McClurg et al v. MI Holdings, Inc. et al

Filing 188

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the motion of Plaintiffs in the three above-listed cases to file second amended complaints is GRANTED. (Doc. No. 181.) IT IS FUTHER ORDERED that the Clerk of Court shall separate the proposed second amen ded complaints that are attached as exhibits to Plaintiffs' motion and docket them as Second Amended Complaints, each in the appropriate action listed above. IT IS FURTHER ORDERED that Defendants' motions to dismiss the first amended compla ints in the three actions listed above are DENIED without prejudice to Defendants refiling, by incorporation or otherwise, motions to dismiss the second amended complaints in these actions. (Doc. Nos. 170, 171, 173.) Signed by District Judge Audrey G. Fleissig on 4/4/2014. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

SCOTT D. McCLURG, et al.,
Plaintiffs,
vs.
MALLINCKRODT, INC., et al.,
Defendants.

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Case No. 4:12CV00361 AGF
Lead Case for Pretrial Proceedings

MEMORANDUM AND ORDER
This toxic tort action is now before the Court on the motion of Plaintiffs in the three
following cases which have been consolidated with this Lead Case for pretrial proceedings,
for leave to file second amended complaints:
Schneider v. Mallinckrodt, Inc.,, No. 4:13CV00751
Vorce v. Mallinckrodt, Inc., No. 4:13CV01160
Lang v. Mallinckrodt, Inc., No. 4:13CV01483
The proposed amendments allege exposure levels to Plaintiffs exceeding the federal
dose limits, allegations Plaintiffs contend are now supported by expert reports they have
obtained. Two of the five remaining Defendants have filed an objection to the motion for
leave. They maintain that the proposed amendment would be futile, and that even with
the new allegation, the three complaints would be subject to dismissal for failure to state a
claim, because they do not contain sufficient information regarding the dates or duration of
exposure, the locations of exposure, the chemicals or substances involved, or the type of
exposure (e.g., air, soil, or water). Thus, according to the two objecting Defendants, the
proposed amendments only address the federal dose limit and ignore the other deficiencies

argued by Defendants in their respective motions to dismiss the first amended complaints
in the three actions.
Pursuant to Federal Rule of Civil Procedure 15(a)(2), courts should grant leave to
amend a pleading “freely . . . when justice so requires.” The Court believes that here,
Plaintiffs should be permitted to amend their complaints as proposed.
Pursuant to the Order of Consolidation consolidating the above three cases with this
Lead Case for pretrial matters, pleadings defined in Federal Rule of Civil Procedure 4(a)
are to be filed in the original case, rather than in the Lead Case.
Accordingly,
IT IS HEREBY ORDERED that the motion of Plaintiffs in the three above-listed
cases to file second amended complaints is GRANTED. (Doc. No. 181.)
IT IS FUTHER ORDERED that the Clerk of Court shall separate the proposed
second amended complaints that are attached as exhibits to Plaintiffs’ motion and docket
them as Second Amended Complaints, each in the appropriate action listed above.
IT IS FURTHER ORDERED that Defendants’ motions to dismiss the first
amended complaints in the three actions listed above are DENIED without prejudice to
Defendants refiling, by incorporation or otherwise, motions to dismiss the second amended
complaints in these actions. (Doc. Nos. 170, 171, 173.)

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AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 4th day of April, 2014.
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