In a case brought under the Missouri Merchandising Practices Act, plaintiff alleged the prescription diabetes medication Avandia increased risk of heart-related diseases, heart attacks, and death, and did not work as well as other diabetes medications with lower risks. Plaintiff claimed the drug’s manufacturer concealed these risks and that she suffered an “ascertainable loss.” Plaintiff sought damages measured by the difference between Avandia’s actual value and the value of the drug as represented by the manufacturer.
On a motion to dismiss, the trial court rejected the plaintiff’s theory of injury and damages, determining that the plaintiff, “received all the benefits of taking Avandia without suffering any harm and thereby sustained no ascertainable loss.” See In re Avandia Marketing Sales Practices and Products Liability Litigation, --- Fed.Appx. ----, 2016 WL 559216 (2016), *1. The trial court dismissed the complaint with prejudice, finding that amendment would be futile.
The Third Circuit affirmed, finding plaintiff, “received the drug she was prescribed, the drug did the job it was meant to do (i.e., controlled her blood sugar levels), and it caused no apparent physical injuries. Under such circumstances, there could be no ascertainable loss.” *3.