Judge: Nathan R. Scott, Case: Carrillo v. Merck & Co., Date: 2022-10-14 Tentative Ruling

Defendants Merck & Co. Inc. and Merck Sharp & Dohme Corp.’s demurrer is overruled as to the 5th cause of action and sustained as to 6th cause of action without leave to amend.  (See Code Civ. Proc. § 430.10, subd. (e).)

Defendants shall file and serve their answers, if at all, within 10 days.

5^th cause of action, concealment. The TAC states facts sufficient to constitute this cause of action.  (See Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634 [elements].)

Plaintiff’s previous efforts to state a fraud cause of action were hampered by a lack of specificity.  (See 12/30/21 & 5/20/22 orders.)  The SAC also did not adequately allege that plaintiff’s physician would not recommended Gardasil had he known the concealed facts.  (See 5/20/22 order.)

The TAC now states facts sufficient to show concealment and the physician’s reliance.  (See TAC ¶¶ 104-127, 128-134, 162-240, 241-259, 260-281, 282-295, 440, 445, 447, & 448.) 

The court sees no reason why plaintiff needs to allege the physician has or will confirm his reliance.  California state courts do not follow the Iqbal/Twombly heightened pleading requirements that governed Dorsett v. Sandoz, Inc. (C.D. Cal. 2010) 2010 WL 11512276.

6^th cause of action, fraud.  Plaintiff concedes the TAC fails to state this inadvertently included cause of action.  (See Pl. 9/16/22 Opp. at p. 1, fn. 1.)

Defendants shall give notice.