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

Filing 200

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. 178.) IT IS FUTHER ORDERED that the Clerk of Court shall separate the proposed second ame nded 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. 156, 158, 160.) Signed by District Judge Audrey G. Fleissig on 5/29/14. (JWJ)

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
following three cases which have been consolidated with this Lead Case for pretrial
proceedings, for leave to file second amended complaints:
McClurg, et al. v. MI Holdings, Inc., 4:12CV00361 AGF
Adams, et al. v. MI Holdings Inc., 4:12CV00641 AGF
Steinmann, et al. v. MI Holdings, Inc., 4:12CV01942 AGF.
The proposed amendments allege radiation exposure levels to Plaintiffs exceeding
the federal radiation-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 radiation-dose
limit and ignore the other deficiencies argued by Defendants in their respective motions to

dismiss the first amended complaints in the three actions. They also argue that these
Plaintiffs should not be given yet another chance to cure their deficient complaints.
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. Granting the
motion to amend would also bring the three complaints at issue into conformity with the
other complaints that have been consolidated in this action.
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. 178.)
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. 156, 158, 160.)

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AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 29th day of May, 2014.

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