Moore v. Mylan Inc.

• Decision Date: 05 January 2012
• Docket Number: Civil Action No. 1:11–CV–03037–MHS.
• Citation: 840 F.Supp.2d 1337
• Parties: Octavia L. MOORE, individually, and as next friend and guardian for and on behalf of George L. Frazier, Jr., et al., Plaintiffs, v. MYLAN INC., f/k/a Mylan Laboratories Inc., et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

840 F.Supp.2d 1337

Octavia L. MOORE, individually, and as next friend and guardian for and on behalf of George L. Frazier, Jr., et al., Plaintiffs,

v.MYLAN INC., f/k/a Mylan Laboratories Inc., et al., Defendants.

Civil Action No. 1:11–CV–03037–MHS.

United States District Court,

N.D. Georgia,

Atlanta Division.

Jan. 5, 2012.

Charles Andrew Childers, Michael Brandon Smith, Childers, Schlueter & Smith, LLC, Atlanta, GA, for Plaintiffs.

Lucas Allen Westby, Stephen Mann Brooks, Nelson Mullins Riley & Scarborough, Ann Marie Byrd, DLA Piper LLP, Atlanta, GA, Dylan M. Carson, Sandy M. Eloranto, Tucker, Ellis & West, LLP, Denver, CO, for Defendants.

ORDER

MARVIN H. SHOOB, Senior District Judge.

Presently before the Court are defendants' motions to dismiss. The Court's rulings and conclusions are set forth below.

Background

This is a personal injury and products liability suit brought against the drug manufacturers of the prescription medication phenytoin, sold under the brand name Dilantin. According to the complaint, decedent George L. Frazier was prescribed and ingested phenytoin products, and as a result, he suffered severe and adverse complications, eventually resulting in his death.

The plaintiffs in this case are as follows: (1) Octavia L. Moore, individually and as the next friend and guardian of decedent's son, George L. Frazier, Jr.; (2) Jonathan A. Frazier, the decedent's son; ¹ (3) Johnnie May Frazier, the decedent's widow; (4) Tanya Cephus, the decedent's sister; and (5) the estate of the decedent,

The defendants in this case are the makers and sellers of phenytoin and Dilantin. Defendants Mylan, Inc. f/k/a Mylan Laboratories, Inc.; Mylan Bertek Pharmaceuticals, Inc.; and Mylan Pharmaceuticals, Inc. (collectively “Mylan”) were engaged in the business of manufacturing, packaging, marketing, distributing, promoting, and selling extended phenytoin sodium capsules. Defendants Pharmacia Corporation, Pfizer, Inc.; Parke–Davis; and Warmer–Lambert Company LLC (collectively “Pfizer”) were engaged in the business of the testing, manufacturing, packaging, marketing, labeling, adverse drug event reporting or non-reporting, distributing, promoting, and/or selling Dilantin.

On January 20, 2011, plaintiffs filed a complaint against the Mylan defendants in the State Court of Fulton County. Plaintiffs voluntarily dismissed the complaint without prejudice on February 10, 2011, On August 9, 2011, plaintiffs filed another complaint, this time naming both Mylan and Pfizer as defendants, in the State Court of Pulton County, Defendants removed the case to this Court on September 12, 2011, based on federal diversity jurisdiction.

According to the complaint, phenytoin is a generic for the drug Dilantin, and the generic phenytoin was approved as a bioequivalent by the FDA in December 1998.² Plaintiffs allege that the decedent was prescribed and ingested phenytoin products. Decedent allegedly used phenytoin, a seizure medication,³ and suffered an adverse reaction constituting one or more of the following, sometimes overlapping, severe skin conditions: erythema multiforme exudativum, bullous fixed drug eruption, severe cutaneous adverse reaction, acute generalized exanthematous pustulosis, drug reaction with eosinophilia and systemic symptoms, Toxic Epidermal Necrolysis (“TEN”) and Stevens–Johnson Syndrome (“SJS”).

According to the complaint, decedent was admitted to the University Health Center on December 30, 2008, in Augusta, Georgia, His hospital course was complicated by “diffuse rash thought to be secondary to Dilantin, and progressive renal insufficiency.” Compl. at ¶ 18. On January 23, 2009, Mr. Prazier died at the University Health Center at the age of 51, allegedly as a result of TEN and other health issues, many of which are associated with complications of TEN. Plaintiffs allege that at all times Mylan and Pfizer were engaged in the business of the testing, manufacturing, packaging, marketing, labeling, adverse drug event reporting or non-reporting, distributing, promoting and/or selling phenytoin. Plaintiffs contend that the decedent's conditions and the resulting injuries were caused by the decedent's ingestion of defendants' phenytoin products.

Plaintiffs bring the following claims in their complaint: Count One, Strict Product Liability–Failure to Warn, against Pfizer; Count Two, Strict Product Liability–Defective Design or Manufacture, against all defendants; Count Three, Fraud, against Pfizer; Count Four, Negligence, against Pfizer; Count Five, Gross Negligence; Count Six, Joint and Several Liability; Count Nine, Pre–Death Injury and Pain and Suffering; ⁴ Count Ten, Wrongful Death; and Count Eleven, Punitive Damages.

Pending before the Court are both Mylan's and Pfizer's motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6),

DiscussionA. Legal Standard

When reviewing a claim pursuant to a Rule 12(b)(6) motion, the Court accepts the allegations in the claim as true and construes them in the light most favorable to the party asserting the claim. See Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1262 (11th Cir.2004). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotations and citations omitted). Instead, the complaint must set forth factual allegations “plausibly suggesting (not merely consistent with)” a violation of the law. Id. at 557, 127 S.Ct. 1955.

Accordingly, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). The Iqbal Court explained as follows:

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

129 S.Ct. at 1949 (internal quotes and citations omitted).

“Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 1950 (citation omitted). “But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]'-‘that the pleader is entitled to relief.’ ” Id. (quoting Fed.R.Civ.P. 8(a)(2)),

B. Standing

Pfizer argues that all of the named plaintiffs do not have standing to bring this suit. Instead, Pfizer contends that only Johnnie May Frazier, decedent's surviving spouse, has standing to bring this suit individually and on behalf of the decedent's estate. In response, plaintiffs agree that Tanya Cephus, the decedent's sister, does not have standing. However, plaintiffs contend that all of the other named plaintiffs do have standing.

The Court agrees with Pfizer that only Johnnie May Frazier, as the surviving spouse of George L. Frazier, has standing to pursue the claims in this case individually and on behalf of the estate. Section 51–4–2(a) of the Georgia Code provides that the surviving spouse may recover in a wrongful death action for the full value of the decedent. The statute provides further that if there is no surviving spouse, a child or children, may pursue the wrongful death action. O.C.G.A. § 51–4–2(a). Thus, here, the surviving spouse. Johnnie May Frazier, may rightfully pursue this action individually and on behalf of the decedent. See id.; see also Emory University v. Dorsey, 207 Ga.App. 808, 809 (1993) (a surviving spouse who brings an action for wrongful death acts both as an individual and as a representative of any children of the deceased and the cause of action vests in the surviving spouse, not the children of the deceased). It is where the children are left without an adequate remedy at law, such as the surviving spouse abandoning the decedent's children and not pursuing the wrongful death action, that the decedent's children might pursue the action. SeeO.C.G.A. § 51–4–2(a); see also Emory University, 207 Ga.App. at 809, 429 S.E.2d 307. Thus, because decedent's surviving spouse, Johnnie May Frazier, is pursuing this action, the decedent's children, George L. Frazier, Jr. and Jonathan A. Frazier, have no standing to do so. Moreover, Octavia L. Moore, either individually or as the guardian for George L. Frazier, Jr., has no standing. See Rommelman v. Hoyt, 295 Ga.App. 19, 21, 670 S.E.2d 808 (2008) (finding that neither the decedent's first spouse and biological mother of decedent's children, nor the decedent's children, were authorized to pursue an action for wrongful death, as that right belonged to the surviving spouse). As previously stated, the parties agree that the decedent's sister, Tanya Cephus, also has no standing.

Accordingly, the only proper plaintiff in this action is Johnnie May Frazier, as the surviving spouse of the decedent. She may pursue this action individually and on behalf of the estate of George L. Frazier.⁵

C. Count One—Strict Product Liability—Failure to Warn, against Pfizer

In Count One, Strict Product Liability—Failure to Warn, against Pfizer, plaintiff alleges that defendants knew of the defective nature of the phenytoin products and had a duty to warn the public, including...