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)
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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