United States District Court, M.D. Georgia, Macon Division
PATRICIA FAYE ALLEN, Individually and as the Administrator of the Estate of Tracy Faye Edge, Plaintiff,
VINTAGE PHARMACEUTICALS LLC d/b/a PAR PHARMACEUTICAL; ENDO HEALTH SOLUTIONS, INC.; and RHODES PHARMACEUTICALS LP, Defendants.
ORDER GRANTING MOTIONS TO DISMISS AND DENYING MOTION
E. SELF, III, JUDGE
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.
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
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 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].
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].
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
Standard of Review
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,
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.
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).
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)).
Rhodes's Motion to Strike Plaintiff's ...