Caughron v. Upsher-Smith Pharmaceuticals Inc et al

Filing 34

ORDER partly granting and partly denying Motions 5 and 27 . Any amended complaint due by 8/1/2017. And it would be most helpful if Caughron would plead about Upsher-Smith and Taro individually, rather than saying "defendants" did X, Y, or Z. Signed by Judge D. P. Marshall Jr. on 7/5/2017. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
VIRGINIA CAUGHRON, Individually
and as Administratix of the Estate of
Jerry Lee Caughron, Deceased

v.

PLAINTIFF

No. 3:17-cv-21-DPM

UPSHER-SMITH LABORATORIES,
INC. and TARO PHARMACEUTICALS
USA, INC.

DEFENDANTS

ORDER
1. Caughron' s husband died after taking generic amiodarone for about

a year.

Caughron has sued Upsher-Smith and Taro, the drug's

manufacturers, making various claims. The drug companies move to dismiss.
In response, Caughron has abandoned her claims about the contents of the
drug's warning and about the drug's design. These claims are dismissed
without prejudice.
2. U psher-Smi th and Taro are correct that Caughron hasn't adequately

pleaded her fraud claim. There's insufficient specificity. FED. R. CIV. P. 9(b).
Caughron hasn't said enough about who, what, when, where, and how.

United States ex rel. Joshi v. St. Luke's Hospital, Inc., 441 F.3d 552, 556 (8th Cir.

2006). This claim is dismissed without prejudice, with leave to amend,
though the Court is skeptical.
With one exception, the Court is unpersuaded by most of Upsher-Smith
and Taro's other pleading-based arguments.

All the other claims are

plausible, though they' re a bit general and they lump the defendants together.
The exception is Caughron' s off-label promotion claim, which the Court
addresses below.
3. The drug companies are mostly correct on the warnings actually
given, but one of Caughron' s claims survives. Any claim based on failure to
provide the medication guide to Mr. Caughron is preempted. 21 C.F.R.
§ 208.24(b) & (c). Under Arkansas law, Upsher-Smith and Taro's only duty

was to warn Mr. Caughron's doctor. So the core issue is whether that
happened. Caughron pleads that it didn't; the drug companies say it did.
Discovery will show if a trial is needed to answer that question. The Court's

best Erie-educated prediction is that the Arkansas Supreme Court would
follow West, maintaining its rejection of any exception to the learned
intermediary doctrine in these circumstances. West v. Searle & Company, 305

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Ark. 33, 42-43, 806 S.W.2d 608, 613-14 (1991);

compare Hill v. Searle

Laboratories, 884 F.2d 1064, 1070 (8th Cir. 1989).

4.

Courts have divided about Buckman preemption of off-label

promotion claims. Buckman Company v. Plaintiffs' Legal Committee, 531 U.S.
341, 353 (2001); compare, e.g., Marvin v. Zydus Pharmaceuticals (USA) Inc., 203
F. Supp. 3d 985, 987-89 (W.D. Wis. 2016), with, e.g., Perdue v. Wyeth
Pharmaceuticals, Inc., 209 F. Supp. 3d 847, 851-53 (E.D. N.C. 2016). The issue

is vexed. Assuming for now that this claim isn't preempted, it's just not
adequately pleaded. Caughron' s allegations are conclusory; she hasn't stated
particulars about promotion to Mr. Caughron's doctor; the complaint is
heavy on history and light on case-specific facts. Therefore, the off-label
promotion claim is dismissed without prejudice, with leave to amend.

*

*

*

Motions, NQ 5 & 27, partly granted and partly denied, with any
amended complaint due by 1August2017. And it would be most helpful if
Caughron would plead about Upsher-Smith and Taro individually, rather
than saying" defendants" did X, Y, or Z.

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So Ordered.

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