Sweeney et al v. Lafayette Pharmaceuticals, Incorporated et al

BRIEF in Opposition

D.N.J.June 30, 2017

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY : JOHN M. SWEENEY and REGINA Case 2:16-cv-04860-ES-MAH SWEENEY, his Wife, : Hon. Esther Salas, U.S.D.J. Plaintiffs, : v. : ALCON LABORATORIES, INC, : EASTMAN KODAK COMPANY, ABC CORPORATIONS 1-10 (a series : of fictitious corporations), and JOHN DOES 1-15 (a series of fictitious names), : MOTION DATE: JULY 17, 2017 Defendants. : MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT ALCON’ MOTION TO DISMISS PLAINTIFFS’ THIRD AMENDED COMPLAINT LAW OFFICES OF G. MARTIN MEYERS, P.C. 35 West Main Street, Suite 106 Denville, New Jersey 07834 (973) 625-0838 Fax (973) 625-5350 gmm@gmeyerslaw.com Attorneys for Plaintiffs GARY MARTIN MEYERS, ESQ. On the Brief Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 1 of 33 PageID: 329 i TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii I. PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. LEGAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. PLAINTIFFS’ CLAIMS ARE TIMELY UNDER PENNSYLVANIA LAW AND, IN THE UNLIKELY EVENT THE COURT FINDS AN ISSUE AS TO THEIR TIMELINESS, THAT ISSUE IS FOR THE JURY TO DECIDE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. Plaintiffs’ Action Accrued on August 19, 2014 At The Earliest . . . . . 2 2. Plaintiff John Sweeney, A Physical Therapist, Is Not Chargeable With Knowing The Etiology Of An Unusual Medical Condition (Arachnoiditis), Nor With Awareness Of A Small Handful Of Lawsuits Nationwide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3. Plaintiffs’ Express-Warranty Claims Also Are Timely . . . . . . . . . . . . 10 5. In The Unlikely Event The Court Finds An Issue As To The Timeliness Of Plaintiffs’ Claims, Under Pennsylvania Law That Issue Is For The Jury To Decide . . . . . . . . . . . . . . . . . . . . . . . . . 11 B. PLAINTIFFS HAVE STATED VALID CLAIMS FOR RELIEF, AND DEFENDANTS’ MOTION TO DISMISS THEIR CLAIMS BASED UPON INSUFFICIENCY OF PLEADING SHOULD ALSO BE DENIED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 2 of 33 PageID: 330 ii 1. Plaintiffs Have Stated A Valid Claim Based Upon Failure To Adequately Warn Of The Dangers Of Pantopaque Myelography . . . . 14 2. Plaintiffs Have Stated A Valid Claim For Defective Design Of Pantopaque. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 3. Plaintiffs Have Stated A Valid Claim For Breach of Express Warranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 4. Plaintiffs Have Stated A Valid Claim For Loss Of Consortium On Behalf Of Plaintiff Regina Sweeney . . . . . . . . . . . . . . . . . . . . . . . 23 5. Plaintiffs Specifically Name Alcon In Their Allegations, And Thus Have Adequately Provided Notice To Alcon Under Fed. R. Civ. P. 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 C. ALTERNATIVELY, IN THE UNLIKELY EVENT THE COURT DETERMINES THE THIRD AMENDED COMPLAINT TO BE DEFICIENT IN ANY RESPECT, PLAINTIFFS SHOULD BE GRANTED LEAVE TO AMEND . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 III. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 3 of 33 PageID: 331 iii TABLE OF AUTHORITIES Cases Abbent v. Eastman Kodak Co., 1992 U.S. Dist. LEXIS 22582 (D.N.J. 1992) . . . . . . . . . . . . . . . . . . . . 3, 9, 14, Ahearn v. Lafayette Pharmacal, Inc., 729 S.W.2d 501 (Mo. Ct. App. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6, 7 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) . . . . . . . . . . . . . . . . .13 Cogswell v. Wright Med. Technology, Inc., 2015 U.S. Dist. LEXIS 92461 (W.D. Pa. 2015) . . . . . . . . . . . . . . . . . . 21 Conneen v. Amatek, Inc., 2017 U.S. Dist. LEXIS 299787 (E.D. Pa. March 2, 2017) . . . . . . . . . . 4, 12 Davenport v. Medtronic, Inc., 302 F.Supp.2d 419 (E.D. Pa. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Drelles v. Mfrs. Life Ins. Co., 881 A.2d 822 (Pa. Super. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8 Esposito v. I-Flow Corp., 2011 U.S. Dist. LEXIS 122570 (E.D. Pa. 2011) . . . . . . . . . . . . . . . . . . 21 Fidler v. Eastman Kodak Co., 714 F.2d 192 (1 st Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Grant v. Turner, 505 F. Appx. 107 (3d Cir. 2012) . . . . . . . . . . . . . . . . 25 Horsmon v. Zimmer Holdings, Inc., 2011 U.S. Dist. LEXIS 130415 (W.D. Pa. 2011) . . . . . . . . . . . . . . . . . 21 In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410 (3d Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Kee v. Zimmer, Inc., 871 F.Supp.2d 405 (E.D. Pa. 2012) . . . . . . . . . . 21 Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 4 of 33 PageID: 332 iv Kester v. Zimmer Holdings, 2010 U.S. Dist. LEXIS 59869 (W.D. Pa. 2010) . . . . . . . . . . . . . . . . . . 21 Mazur v. Merck & Co., 742 F. Supp. 239 (E.D. Pa. 1990) . . . . . . . . . . 4, 7 McLaughlin v. Bayer Corp., 172 F.Supp.3d 804 (E.D. Pa. 3/22/16) . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Ocean Barge Trans. Co. v. Hess Oil V.I. Corp., 726 F.2d 121 (3d Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Parkinson v. Guidant Corp., 315 F. Supp. 2d 741 (W.D. Pa. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Pusey v. Becton Dickinson & Co., 794 F.Supp.2d 551 (W.D. Pa. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Rowland v. Novartis Pharm. Corp., 34 F.Supp.3d 556, 567 (W.D. Pa. 2014) . . . . . . . . . . . . . . . . . . . . . . . . 12 Simon v. Wyeth Pharm., Inc., 989 A.2d 356 (Pa. Super. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-11, 17-19 Staub v. Eastman Kodak Co., 320 N.J. Super. 34 (App. Div. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Stauffer v. Ebersole, 385 Pa. Super. 306 (Pa. Super. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 10, 13 Trieschock v. Owens-Corning Fiberglas Co., 354 Pa. Super. 263, 511 A.2d 863 (Pa. Super. 1986) . . . . . . . . . . . . . . 4-7, 10 Umland v. PLANCO Financial Services, Inc., 542 F.3d 59 (3d Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 19 Vitale v. Buckingham Mfg. Co., 184 Fed. Appx. 156 (3d Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7, 13 Watkins v. ITM Records, 2015 U.S. Dist. LEXIS 96610 (E.D. Pa. 2015) . . . . . . . . . . . . . . . . . . . 24 Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 5 of 33 PageID: 333 v Wilson v. El-Daief, 600 Pa. 161, 964 A.2d 354 (Pa. 2009) . . . . . . . . . . 12 Wright v. Ryobi Technologies, Inc, 175 F.Supp.3d 439 (E.D. Pa. March 30, 2016) . . . . . . . . . . . . . . . . . . . 14 Statutes 13 Pa.C.S. § 2725(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Court Rules Fed. R. Civ. P. 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 23 Fed. R. Civ. P. 9(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 6 of 33 PageID: 334 1 I. PRELIMINARY STATEMENT This case arises from the administration of a Pantopaque myelogram to Plaintiff John Sweeney in 1975, and his subsequent development of an extremely painful, debilitating, and crippling spinal disorder known as chronic adhesive arachnoiditis (“arachnoiditis”) - a disease that he was not diagnosed to be suffering from until almost forty years after his Pantopaque myelogram took place. Defendants Alcon Laboratories, Inc. (“Alcon”), and Eastman Kodak (“Kodak”) manufactured and distributed the radiologic contrast dye Pantopaque, before its association with arachnoiditis was fully appreciated by the medical community, sometime in the 1980s, and its use was abandoned. In its pending Motion to Dismiss, Defendant Alcon contends that Plaintiffs’ claims in their Third Amended Complaint are time-barred under Pennsylvania law, and that those claims should also be dismissed for failure to comply with the “notice” pleading requirements of Rule 8, Fed. R. Civ. P. As explained below, however, Defendant Alcon’s Motion to Dismiss is meritless. It misapplies the applicable law of Pennsylvania, and it misapplies the pleading requirements of Rule 8, Fed. R. Civ. P. For all of these reasons, and on the basis of the legal argument set forth below, Defendant Alcon’s Motion to Dismiss should be denied in its entirety. Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 7 of 33 PageID: 335 2 II. LEGAL ARGUMENT A. PLAINTIFFS’ CLAIMS ARE TIMELY UNDER PENNSYLVANIA LAW AND, IN THE UNLIKELY EVENT THE COURT FINDS AN ISSUE AS TO THEIR TIMELINESS, THAT ISSUE IS FOR THE JURY TO DECIDE. Plaintiffs agree with Defendant Alcon that Pennsylvania substantive law applies to this case. However, Alcon has provided this Court with an incomplete and misleading analysis of Pennsylvania law with respect to the timeliness of Plaintiffs’ claims in this case, because it overlooks Pennsylvania’s application of the “discovery rule” to claims arising from “creeping diseases,” like the Pantopaque-induced arachnoiditis that forms the subject matter of this case. 1. Plaintiffs’ Action Accrued on August 19, 2014 At The Earliest. Plaintiff John Sweeney first manifested lower-extremity weakness and numbness in 2009, and it is clear (with the benefit of hindsight) that those symptoms were likely associated with the arachnoiditis he was diagnosed to be suffering from some five years later. Defendant somehow seeks to derive from these facts that Mr. Sweeney’s “injury” occurred in 2009, and “thus” the time for bringing this action expired in 2011. (Dfdt. Br. at 9). Then, reciting the Pennsylvania “discovery rule” principles applicable to a plaintiff who, with reasonable diligence, cannot at first “know that he has been injured and by what cause” (Dfdt. Br. at 9-10, quoting Drelles v. Mfrs. Life Ins. Co., 881 A.2d 822, 831 (Pa. Super. 2005)), Defendant curiously argues that Plaintiff John Sweeney’s first Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 8 of 33 PageID: 336 3 awareness of lower-extremity numbness and weakness in 2009 gave him “the ability[sic] to know of[sic] the alleged injury as well as the alleged causal relationship between Pantopaque and the alleged injury”. (Id. at 10, emphasis added). This contention is not only nonsensical, it is not even remotely supported by the cases upon which Defendant Alcon seeks to rely, almost all of which involved either a definitive diagnosis of arachnoiditis as the triggering event for accrual of the plaintiff’s claim, or at least some outside source of knowledge which clearly enabled the plaintiff to “connect the dots” between a Pantopaque myelogram and his or her arachnoiditis symptoms. See, e.g., Ahearn v. Lafayette Pharmacal, Inc., 729 S.W.2d 501 (Mo. Ct. App. 1987) (Dfdt. Br. at 11) (claimant, diagnosed with arachnoiditis nine years before bringing suit, was barred under Missouri statute which limited equitable tolling to cases where “damage resulting” from the injury” is not “capable of ascertainment” by anyone, including treating physicians, 729 S.W.2d at 503-504); Fidler v. Eastman Kodak Co., 714 F.2d 192 (1 st Cir. 1983) (Dfdt. Br. at 11) (plaintiff waited more than two years after her physician advised her that Pantopaque probably caused her symptoms, 714 F.2d at 197); Abbent v. Eastman Kodak Co., 1992 U.S. Dist. LEXIS 22582 (D.N.J. 1992) (Dfdt. Br. at 10) (did not address statute of limitations or discovery rule); Staub v. Eastman Kodak Co., 320 N.J. Super. 34 (App. Div. 1999) (Dfdt. Br. at 11) (plaintiffs, husband and Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 9 of 33 PageID: 337 4 wife, watched TV talk show outlining causal link of Pantopaque to arachnoiditis, and describing symptoms identical to injured husband’s, then waited four years to bring action). Most importantly, however, Alcon completely overlooks the discovery rule principles applicable under Pennsylvania law to claims arising from so-called “creeping diseases,” latent diseases (like arachnoiditis) whose symptoms often do not emerge for years or even decades after the “injury” that caused those diseases actually occurred - in this case, the Pantopaque myelogram Plaintiff John Sweeney received in 1975. Claims arising from these so-called “creeping diseases” are subject to special considerations under Pennsylvania law. Conneen v. Amatek, Inc., 2017 U.S. Dist. LEXIS 299787, at **41-42 (E.D. Pa. March 2, 2017). As explained in Trieschock v. Owens-Corning Fiberglas Co., 354 Pa. Super. 263, 268, 511 A.2d 863, 866 (Pa. Super. 1986), one of the first Pennsylvania cases to consider claims arising from a “creeping disease”: “A plaintiff in a creeping disease case should not be required to have greater knowledge than his physicians about his medical condition. If those physicians are not reasonably certain as to his diagnosis, then he certainly cannot be bound to have the knowledge necessary to start the statute of limitations running.” Trieschock v. Owens-Corning Fiberglas Co., 354 Pa. Super. 263, at 268 (emphasis supplied); see also, Stauffer v. Ebersole, 385 Pa. Super. 306, at 311 (Pa. Super. 1989); Mazur v. Merck & Co., 742 F. Supp. 239, 249 (E.D. Pa. 1990); Vitale v. Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 10 of 33 PageID: 338 5 Buckingham Mfg. Co., 184 Fed. Appx. 156, 159 (3d Cir. 2006) (citing Trieschock for this same proposition). Here, Plaintiff John Sweeney sought to find the cause of his lower-limb weakness and numbness from the time of its onset in 2009 (Third Amd. Compl., ¶¶ 16-20). Nevertheless, he was not diagnosed with arachnoiditis, nor was he advised of the presence of any specific cause for those symptoms, despite multiple consults and tests, until an MRI on August 19, 2014 disclosed to his physicians that he had advanced arachnoiditis in his thoracic spine, and his physicians advised Mr. Sweeney of this diagnosis on September 3, 2014. (Third Amd. Compl. ¶ 17). As a result, under the applicable principles of Pennsylvania law set forth above, Mr. Sweeney’s claims against Defendant Alcon could not have accrued prior to August 19, 2014 at the earliest, when his MRI of that date finally led to a diagnosis of arachnoiditis as the cause of his symptoms. Trieschock, 354 Pa. Super. at 268. Since Plaintiffs filed their Complaint in this action on August 10, 2016, less than two years after the accrual date of August 19, 2014, their claims are clearly timely under Pennsylvania law. 2. Plaintiff John Sweeney, A Physical Therapist, Is Not Chargeable With Knowing The Etiology Of An Unusual Medical Condition (Arachnoiditis), Nor With Awareness Of A Small Handful Of Lawsuits Nationwide. In addition to completely ignoring the directly applicable “creeping disease” principles of Pennsylvania law discussed above, Defendant Alcon is also Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 11 of 33 PageID: 339 6 attempting a “back-door” approach to inducing this Court to misapply Pennsylvania law, and instead require Mr. Sweeney to have discovered, by 2011, both the existence of his “injury” and its “cause.” Seizing on Plaintiff’s admission to having “some background in medicine” (his physical-therapy training, Third Amd. Compl. ¶ 19), Defendant Alcon misquotes the Complaint to venture that, based on his training as a physical therapist, Plaintiff “determined[sic] there must be a less common cause for his arachnoiditis” than cancer or impact trauma. (Dfdt. Br. at 12-13, twisting Third Amd. Compl. ¶ 19, internal quotes omitted). 1 Defendant further insinuates that Plaintiff (whose physical-therapy training it evidently finds equivalent to an M.D. degree and residency) failed to exercise ordinary diligence in failing to apprise himself of “the medical community[’s] . . . aware[ness] of the possible[sic] causation link between arachnoiditis and the use of pantopaque in myelography”, and the “considerable literature” suggesting that link. (Dfdt. Br. at 11, quoting Ahearn, 729 S.W.2d at 503). In short, Alcon is asking this Court to require Mr. Sweeney to have known more about his medical condition in 2009 than his doctors were able to uncover by that same date, despite his (and their) diligent search. (Third Amd. Compl. ¶¶ 15- 17). As noted above, however, Pennsylvania law is clear in its conclusion that “[a] 1 The Complaint and First, Second and Third Amended Complaints actually state that Plaintiff “reasoned” that his arachnoiditis arose from some less-common source than cancer or thoracic trauma, of which he had no history. (Compl. ¶ 24; Third Amd. Compl. ¶ 19). Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 12 of 33 PageID: 340 7 plaintiff in a creeping disease case should not be required to have greater knowledge than his physicians about his medical condition.” Trieschock., 354 Pa. Super. at 268, 511 A.2d at 866 (Pa. Super. 1986) (emphasis supplied); Mazur, 742 F. Supp. at 249 (E.D. Pa. 1990); Vitale, 184 Fed. Appx. at 159 (3d Cir. 2006). For Defendants to suggest that a well-settled principle of Pennsylvania law should simply be ignored in this case, because Mr. Sweeney happens to be a physical therapist, is nonsensical. As noted above, the Missouri court in Ahearn, on which Defendant relies, based its plaintiff-adverse holding on that State’s extremely harsh accrual statute, which limits the discovery rule to a point where “the damage resulting from the injury is sustained and is capable of ascertainment” by anyone, including expert treating physicians. Id., 729 S.W.2d at 503-504. By contrast, the Pennsylvania discovery rule is far less draconian, and requires entirely different considerations. Under Pennsylvania law, this Court is required to take account of the fact that Plaintiff, while having “some” medical background, is not a physician capable of “determining[sic]”, in the absence of a medical diagnosis (Dfdt. Br. at 13), that he had arachnoiditis, much less that the fault of Pantopaque was “probable”. In this context, Simon v. Wyeth Pharm., Inc., 989 A.2d 356 (Pa. Super. 2009), cited by Defendant (Br. at 9), is also instructive. In that Pennsylvania pharmaceutical products-liability accrual case, the female plaintiff, who had been Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 13 of 33 PageID: 341 8 prescribed and had taken hormone-replacement therapy (HRT) drugs for 10 years before being diagnosed with breast cancer, filed a products-liability action more than two years after her diagnosis, but within two years of the issuance of a National Institutes of Health study outlining the causative role of HRT in breast cancer. (Id., 989 A.2d at 367). The plaintiff in Simon, like Plaintiff John Sweeney in this case, lacked the necessary knowledge both “that [s]he ha[d] been injured” and “by what cause” (Id, citing Drelles v. Mfrs. Life Ins. Co., 881 A.2d 822, 831 (Pa. Super. 2005)), until a point after the two-year limitations period. By the same token, here Plaintiff John Sweeney had no idea that his symptoms arose from any detectable cause (including arachnoiditis), until August 19, 2014 at the earliest. (Amd. Comp. ¶ 24). In fact, even more compelling in this case is that Mr. Sweeney had no idea, even when his arachnoiditis was finally diagnosed, that he had even suffered an “injury.” Id. 2 It was only after he learned of that diagnosis, and conducted an internet search which disclosed to him, for the first time, a causal link between his arachnoiditis, his symptoms of progressive weakness, numbness, falling and pain on the one hand, and exposure to Pantopaque on the other, that Mr. Sweeney was able to “connect 2 Although Pantopaque myelograms have repeatedly been associated with arachnoiditis in its most severe forms, as Defendant Alcon is well aware there are numerous other causes of arachnoiditis as well. Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 14 of 33 PageID: 342 9 the dots,” and recognize he may have suffered an “injury” as the result of the Pantopaque myelogram that had been administered to him in 1975. (Id., ¶ 19). Moreover, unlike the NIH “media blitz” in Simon, which made national headlines with respect to the causal connection between hormone therapy and breast cancer, this Court itself has previously observed that “arachnoiditis arising from any source is an uncommon diagnosis.” Abbent v. Eastman Kodak Co., 1992 U.S. Dist. LEXIS 22582, *15-16 (D.N.J. 1992) (emphasis supplied). Likewise, it is specious at best to suggest the handful of Pantopaque lawsuits nationwide, such as the four cited by Defendant, are “likely” to come to the attention of any reasonably alert non-lawyer (Dfdt. Br. at 10-11). This paltry number of Pantopaque lawsuits is easily distinguishable from the “massive media attention” and “significant decline in use” which accompanied the 2002 NIH report on the link between breast cancer and the use of hormone replacement therapy which the Pennsylvania Superior Court in Simon held triggered accrual of that plaintiff’s pharmaceutical products-liability claims in that case. (Id., 989 A.2d at 363). 3 In short, its bold assertion to the contrary notwithstanding, Defendant Alcon has utterly failed to demonstrate how “Sweeney, upon experiencing alleged 3 Nor does Defendant explain how, as to a product (Pantopaque) not sold since the 1980s, a single TV program in 1990, and a scattering of web pages maintained by persons claiming injury from it, comprise “extensive coverage in the media” likely to bring it to Plaintiffs’ attention in 2009, before he even knew he was suffering from arachnoiditis. (Br. at 11). Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 15 of 33 PageID: 343 10 symptoms of arachnoiditis, could have investigated arachnoiditis and its potential causes, easily done through an internet search, beginning in 2009” (Br. at 13, emphasis supplied) - symptoms which emerged some thirty-four years after the Pantopaque myelogram he received in 1975, and which are, and could have been associated with any number of other conditions and/or diseases besides Pantopaque-induced arachnoiditis. Moreover, the applicable principles of law Defendant Alcon ignores in both Trieschock, Stauffer, and even in its own Simon case, make it clear that it is a diagnosis, not just symptoms that are required to trigger accrual of the statute of limitations in a “creeping disease” case, under Pennsylvania law. Id. 3. Plaintiffs’ Express-Warranty Claims Are Also Timely. Defendant acknowledges (while misquoting) the Pennsylvania statutory discovery rule for accrual of Plaintiffs’ express-warranty claims, falls under the four-year statute of limitations. Specifically, an express-warranty “cause of action accrues when the breach is or should have been discovered.” (13 Pa.C.S. § 2725(b), emphasis added). For the same reasons set out above for tolling the statute of limitations on Plaintiffs’ products liability claims, Plaintiffs respectfully submit that, prior to the time he was diagnosed to be suffering from arachnoiditis, there was no reason whatsoever for Plaintiff John Sweeney to apprise himself of the express warranties Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 16 of 33 PageID: 344 11 of safety contained in Defendant’s seriously misleading labeling package inserts (reading, in part, “the incidence and the severity of the side effects . . . is but slightly greater than with ordinary lumbar puncture . . . there may be transient symptomatic reactions consisting of slight temperature elevations and increase in symptoms referable to a back condition”). Nor could any “breach” of this unknown legend have been known to the Plaintiffs before August 19th, 2014 at the earliest, when Mr. Sweeeney was first diagnosed to be suffering from arachnoiditis. (Id.). And lastly, again (contra Dfdt. Br. at 14), the fact that John Sweeney manifested lower-limb weakness and numbness in 2009 which, in retrospect, are symptoms likely associated with the arachnoiditis he was not actually diagnosed with until some five years later, did not place him on notice in 2009 either that he had arachnoiditis or, equally important, that his symptoms had been caused “by the misconduct of another.” For all of these reasons, Defendant Alcon’s Motion to Dismiss Plaintiffs’ express warranty claims based upon statute of limitations grounds should also be rejected. 4. In The Unlikely Event The Court Finds An Issue As To The Timeliness Of Any of Plaintiffs’ Claims, Under Pennsylvania Law That Issue Is For The Jury To Decide. As noted above, the principles of law which Defendant Alcon ignores, even in its own Simon case, make it clear that in all likelihood Plaintiffs will ultimately Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 17 of 33 PageID: 345 12 succeed in establishing the timeliness of their claims in this case, as a matter of law. At best for Defendant Alcon, however, even if a fact question is presented on the statute of limitations issue which it now asks this Court to decide solely on the pleadings, under Pennsylvania law that question should be left for the jury to decide. “Because a plaintiff's awareness of his injury and its cause is fact intensive, the tolling of the discovery rule is ordinarily a question for the jury.” Rowland v. Novartis Pharm. Corp., 34 F.Supp.3d 556, 567 (W.D. Pa. 2014), quoting Wilson v. El-Daief, 600 Pa. 161, 964 A.2d 354, 365-66 (Pa. 2009). “[O]nly where reasonable minds could not differ as to the determination of the plaintiff's awareness of the injury and its cause may a court rule on a discovery rule tolling question as a matter of law.” Id., quoting Wilson, 964 A.2d at 362. In light of these authorities, even if a fact question is presented on the statute of limitations issues Alcon now frivolously asks this Court to decide solely on the pleadings, under Pennsylvania law any issue that does exist regarding the timeliness of a plaintiff’s claims, particularly in so-called “creeping disease” cases like this one, is a question that should be left for the jury to decide. Conneen v. Amatek, Inc., 2017 U.S. Dist. LEXIS 29787, at **38-39 (E.D. Pa. March 2, 2017); Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 18 of 33 PageID: 346 13 Stauffer v. Ebersole, 385 Pa. Super. 306, at 312-313; Vitale, 184 Fed. Appx. 156, at 159. 4 B. PLAINTIFFS HAVE STATED VALID CLAIMS FOR RELIEF, AND DEFENDANTS’ MOTION TO DISMISS THEIR CLAIMS BASED UPON INSUFFICIENCY OF PLEADING SHOULD ALSO BE DENIED. Arguing that Plaintiffs have failed to state a valid claim for relief, Defendant begins by asserting, reasonably, that “a plaintiff must provide the grounds of his entitlement to relief which requires more than labels and conclusions.” (Dfdt. Br. at 15, quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), internal quotes omitted). As the Third Circuit has observed, however, Twombly left intact the principle that on a 12(b)(6) motion to dismiss, the facts alleged in the complaint must be taken as true, and viewed in a light most favorable to the plaintiff. Umland v. PLANCO Financial Services, Inc., 542 F.3d 59, 64 (3d Cir. 2008). However, when Defendant turns to Plaintiff’s negligent failure-to-warn and design defect claims, its argument on the pleadings morphs into a demand for “proofs.” Alcon contends that Plaintiffs should be required to “prove[sic] a product was defective”, “have some evidence”, “demonstrate defectiveness”, “show that a product failed to contain adequate warnings”, and “prove that the lack 4 The sole exception is Plaintiffs’ claim for breach of implied warranty. Plaintiffs concede that claim is time-barred under Pennsylvania law. Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 19 of 33 PageID: 347 14 of or insufficient warning was the proximate cause of plaintiff’s injury.” (Dfdt. Br. at 17-18, 19, emphasis supplied). To support this disingenuous leap from “pleadings” to “proofs,” in support of its pending Motion Alcon then proceeds to rely upon cases involving summary judgment motions and/or trial verdicts, rather than motions for dismissal on the pleadings, such as Ocean Barge Trans. Co. v. Hess Oil V.I. Corp., 726 F.2d 121 (3d Cir. 1984) (appeal of trial verdict); Pusey v. Becton Dickinson & Co., 794 F.Supp.2d 551 (W.D. Pa. 2011) (summary judgment motion); Wright v. Ryobi Technologies, Inc, 175 F.Supp.3d 439 (E.D. Pa. March 30, 2016) (summary judgment motion). Thus, at the outset, Defendant’s arguments in support of its Motion to Dismiss based upon so-called “pleading” insufficiency, are also fundamentally flawed, because Alcon relies almost exclusively upon cases that have nothing to do with “pleading.” Once Defendant’s disingenuous leap from “pleadings” to “proofs” is exposed, however, it becomes immediately clear that Plaintiffs’ claims in this case have been adequately pleaded. 1. Plaintiffs Have Stated A Valid Claim Based Upon Failure To Adequately Warn Of The Dangers Of Pantopaque Myelography. Defendant seeks to undermine the validity of Plaintiffs’ failure to warn claim in this case, by (misquoting Abbent) suggesting that because “Plaintiffs’ alleged injury - arachnoiditis - was included[sic] in the warnings for Pantopaque since 1969” (Dfdt. Br. at 10), Plaintiffs cannot assert a valid failure to warn claim. This Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 20 of 33 PageID: 348 15 assertion, however, ignores completely the central issue presented by the “failure to warn” claim at issue in this case: Plaintiffs’ contention that the warnings related to arachnoiditis were inadequate, not that those warnings were nonexistent. (Third Amd. Compl. ¶ 27). While Alcon declines to produce or recite the actual language of its “post- 1969” Pantopaque warnings, since those warnings were included in the Pantopaque package inserts, those package inserts are incorporated by reference into Plaintiffs’ Third Amended Complaint, and this Court can take judicial notice of the contents of those package inserts, as well as of the publicly circulated statements of the FDA related to them. For example, it is a matter of public record that, in 1969, the FDA requested that Pantopaque distributor Lafayette Pharmacal (Defendant Alcon’s predecessor in interest, and formerly a defendant in this action), add to Pantopaque product inserts, the following warning: “ADVERSE REACTIONS: “A. Severe arachnoiditis producing headache, fever, meningismus, pains in the back and extremities and elevations in the white blood count and the protein content of the CSF [cerebrospinal fluid].” In fact, that warning never appeared in Pantopaque labeling. Instead, at the time of Plaintiff John Sweeney’s 1975 myelogram, and as late as 1980, five (5) years after he received that myelogram, package inserts sold with Pantopaque Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 21 of 33 PageID: 349 16 contained a watered-down warning which, while containing the phrase “severe arachnoiditis”, minimized its risks in the extreme. Moreover, instead of putting that warning in the lead paragraph of “Adverse Reactions”, as the FDA had requested, Pantopaque’s manufacturers buried it in the fourth paragraph under that heading, following vague and groundless reassurances based on “clinical trials”: “Adverse Reactions: “Clinical reports indicate that the incidence and the severity of the side effects following Pantopaque myelography with aspiration of the medium is but slightly greater than with ordinary lumbar puncture [i.e. without injecting any contrast dye]. “In 10-30% of such cases there may be transient symptomatic reactions consisting of slight temperature elevations and increase in symptoms referable to a back condition. “When the medium is not removed, similar transient side effects occur with a slight elevation of temperature in a greater percent of patients. To reduce the reactions to a minimum, Pantopaque should be removed by aspiration after myelography. “Occasional severe arachnoiditis producing headache, meningismus [flu-like symptoms], pains in the back and extremities and elevations in the white blood count and the protein content of the cerebrospinal fluid. The incidence and severity of arachnoiditis are generally increased when active subarachnoid bleeding has been induced by the lumbar puncture.” (Pantopaque package inserts, 1969-1980, emphasis supplied). Notably absent from the language in these package inserts, despite the Defendants’ knowledge of it since as early as 1945, was any warning of the link between Pantopaque myelography and “adhesive arachnoiditis,” the long-term, Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 22 of 33 PageID: 350 17 debilitating, and incurable condition Plaintiff John Sweeney ultimately developed, as the result of the Pantopaque myelogram administered to him in 1975. (Third Amd. Compl., ¶¶ 11-22). Simon v. Wyeth Pharm., Inc., 989 A.2d 356, cited by Defendant Alcon, is instructive on this point as well. There, the Pennsylvania court found that merely mentioning a risk of breast cancer in product labeling, by vaguely reciting that women had come down with cancer in clinical trials of the product, and even that the product produced marked increases in mammary cancer in laboratory dogs, “failed to disclose to physicians or patients” the actual risk of using the medication, when those facts were surrounded by contrary, reassuring language. (Id., 989 A.2d at 361-362). As noted above, there were similar, false reassurances included in the language of the Pantopaque package inserts. (e.g., “side effects…but slightly greater than with ordinary lumbar puncture…”; “transient side effects”; “occasional severe arachnoiditis producing…[flu-like symptoms]”). Thus, again on the basis of one of its own cases, Defendant Alcon’s argument is refuted. In light of Simon, the existence of the numerous false reassurances in the Pantopaque package inserts, quoted above, is dispositive of its suggestion that mere mention of “arachnoiditis” undermines the validity of Plaintiffs’ failure to warn claim. Simon makes it clear that, in light of the false reassurances they also included, the mere Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 23 of 33 PageID: 351 18 mention of “arachnoiditis” in the Pantopaque package inserts which accompanied that product in 1975, when it was used on Plaintiff John Sweeney, does not preclude the assertion by Plaintiffs of a claim based upon the inadequacy of those warnings, under Pennsylvania law. (Dfdt. Br. at 10; cf., Simon v. Wyeth Pharm., Inc., 989 A.2d 356, at 361-362). 5 Once this misconception is corrected, it is immediately clear that Plaintiffs have alleged facts sufficient in their Third Amended Complaint to state a valid claim for failure to adequately warn of arachnoiditis, including Plaintiffs’ allegations that, whereas it was essential to remove the dye from a patient’s spine following myelography, in fact this was not possible (2nd Amd. Compl., ¶ 11); that “as early as 1945, articles in medical journals warned that the dyes used in Pantopaque were linked to a severely debilitating condition known as adhesive arachnoiditis” (id. ¶ 12); in alleging that Plaintiff John Sweeney was diagnosed to be suffering from “advanced adhesive arachnoiditis” on August 19 and October 2, 2014 (id. ¶¶ 18-19); in alleging that Defendants Alcon and Kodak “failed to adequately warn users of Pantopaque, or their patients, of the danger of the dyes used in that product and its design defects” (id. ¶ 28); and in alleging that, “[a]s a result of Defendants’ failure to warn, Plaintiff John M. Sweeney… sustained a 5 In light of this information, long available to Defendant Alcon, its assertions that “Plaintiff’s conclusory allegations simply are wrong” and that Plaintiffs’ physicians were “warned of the exact risk of alleged injury at issue at the time the product was used” (Dfdt. Br. at 20), are disingenuous at best.). Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 24 of 33 PageID: 352 19 disabling and painful adhesive arachnoiditis, requiring three surgeries, and resulting in gradual loss of the use of his legs and loss of bladder and bowel control, which injuries are ongoing, progressive in nature and are believed to be permanent.” (Id., ¶ 29; cf., Simon, 989 A.2d at 361-362). 2. Plaintiffs Have Stated A Valid Claim For Defective Design Of Pantopaque. By the same token, taking the facts alleged in the complaint as true, and viewed in a light most favorable to the plaintiff (Umland v. PLANCO Financial Services, Inc., 542 F.3d 59, 64), the facts alleged in support of Plaintiff’s design- defect claim, as set out in the Third Amended Complaint, also clearly state a valid claim based upon Defendant Alcon’s defective and negligent design of Pantopaque. The allegations of the Third Amended Complaint asserting that claim include the following: “¶ 10. . . . Pantopaque penetrates to the entire spinal canal, is not absorbable, and must be removed by aspiration from the spinal canal, which is usually not fully successful and leaves dye in the canal, causing injury. “¶ 11. As early as 1945, articles in medical journals warned that the dyes used in Pantopaque were linked to a severely debilitating condition known as adhesive arachnoiditis. Other studies showed the dyes melted polystyrene cups and corroded floor tiles. … “¶ 19. Plaintiff John M. Sweeney . . . conducted an internet search which disclosed to him, for the first time, a causal link between his arachnoiditis, his symptoms of progressive weakness, numbness, falling and pain on the one hand, and exposure to Pantopaque on the other. Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 25 of 33 PageID: 353 20 “¶ 20. In or about October 2015, Mr. Sweeney consulted a neurosurgeon in Miami, Florida who confirmed that, indeed, mostly likely his progressive loss of lower extremity function resulted from his exposure to Pantopaque. By that time, Mr. Sweeney was diagnosed with end-stage adhesive arachnoiditis.” Third Amended Complaint, ¶¶ 10, 11, 19, 20 (emphasis supplied). In short, Plaintiffs allege in the Third Amended Complaint that Pantopaque causes arachnoiditis (3d Amd. Compl. ¶¶ 10-11), and more specifically, caused John Sweeney’s arachnoiditis (id. ¶¶ 19- 20). Through medical literature available to Defendant’s scientific/medical officers, Pantopaque’s history of causing arachnoiditis was known to Defendant since 1945 (id. ¶ 11). In the decades between insertion of Pantopaque into the marketplace and John Sweeney’s 1975 myelogram, defendant maintained its design such that, whereas it was essential to remove the dye from a patient’s spine following myelography, in fact this was not possible (id. ¶ 10). In other words, throughout its 45-year market history, Pantopaque was always unreasonably dangerous in actual use, and this fact was known to Defendant for years before John Sweeney’s 1975 exposure (through, e.g., studies showing that it melted polystyrene cups and corroded floor tiles, 3d Amd. Compl. ¶ 11). Furthermore, Defendant’s maintenance of the same unchanged design for Pantopaque during those decades, despite its known dangers, was negligent and careless. (Id. ¶ 24). Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 26 of 33 PageID: 354 21 For all these reasons, Plaintiffs have amply alleged a valid claim against Defendant Alcon, based on Pantopaque’s negligence in its defective design of Pantopaque, as well. 3. Plaintiffs Have Stated A Valid Claim For Breach of Express Warranty. Defendant Alcon claims that, under Pennsylvania law, “a manufacturer of drugs or medical devices shall not have liability under a breach of warranty cause of action.” (Dfdt. Br. at 22, citing Cogswell v. Wright Med. Technology, Inc., 2015 U.S. Dist. LEXIS 92461 (W.D. Pa. 2015)). In fact, however, many courts in Pennsylvania have recognized the validity of express-warranty claims against manufacturers of prescription drugs and devices. See, e.g., Kee v. Zimmer, Inc., 871 F. Supp. 2d 405 (E.D. Pa. 2012); Horsmon v. Zimmer Holdings, Inc., 2011 U.S. Dist. LEXIS 130415, at *3-4 (W.D. Pa. 2011); Esposito v. I-Flow Corp., 2011 U.S. Dist. LEXIS 122570, at *6 (E.D. Pa. 2011); Kester v. Zimmer Holdings, 2010 U.S. Dist. LEXIS 59869, at *10-11 (W.D. Pa. 2010); Parkinson v. Guidant Corp., 315 F. Supp. 2d 741, 751-52 (W.D. Pa. 2004); Davenport v. Medtronic, Inc., 302 F.Supp.2d 419, 440-41 (E.D. Pa. 2004). Even Cogswell, on which Defendant relies, observes that several unreversed courts sitting in Pennsylvania have found such an action to lie. (Id., 2015 U.S. Dist. LEXIS 92461, at *10 (W.D. Pa. 2015). In light of this division, Plaintiffs Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 27 of 33 PageID: 355 22 respectfully submit this Court should not dismiss their express-warranty claims, at least until more definitive Pennsylvania rulings have been issued. Defendant Alcon also contends that the Third Amended Complaint “is devoid of even the most basic information concerning this purported warranty - i.e., the actual content of the warranty; who made it and when; and where, in what media and under what circumstances it was made” (Dfdt. Br. at 22) . As noted above, however, because the Pantopaque package inserts are incorporated by reference into the Third Amended Complaint, the language included in those package inserts is incorporated by reference, and that language supplies the “warranty” information Defendant alleges to be missing, as follows: “Adverse Reactions: “Clinical reports indicate that the incidence and the severity of the side effects following Pantopaque myelography with aspiration of the medium is but slightly greater than with ordinary lumbar puncture [i.e. without injecting any contrast dye]. “In 10-30% of such cases there may be transient symptomatic reactions consisting of slight temperature elevations and increase in symptoms referable to a back condition. “When the medium is not removed, similar transient side effects occur with a slight elevation of temperature in a greater percent of patients. To reduce the reactions to a minimum, Pantopaque should be removed by aspiration after myelography. “Occasional severe arachnoiditis producing headache, meningismus [flu-like symptoms], pains in the back and extremities and elevations in the white blood count and the protein content of the cerebrospinal fluid. The incidence and severity of arachnoiditis are generally Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 28 of 33 PageID: 356 23 increased when active subarachnoid bleeding has been induced by the lumbar puncture.” (Pantopaque package inserts, 1969-1980, emphasis supplied). Representations of this sort clearly amount to an express warranty under Pennsylvania law. See, e.g., McLaughlin v. Bayer Corp., 172 F.Supp.3d 804, LEXIS *43 (E.D. Pa. 3/22/16) (citing numerous cases for the proposition that an express warranty is “created by a seller through any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain”) (citations omitted, emphasis supplied). 4. Plaintiffs Have Stated A Valid Claim For Loss Of Consortium On Behalf Of Plaintiff Regina Sweeney. Relying purely on the supposed insufficiency of Plaintiffs’ other claims, Defendant Alcon also argues that Plaintiff Regina Sweeney’s claims for loss of consortium, society and services based on her husband’s advancing and grievous disability “must also be dismissed.” For all of the reasons set out above, however, demonstrating that Plaintiffs’ other claims are actually highly meritorious, Defendants’ arguments for dismissal of Plaintiffs’ per quod claims must also fail. 5. Plaintiffs Specifically Name Alcon In Their Allegations, And Thus Have Adequately Provided Notice To Alcon Under Fed. R. Civ. P. 8. Citing readily distinguishable cases, Alcon next absurdly contends that, because the Complaint does not allege wrongs committed by Pantopaque manufacturer Eastman Kodak separately from those committed by Pantopaque Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 29 of 33 PageID: 357 24 manufacturer Alcon, Inc., the entire Complaint must be dismissed. (Dfdt. Br. at 24-26). Claiming that “Rule 8 requires that a pleading contain sufficient facts to give each[sic] defendant fair notice of each[sic] claim and the grounds upon which they rest” (id. at 25), Defendant attempts to rely, first, on Watkins v. ITM Records, 2015 U.S. Dist. LEXIS 96610 (E.D. Pa. 2015), a case in which the plaintiff alleged, as to fourteen (14) defendants, that “defendants are liable to plaintiff, copyright holder, to pay mechanical royalties” (first count); “defendants” committed “commercial exploitation of the Plaintiff’s music” (second count); defendants’ “unlawful action” caused “irreparable damage” (third count); and defendants’ “unlawful action has caused irreparable damage to the plaintiff" (fourth count). (Id., 2015 U.S. Dist. LEXIS 96610 at **7-8). As the Magistrate Judge in Watkins fairly observed, “these general allegations against 14 defendants make it impossible for me to home in on specific acts against any of the defendants, much less [dismissal movant] TWE.” (Id. at *7, emphasis supplied). These allegations in Watkins are clearly inapposite to the Third Amended Complaint at issue in this case, where (1) there are only two Defendants named; (2) it would be impossible for Plaintiffs to ascertain the precise role of each Defendant, in the absence of discovery; and (3) Defendant Alcon is well aware of Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 30 of 33 PageID: 358 25 its own role, as well as that of its predecessors in interest, in connection with the manufacture and sale of Pantopaque. Also inapposite is Grant v. Turner, 505 F. Appx. 107, 112 (3d Cir. 2012), a case cited by Defendant Alcon in which the court dismissed claims, under Fed. R. Civ. P. 9(b), against defendants collectively named as having made deliberate misrepresentations in a RICO fraud action. As the Turner court observed and this Court is aware, Rule 9(b) mandates a “heightened pleading standard” obligating the claimant “to plead the date, time, and place of the alleged fraud”. (Id., 505 F. Appx. at 111). As adverted to already, the Turner court, granting leave to amend, acknowledged that, as to the claimants’ misrepresentation and concealment allegations, exactly who did what would never come to light absent discovery. (Id. at 112). Most importantly, however, it is the “notice” pleading standard of Rule 8(a), Fed. R. Civ. P., not the “heightened” pleading standard of Rule 9(b), that is applicable to the Third Amended Complaint at issue in this case. In short, Defendant Alcon’s argument that its Motion to Dismiss should be granted because “the Complaint lumps all[sic] named defendants - Alcon and Eastman Kodak Company - together” (Dfdt. Br. at 26), is also devoid of merit. That argument is based upon inapposite cases which have no applicability whatsoever to factual allegations like those included in the Third Amended Complaint at issue in this case, and should be rejected as well. Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 31 of 33 PageID: 359 26 C. ALTERNATIVELY, IN THE UNLIKELY EVENT THE COURT DETERMINES THE THIRD AMENDED COMPLAINT TO BE DEFICIENT IN ANY RESPECT, PLAINTIFFS SHOULD BE GRANTED LEAVE TO AMEND. It is black-letter law in this Circuit that leave should be granted to amend a complaint to cure defective claims, unless such amendment would be inequitable or futile. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). Accordingly, in the unlikely event that the Court dismisses any of the claims included in Plaintiffs’ Third Amended Complaint, or the Court finds that Complaint to be deficient in any respect, Plaintiffs respectfully request leave to amend their Third Amended Complaint, to cure any such defect. Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 32 of 33 PageID: 360 27 III. CONCLUSION. On the basis of the foregoing, Plaintiffs respectfully submit that the pending Motion of Defendant Alcon Laboratories, Inc., for Dismissal of the Plaintiffs’ Third Amended Complaint, should be denied in its entirety. Alternatively, Plaintiffs respectfully request that, if the Court finds the said Complaint to be deficient in any respect, the Court issue an Order granting Plaintiffs leave to Amend, to cure any such defect. Respectfully submitted, LAW OFFICES OF G. MARTIN MEYERS, P.C. ATTORNEYS FOR PLAINTIFFS DATED: June 30, 2017 By: s/Gary Martin Meyers Gary Martin Meyers, Esq. (#5833) Case 2:16-cv-04860-ES-MAH Document 44 Filed 06/30/17 Page 33 of 33 PageID: 361 LAW OFFICES OF G. MARTIN MEYERS, P.C. 35 West Main Street, Suite 106 Denville, New Jersey 07834 (973) 625-0838 Fax (973) 625-5350 gmm@gmeyerslaw.com Attorneys for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY : JOHN M. SWEENEY and REGINA Case 2:16-cv-04860-ES-MAH SWEENEY, his Wife, : Hon. Esther Salas, U.S.D.J. Plaintiffs, : v. : ALCON LABORATORIES, INC, : EASTMAN KODAK COMPANY, ABC CORPORATIONS 1-10 (a series : of fictitious corporations), and JOHN DOES 1-15 (a series of fictitious names), : CERTIFICATE OF SERVICE Defendants. : I, Gary Martin Meyers, Esq., hereby certify that on June 30, 2017, I caused to be served true and correct copies of Plaintiffs’ Memorandum of Law in Opposition to Defendant Alcon Laboratories, Inc.’s Motion to Dismiss, on counsel for defendants, Aaron Van Nostrand, Esq. for defendant Case 2:16-cv-04860-ES-MAH Document 44-1 Filed 06/30/17 Page 1 of 2 PageID: 362 Alcon, Inc., and Amy L. Hansell Esq., via ECF, and The Honorable Esther J. Salas, U.S.D.J. via ECF and overnight mail. I certify under penalty of perjury under the laws of the United States of America that the foregoing is true and correct and that this Certification was executed on June 30, 2017, in Denville, New Jersey. s/ Gary Martin Meyers GARY MARTIN MEYERS (5833) Case 2:16-cv-04860-ES-MAH Document 44-1 Filed 06/30/17 Page 2 of 2 PageID: 363