LANE v. WALGREEN CO.

Filing 105

ORDER ON PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT: For these reasons, as more fully set forth in Defendant's response brief, Plaintiff's motion for leave to amend [Filing No. 45] is denied ***SEE ORDER FOR ADDITIONAL INFORMATION***. Signed by Magistrate Judge Tim A. Baker on 5/22/2014. (DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

PATRICIA G. LANE as personal
representative of the estate of ORAL A.
LANE,
Plaintiff,
vs.
WALGREEN CO.,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

No. 1:12-cv-01180-SEB-TAB

ORDER ON PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT
Pending before the Court is Plaintiff’s motion for leave to amend the complaint. [Filing
No. 45.] By way of this motion, Plaintiff seeks leave to add a new claim and in essence a new
party. Defendant objects to this motion on numerous grounds, but in summary contends the
motion is untimely and unfair. For the reasons set forth in Defendant’s objection [Filing No. 48],
as highlighted below, Plaintiff’s motion is denied.
Plaintiff filed this case in July 2012 in state court, and Defendant removed the case to
federal court in August 2012. Thereafter, the Court approved the parties’ proposed Case
Management Plan and set a June 15, 2013, deadline to amend the complaint or join new parties.
[Filing No. 12.] The parties subsequently sought and were permitted to amend certain CMP
deadlines, but did not seek to amend the deadline to amend/join. [Filing No. 31.] The Court has
continued the trial date once already, which is now set for June 30, 2014, though Plaintiff
recently filed a motion to continue that date as well.

On February 4, 2014, Plaintiff filed a motion for leave to amend the complaint. [Filing
No. 45.] Defendant objected to this motion and the parties completed briefing on this motion on
April 14. As set forth in Defendant’s objection, Plaintiff filed the motion for leave to amend
fifteen months after the applicable statute of limitation period expired, over seven months after
the expiration of the CMP deadline to amend/join, and shortly before trial.1 A review of the
allegations in the complaint and proposed amended complaint illustrates why Defendant objects
so vociferously.
The original complaint was brought by Patricia Lane as personal representative of the
estate of her late husband, Oral Lane. The two-count complaint alleges Defendant incorrectly
filled the dosage of Oral Lane’s oxycodone prescription, that Lane fell and injured himself after
ingesting the improper dosage, and that he later died as a result of the injuries sustained by the
Defendant’s negligence. The complaint seeks damages for Oral Lane’s injuries, medical
expenses, wrongful death, burial expenses, and loss of consortium.
The proposed amended complaint seeks to dismiss the wrongful death claim, add a claim
for negligent infliction of emotional distress, and add Patricia Lane as an individual party
plaintiff in addition to her claims as personal representative of her deceased husband’s estate.
[Filing No. 45-2.] As Defendant sees it the proposed amended complaint seeks to add “a
completely new party plaintiff (Patricia Lane in her individual capacity) with two completely
new causes of action: loss of consortium to Mrs. Lane in her individual capacity, and negligent
infliction of emotional distress.” [Filing No. 48, at ECF p. 3.] Defendant argues that these new
claims will require “substantial additional discovery” that will increase the cost of this litigation.
Defendant’s motion states that Defendant has not yet deposed Mrs. Lane and that Defendant had

1

The trial date was May 2, 2014, before the Court reset the date to June 30.
2

“no strong reason” to do so because Mrs. Lane could recover loss of consortium damages under
the original complaint only if the wrongful death claim was ultimately successful. [Filing No.
48, at ECF p. 6.] Defendant further argues that granting the amendment will prejudice the
Defendant because “it would be required to conduct additional (and hurried) discovery on these
new issues” and would be “deprived of its limitations defense to these new claims.” [Filing No.
48, at ECF p. 7.]
Plaintiff claims that “trial strategy” is at the root of the proposed amendment.
Specifically, Plaintiff asserts:
Here, the discovery process revealed the necessity for Plaintiff to conform its
pleadings to be consistent with its trial strategy, which has been shaped and
determined by the course of discovery. As the case has progressed with trial
approaching, Plaintiff’s analysis of the case has allowed it to gain a better
understanding of how the case will be tried and the pleadings should be consistent
therewith.
[Filing No. 45, ECF p. 2.]
Simply put, this argument is not persuasive. Perhaps recognizing this, Plaintiff’s reply
brief in more detail contends that the need to amend the pleadings could not have been foreseen
prior to the deposition of Dr. Bennett. As Plaintiff states it, “Until Dr. Bennett’s deposition, the
Plaintiff was unaware of all the facts and her claims resulting from the Defendant’s negligence.”
[Filing No. 87, at ECF p. 2.] Plaintiff further asserts that Dr. Bennett had medical issues that
made her generally unavailable for deposition previously. [Filing No. 87, at ECF p. 2.]
This argument also falls short for several reasons. First, Plaintiff need not be aware of
“all the facts” to assert her claims. Rather, a complaint need only assert allegations that have
factual support or are likely to have factual support after a reasonable opportunity for further
investigation or discovery. Fed. R. Civ. P. 11(b)(3). Moreover, even allowing for Dr. Bennett’s
medical complications, Plaintiff does not adequately explain why it took over a year and a half
3

after filing this complaint to depose Dr. Bennett. In fact, Plaintiff’s motion and reply brief do not
identify when Dr. Bennett was deposed, what efforts were made to depose Dr. Bennett sooner, or
what significant testimony elicited from Dr. Bennett suddenly made the need to amend apparent.
The Court is hard-pressed to believe that after a year and a half of litigating this case an expert
witness was needed to highlight the need to bring a loss of consortium claim for Patricia Lane
individually or a claim for negligent infliction of emotional distress.
As for the lack of timeliness, Plaintiff argues that the claims are timely because they
relate back to the original claims. Defendant contests this point, relying on Anderson v. Scott,
575 N.E.2d 672, 674 (Ind. Ct. App. 1991) (plaintiff cannot amend its complaint after the statute
of limitations has expired to add a spouse as a new party plaintiff to pursue a loss of consortium
claim). In the Court’s view, this nuanced point could have been easily avoided by Plaintiff
timely seeking leave to amend. Plaintiff has failed to demonstrate sufficient cause to allow the
amendment even under the liberal pleading standard, given the obvious delay by Plaintiff and
prejudice to the Defendant.
For these reasons, as more fully set forth in Defendant’s response brief, Plaintiff’s motion
for leave to amend [Filing No. 45] is denied.2
Dated: 5/22/2014
_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana

2

To the extent that this ruling may be deemed dispositive of the claims Plaintiff seeks to add by
amendment, this order shall be treated as a Report and Recommendation, and Plaintiff shall have
14 days from being served with a copy of this order to file any appeal. This denial is without
prejudice to any subsequent motion Plaintiff may file to dismiss her wrongful death claim.
4

Distribution:
Matthew M. Golitko
GOLITKO & DALY, P.C.
[e-mail]
Robert Thomas Dassow
HOVDE DASSOW & DEETS LLC
[e-mail]
Edward J. Fujawa
LEWIS WAGNER LLP
[e-mail]
Susan E. Cline
LEWIS WAGNER LLP
[e-mail]

5