Coney v. Mylan Pharmaceuticals, Inc. et al

Filing 29

ORDER granting in part and denying in part 6 Motion to Dismiss; granting in part and denying in part 6 Motion to Strike ; granting in part and denying in part 6 Motion to Amend/Correct; granting in part and denying in part 8 Motion to Dismiss; denying 12 Motion to Remand; denying 12 Motion to Stay; denying 12 Motion for Extension of Time to File Response/Reply ; granting 15 Motion to Dismiss. Signed by Judge B. Avant Edenfield on 8/16/11. (bcw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
THEOTIS CONEY,
Plaintiff,
v.

6:11-cv-35

MYLAN PHARMACEUTICALS, INC.,
et al.,
Defendants.
ORDER
I. INTRODUCTION
Plaintiff Theotis Coney (“Coney”) filed
a complaint, individually and as personal
representative of the estate of his wife,
Bertha Coney (“Bertha”). See Doc. 1-3 at
14 (“Complaint”). Coney asserted in his
Complaint that “[t]his is an action to recover
damages for loss of consortium damages
sustained by Theotis Coney related to the
wrongful death of his wife.” See id.
Bertha developed a severe skin rash
following her treatment with a prescription
drug called “Dilantin.” See id. Bertha died
of these complications a month later. See id.
Coney alleged nine counts: (1) strict liability
for a failure to warn; (2) strict liability for
defective design/manufacture; (3)
negligence; (4) fraudulent concealment; (5)
breach of implied warranty; (6) gross
negligence; (7) joint and several liability; (8)
punitive damages; and (9) loss of
consortium. See Doc. 1-3.
Defendants Pfizer, Inc., Warner-Lambert
Company LLC, and Pfizer Pharmaceuticals
LLC (“Pfizer”) removed this case from the

State Court of Screven County, alleging
fraudulent joinder of Georgia resident
Defendant Ross Drugs, Inc. (“Ross”). See
Doc. 1. Coney argues that Ross has been
properly joined and requests that the Court
remand the case to state court. See Doc. 12.
All Defendants have filed motions to
dismiss. See Docs. 6 (motion to dismiss
filed by Pfizer), 8 (motion to dismiss filed
by Mylan Bertek Pharmaceuticals Inc.,
Mylan Laboratories, Inc., and Mylan
Pharmaceuticals, Inc. (“Mylan”)
(collectively with Pfizer and Ross
(“Defendants”)), 15 (motion to dismiss filed
by Ross).
Coney confirmed that “[t]his is an action
to recover damages for loss of consortium
damages sustained by Theotis Coney related
to the wrongful death of his wife” in his
opposition to Defendants’ motions to
dismiss. See Doc. 24 at 2. Thus, Coney’s
allegations all appear to be subsumed within
his loss of consortium claim despite his nine
separate “counts.” See Hightower v.
Landrum, 109 Ga. App. 510, 514 (1964)
(requiring substantive liability before
defendant may be liable for loss of
consortium).
II. FACTS
In November 2007, Bertha was
hospitalized for treatment of seizures
associated with her breast cancer after it
metastasized to her brain. See Docs. 12 at 2,
1-3 at 19. Her treating physician prescribed
and administered Dilantin at that time. See
id. Dilantin is the brand name under which
Pfizer markets the drug Phenytoin Sodium.
See id. Mylan distributes a generic form of
the drug. See id. at 2 n. 1. Bertha’s

to be resolved in favor of remand.” Russell
Corp. v. Am. Home Assurance Co., 264
F.3d 1040, 1050 (1 1th Cir. 2001) (citing
Burns v. Windsor Ins. Co., 31 F.3d 1092,
1095 (1 1th Cir. 1994)). This “presumption
in favor of remand is necessary because if a
federal court reaches the merits of a pending
motion in a removed case where subject
matter jurisdiction may be lacking it
deprives a state court of its right under the
Constitution to resolve controversies in its
own courts.” Univ. S. Ala. v. Am. Tobacco
Co., 168 F.3d 405, 411 (11th Cir. 1999).

physician gave her a prescription for
Dilantin upon her discharge from the
hospital. See id. at 2. She filled that
prescription at Ross. See id.
Bertha developed a severe skin rash in
February 2008. See Doc. 1-3 at 19. On
February 22, 2008, physicians diagnosed her
with Stevens-Johnson Syndrome (“SJS”)
and Toxic Epidermal Necrolysis Syndrome
(“TENS”), potentially fatal diseases known
to develop in African-American patients on
Dilantin. See id. Bertha died on March 21,
2008 as a result of these diseases. See id.

Notwithstanding this presumption, “any
civil action brought in a State court of which
the district courts of the United States have
original jurisdiction” may be removed to
federal court. 28 U.S.C. § 1441(a).
Defendants allege that this Court has subject
matter jurisdiction on the basis of diversity.
See Doc. 1. In order to establish diversity
jurisdiction, Defendants must show that: (1)
the amount in controversy exceeds $75,000,
and (2) the parties are completely diverse.
See 28 U.S.C. § 1332(a). The parties do not
dispute that the requisite amount in
controversy has been satisfied.

Theotis Coney was named Administrator
of Bertha’s estate on August 15, 2008. But
Coney did not file this suit until March 2,
2011. See Doc. 12 at 3.
The parties hotly contest whether Coney
brought his action within Georgia’s twoyear statute of limitation for personal
injuries. See, e.g., Docs. 6-1 at 3-5, 8-1 at 46, 12 at 10-11, 18 at 4-6, 27 at 2-3. This
statute only becomes relevant if Coney has
brought a survival claim on behalf of
Bertha’s estate or a wrongful death action as
her heir; the Court finds he has done neither.
See Doc. 1-3 at 14 (“This is an action to
recover damages for loss of consortium . . .
.”). Thus, the Court does not address this
issue.

Defendants “may remove an action on
the basis of diversity of citizenship if there is
complete diversity between all named
plaintiffs and all named defendants, and no
defendant is a citizen of the forum State.”
Lincoln Prop. Co. v. Roche, 546 U.S. 81, 84
(2005). Here, Ross and Coney are Georgia
residents. Defendants argue that the Court
should disregard Ross’s citizenship because
it was fraudulently joined. See Doc. 1 at 45; see also Triggs v. John Crump Toyota,
Inc., 154 F.3d 1284, 1287 (11th Cir. 1998)
(“Fraudulent joinder is a judicially created

III. ANALYSIS
A. Remand
1. Diversity Jurisdiction
As the Eleventh Circuit has explained,
“there is a presumption against the exercise
of federal jurisdiction, such that all
uncertainties as to removal jurisdiction are
2

doctrine that provides an exception to the
requirement of complete diversity.”).

submitted by the parties.” Crowe, 113 F.3d
at 1538.

In order to establish diversity
jurisdiction in a case involving fraudulent
joinder, the Defendants must prove that
either: “(1) there is no possibility the
plaintiff can establish a cause of action
against the resident defendant; or (2) the
plaintiff has fraudulently pled jurisdictional
facts to bring the resident defendant into
state court.” Crowe v. Coleman, 113 F.3d
1536, 1538 (11th Cir. 1997). Defendants
“bear[] the burden of proof on the issue of
diversity.” Catlett v. Wyeth, Inc., 379 F.
Supp. 2d 1374, 1376 (M.D. Ga. 2004)
(citing Wilson v. Gen. Motors Corp., 888
F.2d 779, 782 n.3 (1 1th Cir. 1989)).

Defendants do not claim that Coney has
fraudulently pled jurisdictional facts.
Instead, they argue that there is no
possibility that he can maintain his claims
against Ross.
“If there is even a possibility” that the
complaint states a viable cause of action
against Ross, “the federal court must find
that joinder was proper and remand the case
to state court.” Id. (citing Coker v. Amoco
Oil Co., 709 F.2d 1433, 1440-41 (11th Cir.
1983), superseded by statute on other
grounds as stated in Georgetown Manor,
Inc. v. Ethan Allen, Inc., 991 F.2d 1533,
1540 (11th Cir. 1993)).

The standard for making such an
evaluation is similar to the summary
judgment standard: “the district court must
evaluate the factual allegations in the light
most favorable to the plaintiff and must
resolve any uncertainties about state
substantive law in favor of the plaintiff.”
Crowe, 113 F.3d at 1538. This standard
does not mean, however, that the Court
“must blindly accept whatever plaintiffs
may say no matter how incredible or how
contrary to the overwhelming weight of the
evidence. Courts are not to decide
automatically in favor of remand simply
because some facts may be said to be in
dispute.” Catlett, 379 F. Supp. 2d at 1379
(internal quotation and citation removed).

Coney named Ross in all but Count II.
See Doc. 1-3 at 21-37. But Coney now
concedes that Ross cannot be liable for
Count I, strict liability, under Georgia Law.
See Doc. 12 at 8. Loss of consortium claims
carry a four year statute of limitation, see
O.C.G.A. § 9-3-33, and Defendants do not
contest Coney’s timeliness regarding that
claim.
Coney must show that the defendant is
liable for some injury to his spouse and that
he has lost consortium. See Hightower v.
Landrum, 109 Ga. App. 510, 514 (1964).
Coney claims that Ross deprived him of his
wife’s services due to its negligence,
fraudulent concealment, breach of an
implied warranty, and gross negligence. See
Doc. 1-3 at 36-37. Because he cannot
sustain any of those underlying claims
against Ross on the merits, he cannot
possibly succeed in a loss of consortium
claim.

The Court makes its determination
“based on the plaintiff’s pleadings at the
time of removal; but the court may consider
affidavits and deposition transcripts

3

Coney cites cases dealing generally with
sellers of products in support of his claims
against Ross. See Doc. 12 at 8-9. Coney
cites no cases discussing pharmacy liability.
See id. Instead, Coney cites a Georgia
Pharmacy Journal guide on tobacco
counseling. See id. at 9.

“acknowledge[d] persuasive authority from
other jurisdictions holding that such implied
warranties do not apply to the dispensing of
medication by a pharmacist.” Id.; see also
Sparks v. Kroger Co., 200 Ga. App. 135,
136 (1991) (pharmacist cannot be liable
without a finding of professional
malpractice).

Any form of negligence requires “the
existence of a duty on the part of the
defendant, a breach of that duty, causation
of the alleged injury, and damages resulting
from the alleged breach of the duty.”
Rasnick v. Krishna Hospitality, Inc., 2011
WL 2610298, at *1 (Ga. July 5, 2011).

Coney fraudulently joined Ross, and
therefore this Court must disregard its
Georgia citizenship. The remaining parties
are completely diverse, and this Court has
jurisdiction under 28 U.S.C. § 1332.
2. Procedural Flaws

Georgia pharmacies have no duty to
warn consumers of risks associated with
prescription drugs under the learned
intermediary rule. See Chamblin v. K-Mart
Corp., 272 Ga. App. 240, 244 (2005). In
Chamblin, the court held that the prescribing
physician “is in a better position to warn the
patient.” See id. Accordingly, Coney’s
claim fails at the first step: duty.

Coney challenges removal on procedural
grounds as well, alleging that Defendants
failed to timely join or consent to a petition
for removal. See Doc. 12 at 6. All
defendants must timely join or consent to a
petition for removal. See In re Bethesda
Mem. Hosp., Inc., 123 F.3d 1407, 1410 n.2
(1 1th Cir. 1997). But an exception to this
rule exists where a defendant has been
fraudulently joined. See Pensyl v. Terminix
Int’l Co., 2010 WL 1487269, at *1 n.3
(M.D. Ga. Apr. 12, 2010). Pfizer removed
with Mylan’s consent. See Doc. 1 at 3.
Ross did not consent, but was fraudulently
joined. Defendants satisfied 28 U.S.C.
§ 1446’s requirements.

Similarly, “an obligation to disclose
must exist before a party may be held liable
for fraud based upon the concealment of
material facts.” DaimlerChrysler Motors
Co., LLC v. Clemente, 294 Ga. App. 38, 56
(2008) (quoting Infrasource v. Hahn Yalena
Corp., 272 Ga. App. 703, 705 (2005)).
Georgia pharmacies have no such
obligation. See Chamblin, 272 Ga. at 244.

Coney’s motion for remand, see Doc.
12, is DENIED.

The learned intermediary doctrine also
protects pharmacists from implied warranty
suits. See Presto v. Sandoz Pharms. Corp.,
226 Ga. App. 547, 551 (1997) (claim
dismissed where defendants neither
manufactured nor prescribed the subject
drug). The Georgia Court of Appeals also

B. Motions to Dismiss

All Defendants have filed motions to
dismiss. See Docs. 6, 8, 15. In considering
a Federal Rule of Civil Procedure 12(b)(6)
motion, all facts in the plaintiff’s complaint
“are to be accepted as true and the court
4

limits its consideration to the pleadings and
exhibits attached thereto.” GSW, Inc. v.
Long Cnty., 999 F.2d 1508, 1510 (11th Cir.
1993). A complaint will not be dismissed so
long as it contains factual allegations
sufficient “to raise a right to relief above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007); see
also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009) (claim must have “facial
plausibility”); Edwards v. Prime, Inc., 602
F.3d 1276, 1291 (1 1th Cir. 2010).

expresses no opinion as to the sufficiency of
Coney’s pleading of any wrongful death or
survival action, or compliance with their
statutes of limitation.
a. Breach of Implied
Warranty
Pfizer and Mylan move to dismiss
Coney’s loss of consortium allegations
based on its breach of an implied warranty.
See Docs. 6-1 at 5-6, 8-1 at 6-7. Coney
admits that he lacks privity with Pfizer or
Mylan because Bertha purchased her
prescription through Ross, rather than
directly through either manufacturer. See
Doc. 24 at 15-16. But Coney contends that
privity is not required to state a claim for
breach of an implied warranty. See id.
Coney quotes O.C.G.A. § 51-1-11 (b)(1):

1. Ross

Ross moves to dismiss based on the
grounds discussed above. Coney cannot
possibly succeed on any of his claims
against Ross, even assuming the truth of
Coney’s allegations. Those claims are
DISMISSED. Ross’s motion to dismiss,
see Doc. 15, is GRANTED.

The manufacturer of any personal
property sold as new property
directly or through a dealer or any
other person shall be liable in tort,
irrespective of privity, to any natural
person who may use, consume, or
reasonably be affected by the
property and who suffers injury to
his person or property because the
property when sold by the
manufacturer was not merchantable
and reasonably suited to the use
intended, and its condition when sold
is the proximate cause of the injury
sustained.

2. Pfizer & Mylan

Pfizer and Mylan move to dismiss any
wrongful death claim or survival action
Coney brings “to the extent his lawsuit
asserts [those claims.]” See Docs. 6-1 at 1;
8-1 at 1-2. As to Coney’s loss of consortium
claim, Defendants challenge its basis on a
breach of implied warranty and move to
pare down his requested relief. See Docs. 61 at 6-8, 8-1 at 7-9.
Coney does not bring any claim directly
on behalf of his wife’s estate or any
wrongful death action as her heir. While he
does describe himself as bringing the case
“Individually and as Personal Representative
of the Estate of Bertha Coney, Deceased,”
he twice describes the action as one for loss
of consortium damages sustained by
himself. See Doc. 1-3 at 14. The Court

But this statute means that privity is
not required to prove negligence, strict
liability, or another tort claim. An
implied warranty claim is a contract
action and requires privity. See In re
Mentor Corp. ObTape Transobturator
5

Coney’s prayers for lost earnings,
healthcare expenses, repossessed vehicles,
and any damages incurred after Bertha died
are unrecoverable. See Branton, 185 Ga.
App. at 821.

Sling Prods. Liab. Litig., 711 F. Supp.
2d 1348, 1366 (M.D. Ga. 2010); see also
O.C.G.A. § 51-1-11(a) (“[I]f the tort
results from the violation of a duty
which is itself the consequence of a
contract, the right of action is confined
to the parties and those in privity to that
contract . . . .”). Coney’s loss of
consortium claim based on the breach of
an implied warranty is DISMISSED.

Defendants also argue that punitive
damages are unavailable for a loss of
consortium claim in Georgia. See Docs. 26
at 6, 27 at 6. Pfizer complains that “Plaintiff
cites no law that punitive damages are
available for a loss of consortium claim” and
asserts that “[i]ndeed, they are not.” See
Doc. 26 at 6. Pfizer, however, also fails to
cite any authority. See id.

b. Damages
Defendants argue that the loss of
consortium damages Coney seeks exceed
those allowed by Georgia law. See Docs. 61 at 6-8, 8-1 at 7-9. Under Georgia law,
consortium includes “society,
companionship, love, affection, aid,
services, cooperation, sexual relations, and
comfort, such being special rights and duties
growing out of the marriage covenants.”
Smith v. Tri-State Culvert Mfg. Co., 126 Ga.
App. 508, 510 (1972).

Mylan argues that “a loss-of-consortium
plaintiff cannot recover punitive damages in
cases that involve wrongful death.” See
Doc. 8-1 at 9 (citing Engle v. Finch, 165 Ga.
131 (1927)). In Engle, the court held that
the damages provided by Georgia’s
wrongful death act are themselves punitive
and thus a plaintiff collecting wrongful
death damages could not also collect
punitive damages. See Engle, 165 Ga. at
131.

“A claim for loss of consortium does not
extend the period during which damages
may be asserted for physical injuries to the
person.” Branton v. Draper Corp., 185 Ga.
App. 820, 821 (1988). “A claim for ‘loss of
consortium’ does not include lost wages,
medical expenses, or loss of earning
capacity.” Id. Also, “the right of
consortium exists only during the joint lives
of the husband and wife and where the
injured spouse subsequently dies, either as a
result of the injury or from other causes, the
survivor can recover for the loss of
consortium only to the time of the other's
death.” Walden v. Coleman, 105 Ga. App.
242, 243 (1962) (internal citation omitted).

Here, Coney did not bring a wrongful
death claim.
He seeks only loss of
consortium and punitive damages.
“Damages for loss of consortium are
designed to compensate the spouse for the
loss of services, sexual intercourse, society
and affectionate relations,” rather than to
punish anyone. Timms v. Verson Allsteel
Press Co., 520 F. Supp. 1147, 1149 (N.D.
Ga. 1981) (emphasis added). Thus,
allowing punitive damages is not
duplicative.
This Court’s own research unearthed one
case in which Georgia courts allowed a loss
6

of consortium plaintiff to also collect
punitive damages. See J.B. Hunt Transp.,
Inc. v. Bentley, 207 Ga. App. 250, 252
(1992). The court affirmed a jury’s award
for loss of consortium and $250,000 in
punitive damages to a wife whose husband
was injured, but not killed, in a vehicular
collision. See id.

implied warranty would not state a claim
under a more carefully plead complaint.
Coney acknowledges that Bertha had no
privity with Pfizer or Mylan. See Doc. 24 at
15-16. Georgia law requires privity to hold
a manufacturer liable for a breach of an
implied warranty. See In re Mentor Corp.
ObTape Transobturator Sling Prods.
Liability Litig., 711 F. Supp. 2d 1348, 1366
(M.D. Ga. 2010). This claim is

Georgia law allows punitive damages for
loss of consortium plaintiffs.

DISMISSED.

3. Resolution

Likewise, Coney’s prayer for loss of
consortium damages included items that
Georgia law does not allow. Removing
these claims does not prejudice Coney’s
ability to seek those loss of consortium
damages allowed under Georgia law. His
other claims are DISMISSED.

Coney asks that he be allowed to file an
amended complaint in lieu of dismissal in
the event the Court finds his pleading
insufficient. See Doc. 24 at 16.
The Eleventh Circuit has “recognized
that, where it appears a more carefully
drafted complaint might state a claim upon
which relief can be granted, . . . a district
court should give a plaintiff an opportunity
to amend his complaint instead of
dismissing it. However, if a more carefully
drafted complaint could not state a claim . .
., dismissal with prejudice is proper.” See
Ziemba v. Cascade Int’l, Inc., 256 F.3d
1194, 1213 (11th Cir. 2001) (internal
citation and quotation omitted).

Pfizer’s and Mylan’s motions to dismiss,
see Docs. 6, 8, are GRANTED IN PART

AND DENIED IN PART.

Coney’s claims against Ross cannot state
a claim no matter how much more care his
attorneys exercise in repleading his
Complaint. Georgia law does not burden
pharmacists with the duties that Coney
believes Ross violated. See Chamblin v. KMart Corp., 272 Ga. App. 240, 244 (2005).
These claims are DISMISSED.
Similarly, Coney’s loss of consortium
claims based on an alleged breach of
7

IV. CONCLUSION
Coney’s motion for remand, see Doc.
12, is DENIED.
Ross’s motion to dismiss, see Doc. 15, is

GRANTED.
Pfizer’s and Mylan’s motions to dismiss,
see Docs. 6, 8, are GRANTED IN PART

AND DENIED IN PART.

This 16th day of August 2011.

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BAVANTPDENFIELØ,JUDGE
UNITED STATES DISTRIC OURT
SOUTHERN DISTRICT OF GEORGIA

8