

courts of appeal represent the law of the state unless or until

overruled by Supreme Court.” Stanfill v. State, 384 So.2d 143,

144 (Fla. 1980). Since the First District Court of Appeals and

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4

Several of the complaints also purport to state a claim for

loss of consortium. Recovery for loss of consortium is dependant

on the success of the underlying claims. As such, the loss of

consortium claims are limited by the terms of this order.

ORDER

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the Fourth District Court of Appeals have recognized a separate

strict liability warning defect cause of action, this is the law

for Florida to which courts must adhere. Id. at 144.

Bayer also argues that Florida law does not recognize a

cause of action for strict liability based on insufficient

testing of a product, insufficient instructions for use of a

product, or misleading advertising of a product. Bayer relies on

Adams v. G.D. Searle & Co., Inc., 576 So.2d 728, 730-31 (Fla. 2d

DCA 1991) in which the court recognizes that “a manufacturer’s

duty to inspect and test...is a subpart of a manufacturer’s duty

to design a product with reasonable case,” and thus no cause of

action exists for breach of such duty separate and apart from a

cause of action for failure to warn or for strict liability based

on a design defect. Plaintiffs failed to set forth any authority

to rebut this argument. In fact, plaintiffs failed to set forth a

single Florida case that recognizes a cause of action for strict

liability based on insufficient testing and instructions or

misleading advertising. Accordingly, the court finds that these

allegations should be stricken from Count I(A).4

Based on the foregoing, the court hereby (1) DISMISSES

without prejudice Count III(A)-Fraud and Misrepresentation, Count

IV(A)-Negligent Misrepresentation, and Count V(A)-Conspiracy to

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Defraud and Conceal of plaintiffs’ complaints for failure to

satisfy the requirements of Rule 9(b); (2) STRIKES paragraph

20(d), (e) and (f) of Count I(A)-Strict Liability as allegations

not recognized under Florida law; and (3) ORDERS plaintiffs to

file and serve Amended Complaints drafted in compliance with this

order and Rules 8(a) and 10(b) of the Federal Rules of Civil

Procedure within thirty (30) days from the date that this order

is entered. The court especially emphasizes that the amended

complaints shall be a short and plain statement of the claim(s),

and shall be simple, concise and direct. Bayer shall have twenty

(20) days thereafter to file and serve its Answer or other

responsive pleading.

DATED at Seattle, Washington this 29th day of August, 2005.

ABARBARA JACOBS ROTHSTEIN

UNITED STATES DISTRICT COURT

JUDGE

EXHIBIT A

Lindsay v. Bayer Corporation, et al., 5-cv-1031

Conner v. Bayer Corporation, et al., 5-cv-76

Grace v. Bayer Corporation, et al., 5-cv-72

Hatcher v. Bayer Corporation, et al., 5-cv-165

Hoover v. Bayer Corporation, et al., 5-cv-712

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ORDER

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Moment v. Bayer Corporation, et al., 5-cv-299

Smith v. Bayer Corporation, et al., 5-cv-74

Stepan v. Bayer Corporation, et al., 5-cv-156

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