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Allen v. Vintage Pharmaceuticals LLC

United States District Court, M.D. Georgia, Macon Division

February 11, 2019

PATRICIA FAYE ALLEN, Individually and as the Administrator of the Estate of Tracy Faye Edge, Plaintiff,



         There are five motions presently pending in this case: Defendants' Motions to Dismiss [Docs. 4, 13]; Defendant Rhodes Pharmaceuticals' (“Rhodes”) Motion Seeking Judicial Notice [Doc. 5]; Rhodes's Motion to Strike Plaintiff's Amended Complaint [Doc. 17]; and Plaintiff's Motion to Amend her Complaint [Doc. 19]. As discussed below, Rhodes's Motion to Dismiss, Motion Seeking Judicial Notice, and Motion to Strike are GRANTED; Defendant Vintage Pharmaceuticals, LLC d/b/a Par Pharmaceutical's (“Par”) Motion to Dismiss is GRANTED; and Plaintiff's Motion to Amend is DENIED as futile.


         On April 20, 2016, Plaintiff's daughter, Tracy Faye Edge, died from “Morphine and Amitriptyline toxicity” and “opioid toxicity” after being prescribed the two medications less than one month apart. [Doc. 19-1, ¶¶ 4, 8-10, 41, 56]. According to Plaintiff, Rhodes, who manufactured the morphine prescribed to Ms. Edge, and Par, who was a manufacturer of amitriptyline, knew or should have known of the danger posed by combining the two drugs but “failed to exercise ordinary care” and “issued no warnings regarding the toxicity.” [Id. at ¶¶ 2, 5, 21-23]. Plaintiff also alleges that both Defendants “knew or should have known . . . that Plaintiff should have never been prescribed, dispensed, marketed or sold the prescription drugs that caused Plaintiff's death.” [Id. at ¶ 33]. Moreover, Plaintiff claims that “opioid manufacturers such as Rhodes and [Par] market and claim in literature that opioids are safer than a Tylenol” and “encourage doctors to write prescriptions for opioids . . . [by] touting [them] as safe, and non-habit forming, ” even though such marketing is “false, misleading and causes harm, ” including the harm that befell Ms. Edge. [Id. at ¶¶ 59-62]. According to Plaintiff, Defendants had a duty to market “dangerous drugs” (presumably including morphine and amitriptyline) as “dangerous drugs of last resort.” [Id. at ¶ 67]. In addition to marketing to doctors, Plaintiff claims that Defendants deliberately marketed to Ms. Edge by mail. [Id. at ¶ 17].

         With regard to Rhodes in particular, Plaintiff claims it knew or should have known “of the danger of opioid toxicity” and “that any opioid drugs prescribed to any patient . . . could prove fatal” but “continued to market and encourage doctors to prescribe opioids such as [m]orphine” anyway. [Id. at ¶¶ 24, 25]. Plaintiff also charges Par with failing to warn Ms. Edge[2] of the adverse effects associated with combining morphine and amitriptyline, even though it had a duty to issue such a warning under the Omnibus Budget Reconciliation Act of 1990. [Id. at ¶¶ 26, 27]. Plaintiff conclusorily and repeatedly alleges that these acts and omissions were the proximate cause of Ms. Edge's death and Plaintiff's injuries. [Id. at ¶¶ 35, 36, 40-42, 44, 47-49, 62, 64, 71].


         Plaintiff filed her original complaint on September 10, 2018. [Doc. 1]. Rhodes filed its motion to dismiss on November 9, 2018 [Doc. 4], and Par filed its motion to dismiss on November 30, 2018 [Doc. 13]. On December 3, 2018-24 days after Rhodes filed its motion to dismiss and three days after Par filed its motion to dismiss-Plaintiff filed an amended complaint [Doc. 16], which Rhodes moves to strike as untimely [Doc. 17]. Fourteen days later (and likely in response to Rhodes's motion to strike), Plaintiff moved to amend her complaint and attached a proposed amended complaint identical to her previously-filed amended complaint. [Doc. 19].

         As discussed herein, Rhodes' motion to strike is granted, as is its motion to dismiss. Par's motion to dismiss is likewise granted. Plaintiff's motion to amend is denied as futile.


         A. Standard of Review

         When ruling on a 12(b)(6) motion, the Court must accept the facts set forth in the complaint as true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572 (2007). A complaint survives a motion to dismiss only if the plaintiff alleges sufficient factual matter to state a claim for relief that is plausible on its face, and he must state more than “unadorned, the-defendant-unlawfully-harmed-me accusations.” McCullough v. Finley, 907 F.3d 1324, 1333 (11th Cir. 2018) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)). He must also “plead more than labels and conclusions or a formulaic recitation of the elements of a cause of action, ” id., such that the factual allegations contained in the complaint are “enough to raise a right to relief above the speculative level, ” Twombly, 550 U.S. at 555.

         When assessing a motion to dismiss for failure to state a claim, the Court employs a two-step framework. McCullough, 907 F.3d at 1333. First, the Court identifies and disregards allegations that are “no more than mere conclusions, ” since “[c]onclusory allegations are not entitled to the assumption of truth.” Id. (quoting Iqbal, 556 U.S. at 679). Second, the Court “assume[s] any remaining factual allegations are true and determine[s] whether those factual allegations ‘plausibly give rise to an entitlement to relief.'” Id. (quoting Iqbal, 556 U.S. at 679).

         Under Federal Rule of Civil Procedure 15(a)(2), the Court should freely grant leave to amend when justice so requires. However, the Court may deny leave to amend “(1) where there has been undue delay, bad faith, dilatory motive, or repeated failure to cure deficiencies by amendments previously allowed; (2) where allowing amendment would cause undue prejudice to the opposing party; or (3) where amendment would be futile.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). An amendment is futile, for example, “when the complaint as amended is . . . subject to dismissal because . . . it fails to state a claim for relief.” Chang v. JPMorgan Chase Bank, N.A., 845 F.3d 1087, 1094 (11th Cir. 2017) (quoting Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262-63 (11th Cir. 2004)).

         B. Rhodes's Motion to Strike Plaintiff's ...

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