SHUKER et al v. SMITH & NEPHEW, PLC et al

Filing 89

MEMORANDUM ORDER THAT PLAINTIFFS' MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT (DOC. NO. 66 ), IS GRANTED. THE PROPOSED SECOND AMENDED COMPLAINT ATTACHED AS EXHIBIT E TO PLAINTIFFS' MOTION SHALL BE DEEMED FILED. IT IS FURTHER ORDERE D THAT DEFENDANT SMITH & NEPHEW, INC.'S MOTION FOR SUMMARY JUDGMENT (DOC. NO. 59 ), IS GRANTED AS OUTLINED HEREIN. PLAINTIFFS SHALL HAVE UNTIL 4/30/2015 TO FILE A FURTHER AMENDED COMPLAINT. SIGNED BY HONORABLE JUAN R. SANCHEZ ON 3/31/2015. 4/1/2015 ENTERED AND COPIES E-MAILED.(amas)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WALTER SHUKER, et al.
v.
SMITH & NEPHEW PLC, et al.

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CIVIL ACTION
No. 13-6158

ORDER
AND NOW, this 31st day of March, 2015, for the reasons set forth in the accompanying
Memorandum, it is ORDERED Plaintiffs’ Motion for Leave to File Second Amended Complaint
Based on Results of Court-Ordered Discovery (Document 66) is GRANTED. The proposed
Second Amended Complaint attached as Exhibit E to Plaintiffs’ Motion shall be deemed filed.
It is further ORDERED Defendant Smith & Nephew, Inc.’s Motion for Summary
Judgment (Document 59) is GRANTED as follows:
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Judgment is entered in favor of Smith & Nephew, Inc. as to Counts I, III, and V of the
Second Amended Complaint on the basis that the claims set forth in those Counts are
expressly preempted under 21 U.S.C. § 360k(a).

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Counts II, IV, VI, and VII of the Second Amended Complaint are dismissed pursuant
to Federal Rules of Civil Procedure 12(b)(6) and/or 9(b). Insofar as Counts II and VI
are based on off-label promotion, those claims are dismissed without prejudice to
Plaintiffs’ right to file a further amended complaint that corrects the pleading
deficiencies identified in the accompanying Memorandum.

Count VII is also

dismissed without prejudice. Plaintiffs shall have until April 30, 2015, to file a
further amended complaint. Count IV and the balance of Count II are dismissed with
prejudice.

BY THE COURT:

/s/ Juan R. Sánchez
Juan R. Sánchez, J.

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