Allen v. Sun Pharmaceutical Industries, Inc. et al

Filing 36

Order: Defendants West-Ward Pharmaceutical Corp., Baxter HealthcareCorporation, and Baxter International Inc.s Motion to Dismiss Plaintiffs First Amended Complaint and Defendants Sun Pharmaceutical Industries, Inc. and Caraco Pharmaceutial Lab oratories, Ltd.'s Motion to Dismiss Plaintiff's First Amended Complaint are denied without prejudice to refiling at a later date, if necessary. Lead counsel of record and the parties are reminded that the case is set for a Telephone Conference on October 2, 2012, at 12:00 p.m. noon. Plaintiff's counsel is to setup the conference call. (Related Doc # 22 and # 23 ). Judge Benita Y. Pearson on 9/30/12. (BR,S). Modified on 10/1/2012 (BR,S).

(1:10CV0721)
On April 12, 2011,1 Plaintiff Raymond Allen Sr., individually and as representative of the
Estate of Alma J. Allen, filed a First Amended Complaint (ECF No. 20) against the following
Defendants who allegedly manufacture or distribute Phenytoin, an FDA-approved prescription
anti-seizure medication: Sun Pharmaceutical Industries, Inc. (“Sun”), Baxter Healthcare
Corporation (“Baxter”), Baxter International Inc. (“Baxter International”), West-Ward
Pharmaceutical Corp. (“West-Ward”), Caraco Pharmaceutical Laboratories, Ltd. (“Caraco”), and
Does 1-20. It is alleged that Plaintiff’s decedent, Alma J. Allen, was injured and eventually died
as a result of side effects induced by Phenytoin. ECF No. 20 at ¶ 2. The First Amended
Complaint (ECF No. 20) sets forth the following 16 claims for relief:
First - Strict Products Liability Defective Manufacturing;
Second - Strict Products Liability — Defective Manufacturing — Pursuant to Ohio Rev.
Code § 2307.74;
Third - Strict Products Liability Design Defect;
(first) Fourth - Strict Products Liability Design Defect Pursuant to Ohio Rev. Code §
2307.75;
(second) Fourth - Strict Products Liability — Defect Due to Inadequate Warning;2
Fifth - Strict Products Liability — Defective Due to Inadequate Warning — Pursuant to
Ohio Rev. Code § 2307.76;

1

The Court previously ordered Plaintiff to “file his First Amended Complaint no
later than 3/28/2011.” Non-Document Order entered March 24, 2011. The Court
subsequently granted Plaintiff’s Motion to Accept Previously Filed Amended Complaint
(ECF No. 25). See Non-Document Order entered June 15, 2011. Therefore, ECF No. 20
is now timely.
2

Plaintiff has pled two separate Fourth Causes of Action.
2

(1:10CV0721)
Sixth - Strict Products Liability Due to Non-conformance With Representations;
Seventh - Strict Products Liability Due to Non-conformance With Representations —
Pursuant to Ohio Rev. Code § 2307.77;
Eighth - Negligence;
Ninth - Breach of Express Warranty;
Tenth - Breach of Implied Warranty;
Eleventh - Negligent Representation and Fraud;
Twelfth - Unjust Enrichment;
Thirteenth - False Advertising;
Fourteenth - Wrongful Death Pursuant to Ohio Rev. Code § 2125.01 et. seq.;
Fifteenth - Survivorship; and
Sixteenth - Punitive Damages.
Plaintiff also pleads a “Preservation Claim,” in which he purports to preserve all claims under the
Ohio Product Liability Act (“OPLA”) to the extent they “eliminate or supercede, to any extent,
state common law claims.” ECF No. 20 at ¶ 138.
On August 21, 2012, Sun and Caraco filed a Motion for Judgment on the Pleadings (ECF
No. 30). The motion provides in relevant part:
Sun and Caraco do not waive any arguments raised in their Motion to Dismiss.
Rather, Sun and Caraco assert that the Supreme Court’s decision in Mensing
provides an alternative avenue for dismissing Plaintiff’s lawsuit, thus making it
unnecessary for this Court to rule on the arguments raised in Movants’ Motion to
Dismiss at this time. Should this Court decline to enter a judgment dismissing
Plaintiffs’ Amended Complaint in its entirety, Movants reserve the right to seek a
ruling on their Motions to Dismiss or reassert the arguments raised therein.
ECF No. 30-1 at 8 n. 1.
3

(1:10CV0721)
On August 31, 2012, West-Ward filed a Motion for Judgment on the Pleadings (ECF No.
31). The motion provides in pertinent part:
While all of Plaintiff’s claims against West-Ward should be dismissed for the
reasons set forth in West-Ward’s Motion to Dismiss, the U.S. Supreme Court’s
holding in Pliva, Inc. v. Mensing, 131 S. Ct. 2567 (2011), decided just days after
the Reply Brief for West-Ward’s Motion to Dismiss was filed, provides yet
another, independent ground for dismissing all of Plaintiff’s claims against
West-Ward – namely, because Plaintiff’s claims are preempted by federal law.
ECF No. 31 at 3-4 (footnote omitted).
On September 24, 2012, Baxter International and Baxter filed a Motion for Joinder in
West-Ward’s Motion for Judgment on the Pleadings (ECF No. 35). The motion provides in
relevant part:
All of the Defendants have twice moved the Court to dismiss this action, with the
first motion being denied after Plaintiff was allowed to amend his Complaint.
[Baxter, Baxter International, and West-Ward]’s Joint Motion to Dismiss
Plaintiffs First Amended Complaint [Docket No. 22] is currently [ ] pending
before the Court. [Baxter International and Baxter] do not waive any arguments
raised in the Joint Motion to Dismiss. Rather, [Baxter International and Baxter]
assert that the Supreme Court’s decision in Mensing provides an alternative
avenue for dismissing Plaintiff’s lawsuit, thus making it unnecessary for this
Court to rule on the arguments raised in the Joint Motion to Dismiss at this time.
Should this Court decline to enter a judgment dismissing Plaintiffs’ Amended
Complaint in its entirety, [Baxter International and Baxter] reserve the right to
seek a ruling on their Motion to Dismiss or reassert the arguments raised therein.
ECF No. 35 at 2 n. 1.
Accordingly, Defendants West-Ward Pharmaceutical Corp., Baxter Healthcare
Corporation, and Baxter International Inc.’s Motion to Dismiss Plaintiff’s First Amended
Complaint (ECF No. 22) and Defendants Sun Pharmaceutical Industries, Inc. and Caraco

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