In re Valsartan, Losartan & Irbesartan Multi-District Litig.

1

In re Valsartan, Losartan and Irbesartan Multi-District Litigation This document applies to all actions

No. 19-md-2875 (RBK/SAK)

United States District Court, D. New Jersey, Camden Vicinage

March 26, 2024

OPINION ON TPP TRIAL SUMMARY JUDGMENT MOTIONS

Honorable Robert B. Kugler, United States District Judge.

Before the Court are several related and intertwined summary judgment [“SJ”] motions under Fed. R. Civ Proc. [or “Rule”] 56(a) in this Multi-District Litigation [“MDL”]. These motions concern only the Valsartan portion of the MDL and precede an upcoming bellwether trial in the MDL [“the TPP trial”] among certain of the MDL parties on some of the counts in Plaintiffs' Third Amended Consolidated Economic Loss Class Action Complaint against All Defendants. Doc. No. 1708.

The parties to the TPP trial include from plaintiff's side MSP Recovery Claims, Series, LLC [“MSP”]^[1] as class representative of numerous Third-Party Payors [“TPPs”], and from defendants' side: three defendants in the MDL: the Zhejiang group listed below, referred to herein as “ZHP”,^[2] the Teva group,^[3] referred to herein as “Teva”, and the Torrent group, referred to herein as “Torrent”.^[4] These three groups are collectively referred to herein as “defendants”. As a class representative, MSP may be variously referred to herein as plaintiffs or TPPs. These SJ motions aim to reduce the claims to be presented to the fact-finder at the TPP trial.

This Opinion resolves the following Summary Judgment Motions which Tables 1 and 2 detail:

- Doc. No. 2569^[5]: Ps SJ Mot. against all Ds for Breach of Express and Implied Warranty and Violations of State Consumer Protection Laws and against ZHP for Fraud;

- Doc. No. 2559: Ps SJ Mot. against Torrent for Fraud;

- Doc. No.2562: Ds Omnibus SJ Mot against Ps for Not Proving Breach of Express or Implied Warranty, Violation of State Consumer Protection Laws, and Fraud);

- Doc. No.2564: ZHPs SJ Mot. against Ps for Not Proving Fraud or VCDs were Adulterated;

- Doc. No.2565: Tevas SJ Mot. against Ps for not Proving Fraud or VCDs were Adulterated; Ps have not shown Punitive Damages);

- Doc. No.2570: Torrents SJ Mot. against Ps for not Proving Fraud or VCDs were Adulterated; Ps have not shown Punitive Damages).

Table 1 summarizes plaintiffs' SJ briefs for the TPP Trial, the claims at issue, supporting submissions, defendants' oppositions, and plaintiffs' replies. Table 2 summarizes defendants' SJ briefs and submissions relating to Ds SJ Motions. As the parties' SJ motions seek opposing rulings on the same claims and issues of law, this opinion resolves all TPP Trial SJ motions.

Table 1. Plaintiffs' Summary Judgment Briefs, Defendants' Oppositions, and Ps Replies^[6]

Plaintiffs as Movant

SJ Brief

Doc No.

Against

whichh Ds

Claims

Supporting

Doc Nos.

Ds Oppositions

Ps

Replies

2569-1:

Ps SJ Brf-Omni

Teva,

Torrent,

ZHP

-Breach of Express &

Implied Warranty;

-Consumer Prot. Laws;

-Violation of cGMPs in

making nitrosaminecontaminated

API and

FD VCDs,

-Which rendered the

VCDs adulterated;

Punitive Damages

2569-3:

Ps SOMF-all Ds

2603: Ds Opp Brf

2571: D Opp SOMF

2618:

Ps

Rep Brf

NO individual

brief filed

Teva

Ps rely on Common Law

Fraud claim in 3rd

Amended Complaint

2566:

Ps SOMF-Teva

2602:

Teva Opp SOMF

2569-2:

Ps SJ Brf-ZHP

ZHP

Common Law Fraud

2569-3:

Ps SOMF-all Ds

2604: ZHP Opp Brf;

2607: ZHP Opp SOMF

2559-1:

Ps SJ Brf-TRT

Torrent

Common Law Fraud

2560:

Ps SOMF-TRT

2596:Torrent Opp Brf;

2597:Torrent OppSOMF

Table 2. Defendants' Summary Judgment Briefs, Plaintiffs' Oppositions, and Ds Replies

Defendants as Movant

SJ Brief Doc

No.

Movant

Claims

Breach, Express Warranty;

Breach, Implied Warranty;

Common Law Fraud;

State Con. Protection Laws;

Ds argue:

- breach of warranty unproven;

- Ps cannot prove Ds proximately

caused TPPs economic injury;

- there is a lack of cognizable injury;

- therefore Ps cannot prove fraud or

warranty damages;

-Ps cannot prove scienter, therefore

-Ps cannot prove punitive damages

Supporting

Doc Nos.

Ps Oppositions

Ds Replies

2562-1:

Omni SJ Brf

All Ds

No Liability over ZHP China and

Huahai:

As neither entity sold VCD pills in

the US, they can bear no liability;

2606:

Ps Opp Omni Brf

2606-2:

Ps Opp SOMF

2616:

Omni Rep Brf

2607:

ZHP Opp

SOMF to Ps Opp

SOMF

2564-1:

SJ Brf

ZHP

Common Law Fraud Argument:

- ZHP VCDs were not adulterated;

-Ps cannot prove Fraud;

-Ps cannot show scienter, therefore

-Ps cannot prove punitive damages

2606-1:

Ps Opp ZHP Brf

2606-2:

Ps Opp SOMF

2607:

ZHP Reply

SOMF to

Ps Opp

SOMF

2565-1:

SJ Brf

Teva

Common Law Fraud Argument:

-Teva VCDs were not adulterated;

-P cannot show scienter, therefore

-Ps cannot prove punitive damages

2602:

Teva SOMF

2599:

Ps Opp Teva Brf

2600:

Ps Supp SOMFTeva

2619:

Teva Opp to

Ps Supp

SOMF

2570-1:

SJ Brf

Torrent

Common Law Fraud Argument:

- Torrent VCDs were not

adulterated; and

-Ps cannot show scienter,^[7] therefore -Ps cannot prove punitive damages.

2595:

Ps Opp Torrent

Brf

The COURT HAVING REVIEWED the parties' submissions without a hearing in accord with Rule 78.1 (b), for the reasons discussed below, and for good cause shown, 1) On the claim of breach of implied warranty, the Court GRANTS: defendants' Omnibus summary motion for judgment (Doc. No. 2562).

2) On the issue whether defendants' affirmations, statements labelling of their VCDs constitute express warranties that their VCDs were the equivalent to the Orange Book formulation, the Court GRANTS:

plaintiffs' Omnibus motion for summary judgment (Doc. 2569); and DENIES:

defendants' Omnibus motion for summary judgment (Doc. 2562).

3) On the issue whether the VCDs sold before the recalls began in July 2018 were adulterated, the Court DENIES:

plaintiffs' Omnibus motion for summary judgment (Doc. No. 2569);

defendants' Omnibus summary motion for judgment (Doc. No. 2562);

ZHP's, Teva's, and Torrent's individual motions for summary judgment (Docs. No. 2564, 2565, and 2570, respectively).

4) On the issue whether defendants violated cGMPs and compendial standards in making nitrosamine-contaminated API and FD VCDs and in marketing and selling them before the recalls began in July 2018, the Court DENIES:

plaintiffs' Omnibus motion for summary judgment (Doc. No. 2569); and

defendants' Omnibus motion for summary judgment (Doc. No. 2562).

5) On the issue whether defendants breached express warranties to plaintiffs in TPL Express Warranty Subclass b, the Court DENIES:

plaintiffs' Omnibus motion for summary judgment (Doc. No. 2569); and

defendants' Omnibus motion for summary judgment (Doc. No. 2562).

6) On the issue whether plaintiffs gave defendants pre-suit notice of the breach of express warranty claim, the Court DENIES:

defendants' Omnibus motion for summary judgment (Doc. No. 2562); and GRANTS:

plaintiffs' Omnibus motion for summary judgment (Doc. No. 2569).

7) On the issue whether the statute of limitations limits the filing of breach of express warranty claims in some jurisdictions in TPP Express Warranty Subclass b, the Court DENIES:

Ds Omnibus motion for summary judgment (Doc. No. 2562): and GRANTS:

Ps motion for summary judgment (Doc. 2569).

8) On the issue whether tolling of the statute of limitations for the express warranty claim may be justified in some or all jurisdictions in the TPP Express Warranty Subclass b, the Court DENIES:

plaintiff's Omnibus motion for summary judgment (Doc. No. 2569); and

defendants Omnibus motion for summary judgment (Doc. No. 2562).

9) On the issue whether plaintiffs relied on defendants' express warranties, the Court DENIES:

plaintiff's Omnibus motion for summary judgment (Doc. No. 2569); and

defendants Omnibus motion for summary judgment (Doc. No. 2562).

10) On the issue of violation of Consumer Protection Statutes, the Court DENIES:

plaintiffs' Omnibus motion for summary judgment (Doc. No. 2569);

defendants' Omnibus motion (Doc. 2562); and

Teva's motion for summary judgment (Doc. No. 2565),

EXCEPT the Court GRANTS:

defendants' Omnibus motion (Doc. 2562) and Teva's motion (Doc. No. 2565) for these claims in Missouri.

11) On the issue of fraud, the Court DENIES:

plaintiffs' motion for summary judgment against ZHP (Doc. No. 2569); and

plaintiffs' motion for summary judgment against Torrent (Doc. No. 2559).

defendants' Omnibus motion for summary judgment (Doc. No. 2562); defendant ZHP's motion for summary judgment (Doc. No. 2564);

defendant Teva's motion for summary judgment (Doc. No. 2565); and

defendant Torrent's motion for summary judgment (Doc. No. 2570).

12) On the damages issue whether plaintiffs have no cognizable injury, the Court DENIES:

defendants' Omnibus motion for summary judgment (Doc. No. 2562).

13) On the damages issue whether plaintiffs' model of damages cannot establish damages on a class-wide basis, the Court DENIES:

defendants' Omnibus motion for summary judgment (Doc. No. 2562).

14) On the damages issue whether plaintiffs cannot prove that defendants' alleged conduct and/or misrepresentations proximately caused plaintiffs any injury, the Court DENIES:

defendants' Omnibus motion for summary judgment (Doc. No. 2562).

15) On the damages issue whether plaintiffs cannot prove fraud and breach of warranty damages, the Court DENIES:

defendants' Omnibus motion for summary judgment (Doc. No. 2562).

16) On the damages issue whether plaintiffs cannot prove punitive damages, the Court DENIES:

defendants' Omnibus motion for summary judgment (Doc. No. 2562),

EXCEPT

the Court GRANTS:

defendant's Omnibus summary judgment motion (Doc. No. 2562) on the issue that plaintiffs cannot prove punitive damages in Nebraska and New Hampshire, for breach of express warranty and for violation of...