Caughron v. Upsher-Smith Pharmaceuticals Inc et al

Filing 48

ORDER partly granting and partly denying 41 & 43 Motions. Caughron has one main claim - alleged failure to warn Mr. Caughron's doctor - and a derivative claim for lost consortium. An Initial Scheduling Order will issue. Signed by Judge D. P. Marshall Jr. on 12/4/2017. (jak)

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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. This case is bogged down in the pleadings. Appendix A lists Caughron' s original claims, the Court's rulings on the first motions to dismiss, and the claims as they' re pleaded in Caughron' s amended complaint. Upsher-Smith and Taro again seek dismissal. 2. The claim based on defendants' alleged failure to warn Mr. Caughron' s doctor goes forward. As the Court stated in its last Order, the core issue in that claim is whether Upsher-Smith and Taro gave Mr. Caughron' s doctor the medication guide. NQ 34 at 2. Discovery is still needed to ventilate that issue. The loss of consortium claim also goes forward; it's a derivative of the claim alleging a failure to warn the doctor. 3. Some claims have dropped out. Caughron hasn't attempted to reassert her abandoned claims about the warning's content and design defect. Though she had leave to replead fraud with particularity, she has not. 4. Caughron' s claim about the medication guide and Mr. Caughron is still preempted. NQ 34 at 3. Her new allegation-the guide would have prompted a doctor visit by her husband-doesn't make a legal difference under Arkansas law. This renewed claim is dismissed with prejudice. 5. The Court gave Caughron leave to amend her off-label promotion claim. To her credit, the amended complaint removes the conclusory allegations about a concerted and systemic campaign to market amiodarone for off-label use. Compare NQ 1at31 & 34 with NQ 40 at 18. But Caughron hasn't replaced those conclusions with any casespecific facts. Other than the omissions, there's almost no difference in the amended complaint's pleading of off-label promotion. That claim therefore fails again as conclusory. It is dismissed without prejudice. * * * Motions, NQ 41 & 43, partly granted and partly denied. Here's where the case stands: Caughron has one main claim-alleged failure to warn Mr. Caughron's doctor-and a derivative claim for lost consortium. An Initial Scheduling Order will issue. -2- So Ordered. D.P. Marshall Jr. United States District Judge -3- Appendix A Complaint, NQ 1 Court's Ruling, NQ 34 Amended Complaint, NQ 40 Failure to warnDismissed without inadequate contents prejudice based on of the drug's warning abandonment and directions Not repleaded Design defect Not repleaded Fraud Failure to warnfailure to provide the medication guide to Mr. Caughron Failure to warnfailure to provide the medication guide to Mr. Caughron' s doctor Off-label promotion Loss of consortium Dismissed without prejudice based on abandonment Dismissed without prejudice with leave to amend Preempted and dismissed Not dismissed; will proceed to discovery Not repleaded Repleaded, with new allegation that, had Mr. Caughron received the guide, he would have gone to his doctor No change Dismissed without prejudice with leave to amend Repleaded, omitting some conclusory allegations but not providing new, specific facts Not dismissed No material changes

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