ST. LOUIS — Surviving spouses of men who allegedly died as a result of exposure to radioactive substances mishandled by Mallinckrodt may continue to pursue their claims as wrongful death actions.

U.S. District Judge Audrey Fleissig of the Eastern District of Missouri on Aug. 8 denied a defense motion to dismiss the amended complaints of spouses of Leon Anderson, William Donaldson and William McHenry who were the original plaintiffs in the litigation.

The spouses were substituted as plaintiffs in 2016 following their deaths. Each of the claims alleges public liability action under the Price-Anderson Act (PAA), a law that governs legal liability related to nuclear incidents. 

Litigation against the biopharmaceutical company alleges exposure to hazardous, toxic and radioactive substances. 

After the spouses replaced the decedents as plaintiffs, Mallinckrodt had sought to dismiss the claims on a number of procedural grounds, including that the spouses lacked standing because they were not appointed by a state probate court to be personal representatives of their decedents' estates and that plaintiffs never pleaded that the decedents died from the injuries alleged in the complaints and it was too late to do so because the state's wrongful death statute has a three-year statute of limitations. Additionally, the company wanted to dismiss the litigation because the amended complaints that were allowed by the court in June of this year "do not relate back to the decedents’ original complaints because the spouses of the decedents are new parties asserting new causes of action, and they have not shown any justification for the delay in adding the allegations that the decedents died as a result of their injuries."

Mallinckrodt further sought to dismiss their claims, arguing that death certificates and questionnaires produced during discovery did not provide sufficient notice that the spouses were going to pursue wrongful death claims. The company also argued that allowing "untimely" amended complaints to go forward would be unfairly prejudicial "by introducing uncertainty into this litigation and requiring Defendants to prepare for attempts by other Plaintiffs to add untimely wrongful death claims." 

Fleissig wrote that the causes of action in the cases were, and still are, PAA public liability actions for damages resulting from a nuclear incident.

"The cause of action has not changed," she wrote. 

"Although it is a close question, the Court finds that the amended complaints here arise out of the same operative facts as the original complaints," Fleissig wrote.

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