Judge: Teresa A. Beaudet, Case: 22STCV24209, Date: 2024-02-23 Tentative Ruling

Case Number: 22STCV24209    Hearing Date: February 23, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Victoria Trevisan (“Plaintiff”) filed this action on July 27, 2022 against

Defendants Merck & Co., Inc., Merck Sharp & Dohme Corp., Providence Health System – Southern California, Providence Medical Institute, Providence Medical Associates, Inc., and Tristy Shaw, M.D. The original Complaint alleged causes of action for (1) negligence, (2) strict liability (failure to warn), (3) strict liability (manufacturing defect), (4) breach of warranty,

(5) fraudulent concealment, (6) fraudulent misrepresentation, (7) violation of California’s Unfair Competition Law, (8) medical malpractice, (9) battery, and (10) breach of fiduciary duty.

Merck & Co., Inc. and Merck Sharp & Dohme LLC (formerly Merck Sharp & Dohme

Corp.) (jointly, the “Merck Defendants”) demurred to the third, fifth, and sixth causes of action of the Complaint. The Merck Defendants also moved to strike portions of the Complaint. On April 14, 2023, the Court issued an Order providing, inter alia, that “[t]he Merck Defendants’ demurrer to the third cause of action is sustained, with leave to amend. The Merck Defendants’ demurrer to the fifth and sixth causes of action is overruled. The Merck Defendants’ motion to strike is granted as to paragraphs 362, 382, 383, 405, 406, 433, 434, 448, 449, 476, and 477 of the Complaint, and paragraph F of the Prayer for Relief, with leave to amend. The Merck Defendants’ motion to strike is otherwise denied.” (April 14, 2023 Order at p. 32:23-27.)

On May 4, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”), alleging causes of action for (1) negligence, (2) strict liability (failure to warn) (3) breach of warranty, (4) fraudulent concealment, (5) fraudulent misrepresentation, (6) violation of California’s Unfair Competition Law, and (7) breach of fiduciary duty.

In the FAC, Plaintiff alleges that “[t]his common-law products liability, negligence, strict liability, breach of warranty, fraud, and breach of fiduciary duty case arises out of serious and debilitating injuries, including autoimmune injuries and resulting sequalae that plaintiff, Victoria Trevisan, sustained as a result of receiving multiple injections of the Gardasil vaccine, which was manufactured, labeled, and promoted by defendants Merck & Co., Inc., and Merck, Sharp and Dohme Corporation…and prescribed and administered by medical provider defendant, Tristy Shaw, M.D. at a Providence Medical Institute medical office…” (FAC, ¶ 1.)

The Merck Defendants now move to strike portions of the FAC. The motion is unopposed.

Discussion

A court may strike any “irrelevant, false, or improper matter inserted in any pleading” or all or any part of a pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” ((Code Civ. Proc., § 436.) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” ((Id., § 437.)

The Court’s April 14, 2023 Order on the Merck Defendants’ previous motion to strike portions of Plaintiff’s original Complaint provides, inter alia, that “the Court grants the Merck Defendants’ motion to strike Plaintiff’s punitive damages allegations. Specifically, the Court grants the Merck Defendants’ motion to strike paragraphs 362, 382, 383, 405, 406, 433, 434, 448, 449, 476, and 477 of the Complaint, and paragraph F of the Prayer for Relief.” (April 14, 2023 Order at p. 29:23-26.) In the April 14, 2023 Order, the Court noted that:

“The Merck Defendants assert that Plaintiff fails to allege that any Merck officer, director, or managing agent committed any purportedly oppressive, fraudulent, or malicious act, and that Plaintiff does not plead that any manager had ‘advance knowledge’ and ratified the alleged conduct at issue.

Plaintiff asserts that she has adequately alleged ratification. Plaintiff points to paragraph 14 of the Complaint, which alleges that ‘[a]t all times herein mentioned, defendants were fully informed of the actions of their agents and employees, and thereafter no officer, director or managing agent of defendants repudiated those actions, which failure to repudiate constituted adoption and approval of said actions, and all defendants and each of them thereby ratified those actions.’ (Compl., ¶ 14.) The Merck Defendants assert that ‘not repudiating’ conduct does not mean a manager authorized it and does not mean that any manager was aware of it. The Merck Defendants note that ‘[a] company ratifies a managing agent’s decision when it knows about and accepts the decision.’ (Tilkey v. Allstate Ins. Co. (2020) 56 Cal.App.5th 521, 554.) The Merck Defendants also note that this allegation does not identify any officer, director or managing agent who supposedly ‘fail[ed] to repudiate’ the conduct.  

Plaintiff also asserts that paragraph 14 of the Complaint is alleged ‘in conjunction with pages of allegations concerning high-level corporate conduct, conduct that would not be possible without officer, director, or managing agent performance or ratification.’ (Opp’n at p. 9:1-3.) But the Court agrees with the Merck Defendants that Plaintiff does not specifically allege that ‘the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice’ was ‘on the part of an officer, director, or managing agent of the corporation.’ (Civil Code section 3294, subdivision (b).)” (April 14, 2023 Order at pp. 29:1-22.)

            In the instant motion, the Merck Defendants move to strike punitive damages allegations in the FAC. Plaintiff seeks punitive damages in connection with the first cause of action for negligence, the second cause of action for strict liability (failure to warn), the third cause of action for breach of express warranty, the fourth cause of action for fraudulent concealment, and the fifth cause of action for fraudulent misrepresentation. (FAC, ¶¶ 382, 383, 405, 406, 418, 419, 433, 434, 461, 462.) In the Prayer for Relief, Plaintiff alleges that she seeks “exemplary and punitive damages against Merck.” (FAC, p. 79:20.) In addition, in the “General Allegations” section of the FAC, Plaintiff alleges that “[m]oreover, by engaging in conduct that Merck knew was unsafe and likely to injure patients, and by placing Gardasil’s profits ahead of patient safety, Merck has engaged in the same fraudulent, malicious and oppressive conduct it engaged in with respect to Vioxx. Plaintiff, therefore, requests that exemplary damages be assessed against Merck, so as to, once again, attempt to deter Merck and other would-be defendants from engaging in similar reprehensible conduct.” (FAC, ¶ 362.)

            In the instant motion, the Merck Defendants state that they “bring[] this second Motion to Strike because Plaintiff’s Amended Complaint still does not specify how any of the conduct alleged in the Amended Complaint was supposedly ratified; still does not state where or when such ratification occurred; and still does not identify any employees whose actions were allegedly sanctioned by the corporation’s decision-makers.” (Mot. at p. 1:16-19.) As the Merck Defendants note, the FAC now alleges as follows:

“At all times herein mentioned, defendants were fully informed of the actions of their agents and employees, and thereafter no officer, director or managing agent of defendants repudiated those actions, which failure to repudiate constituted adoption and approval of said actions, and all defendants and each of them thereby ratified those actions. See Harman v. Shell Oil Co., 68 Cal.App.3d 240, 250 (1977). Moreover, at all times herein mentioned, the advance knowledge and conscious disregard, authorization, ratification or acts or oppression alleged herein were done on the part of Merck officers, directors and/or managing agents, including, but not limited to, Eliav Barr (currently Head, Global Clinical Development and Chief Medical Officer, Merck Research Laboratories as well as Senior Vice President Global Medical and Scientific Affairs), Christine Velicer (currently Senior Global Director of Medical and Scientific Affairs), and Alison Fisher (currently Director Worldwide Regulatory Affairs, Vaccines at Merck).” (FAC, ¶ 14.)

            Civil Code section 3294, subdivision (a) provides that “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”  Civil Code section 3294, subdivision (b) provides as follows:

“An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”

            The Merck Defendants cite to Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 167-168, where the Court of Appeal found that “Civil Code section 3294, subdivision (b)…sets forth the circumstances under which an employer may be held liable for punitive damages based upon acts of an employee. They include the employer’s (1) advance knowledge of the employee’s unfitness; (2) authorization or ratification of the wrongful conduct; and (3) personal culpability. Moreover, a corporate employer may be liable only if the knowledge, authorization, ratification or act was on the part of an officer, director or managing agent of the corporation. Petitioners claim they satisfied the foregoing requirement by alleging Hospital was negligent and careless in the hiring of the other defendants; undertook to carry out the care and treatment of Cheryl; and allowed the tubal ligation to be performed without confirming the baby had no abnormalities. However, we fail to see how any of those allegations sets forth facts to show Hospital’s advance knowledge, authorization or ratification.” (Internal citation omitted.)

            The Merck Defendants assert that “Plaintiff here has done no more to plead corporate ratification than in Grieves, and her punitive damages allegations should be stricken for the same reason. The Amended Complaint is silent as to any action taken by any named individual to bless the supposedly malicious or fraudulent conduct alleged in the Amended Complaint.” (Mot. at pp. 3:28-4:3.) As set forth above, Plaintiff did not file an opposition to the instant motion. Plaintiff thus does not dispute this point.

The Court agrees with the Merck Defendants that Plaintiff has not alleged specific facts demonstrating how any of the conduct alleged in the FAC was supposedly ratified on the part of the officers, directors and/or managing agents referenced in paragraph 14 of the FAC. Accordingly, the Court grants the Merck Defendants’ motion to strike. The Court grants the motion without leave to amend because the Court previously granted the Merck Defendants’ motion to strike punitive damages allegations in the original Complaint on similar grounds (See April 14, 2023 Order). Moreover, Plaintiff does not oppose the instant motion and thus has not proffered any basis for any amendment to cure the foregoing deficiencies. ¿¿¿ 

Conclusion

Based on the foregoing, the Court grants the Merck Defendants’ motion to strike paragraphs 362, 382, 383, 405, 406, 418, 419, 433, 434, 461, and 462 of the FAC, and paragraph F of the Prayer for Relief of the FAC, without leave to amend.

The Court orders the Merck Defendants to file and serve an answer to the FAC within 10 days of the date of this Order.¿¿ 

The Merck Defendants are ordered to give notice of this Order. 

DATED:  February 23, 2024                          ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court