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Rosenstern v. Allergan, Inc.

United States District Court, N.D. Illinois, Eastern Division

October 25, 2013

KLAUS ROSENSTERN, individually and as Executor of the Estate of JANET ROSENSTERN, Plaintiff,

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For Klaus Rosenstern, individually estate of Janet Rosenstern, Plaintiff: James A. Karamanis, Barney & Karamanis, LLP, Chicago, IL.

For Allergan, Inc., Allergan USA, Inc., Defendants: Stephen J. O'Neil, LEAD ATTORNEY, Molly K. McGinley, Nicholas William Marietti, Noah I. Eisner, K& L Gates LLP, Chicago, IL; Brendan Mathieu Ford, Caitlin Comstock Blanche, Ellen Lynn Darling, PRO HAC VICE, K& l Gates Llp, Irvine, CA.


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Memorandum Opinion and Order

Honorable Thomas M. Durkin, United States District Judge.

Klaus Rosenstern (" Plaintiff" ), individually and as Executor of the Estate of Janet Rosenstern, deceased (" Rosenstern" ), brings this action against Allergan, Inc. and Allergan USA, Inc. (" Allergan" ), manufacturers of the prescription drug Botox, alleging that Allergan caused Rosenstern's death by failing to warn of Botox's risks and negligently designing and marketing Botox, among other alleged violations of state law. R. 1-1. Plaintiff originally filed his complaint in the Circuit Court of Cook County, after which Allergan removed the case to this Court. R. 1. Allergan has moved to dismiss all counts pursuant to Federal Rule of Civil Procedure 12(b)(6). R. 11. For the following reasons, Allergan's motion is granted as to Counts VI, VIII and IX, and denied as to Counts I, II, III, IV, V and VII.


The following facts, taken from the complaint, are accepted as true, and all reasonable inferences are drawn in Plaintiff's favor. Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013).

Botox is Allergan's name for Botulinum Type A, a potent neurotoxin. The federal Food and Drug Administration (" FDA" ) has approved certain therapies that involve injecting Botox into localized muscle areas to paralyze the muscle. R. 1-1 ¶ ¶ 13-14. One risk of Botox, however, is that it " can migrate outside the injected muscles and cause side effects including botulism and severe autoimmune reactions with resulting brain damage." Id. ¶ 14.

Plaintiff alleges that Allergan touted Botox as a " miracle drug" and " sponsored . . . conferences for doctors [at which Allergan] represent[ed] that Botox is 'well-tolerated,' 'safe,' and 'effective.'" Id. ¶ 15. Allergan " heavily promote[d] Botox for a wide variety of off-label uses including [Temporomandibular Joint Syndrome (" TMJ" )]." Id. ¶ 16. Allergan created and funded several organizations to distribute electronic and printed promotional materials and to educate doctors about off-label uses for Botox. Id. ¶ 17. Allergan " specifically trained" its sales representatives to " refer doctors" to this promotional material and " encourage[d] off-label use by teaching injecting physicians and their staff how to get reimbursed for these non-approved uses by third-party payers." Id. According to Plaintiff, Allergan knew that this information was false, and Allergan distributed it with the intent of inducing physicians to prescribe Botox to treat off-label conditions. Id. ¶ ¶ 55-56. Allergan recently pled guilty to off-label promotion in violation of the federal Food, Drug and Cosmetic Act, resulting in civil and criminal penalties. Id. ¶ 17.

Rosenstern's physicians recommended Botox treatment for her TMJ disorder. Id. ¶ 20. On May 25, 2011, Rosenstern

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received 75 units of Botox. Id. ¶ ¶ 3, 20. Rosenstern and her physicians decided to treat her TMJ with Botox in reliance on Allergan's representations that this was an appropriate use of Botox. Id. ¶ 57.

Plaintiff alleges that as " a consequence of Rosenstern's Botox treatment, she suffered from severe debilitating pain in her back and neck, muscle weakness, increased anxiety, depression and migraines." Id. ¶ ¶ 20, 22. The Botox also exacerbated Rosenstern's preexisting anxiety and depression. Id. ¶ 23. " Her condition eventually progressed into severe acute immune reaction, resulting in a[n] . . . injury to her brain, resulting in death" on April 23, 2013. Id. ¶ ¶ 21, 25. According to Allergan, the Sarasota, Florida Medical Examiner determined that Rosenstern's cause of death was suicide, R. 12 at 5, but Plaintiff alleges that Rosenstern's suicide was precipitated by her " Botox poisoning." R. 20 at 6.

The complaint includes nine substantive counts. [1] In Count I, Plaintiff alleges that " Allergan failed to warn Janet Rosenstern and others" and " her health care providers" that Botox could cause the harm Rosenstern suffered. R. 1-1 ¶ ¶ 27, 29. In Count II, Plaintiff alleges that the " Botox given to Janet Rosenstern contained a defect in its manufacture," id. ¶ 33, and that this defect caused Rosenstern's injuries. Id. ¶ 36. And in Count III, Plaintiff alleges that " Allergan was negligent in designing and marketing Botox," causing Rosenstern's injuries. Id. ¶ 38.

In Counts IV and V, Plaintiff alleges that Allergan breached implied and express warranties that Botox could safely be used to treat TMJ. Id. ¶ ¶ 16-17, 42, 49.

Count VI is captioned as a claim for " negligent misrepresentation." Id. at 13. Plaintiff alleges that Allergan made " false representations . . . to Janet Rosenstern, her health care providers, and the general public, . . . that Botox was safe, fit, and effective for human consumption." Id. ¶ 52. Plaintiff alleges that Allergan " willfully deceived Janet Rosenstern, her health care providers, and the general public as to the health risks and consequences of the use of Botox." Id. ¶ 53.

Count VII is a wrongful death claim brought by Plaintiff in his individual capacity. And in Count VIII, Plaintiff seeks to recover " certain sums of money for the funeral costs of the Decedent," in a " survival action." Id. ¶ 68.

Plaintiff has disavowed his claim for punitive damages in Count IX, R. 20 at 15, and, thus it ...

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