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Complete Text of Vincent’s Duragesic Lawsuit

Posted in Duragesic / Fentanyl

Here is the complete text of Thomas Vincent’s first amended complaint against ALZA and the rest of the manufacturers of the Duragesic patch.  Like many other Duragesic lawsuits, this one alleges the patch is both defectively designed and defectively manufactured.

Pursuant to Mississippi Code § 11-7-13, Plaintiff Thomas Vincent (“Plaintiff”), individually and on behalf of the wrongful death beneficiaries of Rose M. Vincent (“Decedent”), files this Original Complaint and Jury Demand against ALZA Corporation, Janssen Pharmaceutica Products, L.P., Janssen, L.P., Janssen Pharmaceutica, Inc., and Ortho-McNeil-Janssen Pharmaceuticals, Inc. (all wholly owned subsidiaries of Johnson and Johnson Corporation) (collectively, the “Defendants”), and for cause of action would show:

PARTIES

1.

Plaintiff Thomas Vincent and Decedent were adult resident citizens of Pascagoula, Jackson County, Mississippi, when Decedent was prescribed the Patch, filled the Patch, consumed the Patch, and at the time of Decedent's death. Plaintiff Thomas Vincent has moved since the time of Decedent's death and is an individual residing in Virginia. Plaintiff Thomas Vincent is Decedent's husband and next of kin. Under Mississippi Code § 11-7-13, Plaintiff brings this action as Decedent's next of kin, individually, and on behalf of Decedent's wrongful death beneficiaries and heirs-at-law, including, without limitation, Allen Phillip Lee (Decedent's son).

2.

Defendant ALZA Corporation (“ALZA”), a wholly owned subsidiary of Johnson & Johnson Corporation, was and is a corporation organized and existing under the laws of the State of Delaware. It has done and is doing business in Mississippi. ALZA may be served with process by delivering a copy of the summons and the complaint upon its registered agent, C T Corporation System at 818 West 7th Street, Los Angeles, CA 90017-3407 or any other officer or managing agent at such address.

3.

Defendant Janssen Pharmaceutica Products, LP, a wholly owned subsidiary of Johnson & Johnson Corporation, is a limited partnership organized and existing under the laws of the State of New Jersey. It has done, and is doing business in Mississippi. Janssen Pharmaceutica Products, LP may be served by delivering a copy of the summons and the complaint to Janet Vergis at 1125 Trenton-Harbourton Road, Titusville, NJ 08560, or any other officer or managing agent at such address.

4.

Defendant Janssen, LP, a wholly owned subsidiary of Johnson & Johnson Corporation, is a limited partnership organized and existing under the laws of the State of New Jersey. It has done, and is doing business in Mississippi. Janssen, LP may be served by delivering a copy of the summons and the complaint to Janet Vergis 1125 Trenton-Harbourton Road, Titusville, NJ 08560, or any other officer or managing agent at such address.

5.

Defendant Janssen Pharmaceutica, Inc., a wholly owned subsidiary of Johnson & Johnson Corporation, is a corporation organized and existing under the laws of the State of New Jersey. It has done, and is doing business in Mississippi. Janssen Pharmaceutica, Inc. may be served by delivering a copy of the summons and the complaint to Janet Vergis at 1125 Trenton-Harbourton Road, Titusville, NJ 08560, or any other officer or managing agent at such address.

6.

Defendant Ortho-McNeil-Janssen Pharmaceuticals, Inc., a wholly-owned subsidiary of Johnson & Johnson Corporation, is a corporation organized and existing under the laws of the State of Pennsylvania. It has done and is doing business in Mississippi. Ortho-McNeil-Janssen Pharmaceuticals, Inc. may be served by delivering a copy of the summons and the complaint to Janet Vergis, at 1125 Trenton-Harbourton Road, Titusville, NJ 08560, or any other officer or managing agent at such address.

JURISDICTION AND VENUE

7.

Pursuant to 28 U.S.C. § 1332, this Court has jurisdiction over this case because it is a lawsuit between parties of diverse citizenship and the amount in controversy exceeds $75,000 Venue is proper in this Court under 28 U.S.C. § 1391 because a substantial part of the events or omissions giving rise to the claim occurred in this district, including, without limitation: (1) Decedent was a resident of Mississippi at the time of her death; (2) she was prescribed a fentanyl patch for pain in Mississippi by a doctor practicing in Mississippi; and (3) the Defendants, jointly and severely, supplied a defective Duragesic fentanyl patch to a pharmacy in Mississippi; (4) Decedent purchased the defective fentanyl patch in Mississippi when she filled her prescription for fentanyl patches; and (5) the defective fentanyl patch that Decedent purchased in Mississippi caused Decedent's death.

JURY DEMAND

8.

Pursuant to Federal Rule of Civil Procedure 38, Plaintiffs demand a jury trial on all issues.

FACTS

9.

This suit arises out of the wrongful death of Decedent, Rose Marie Vincent, due to the wrongful conduct of Defendants, each of them, jointly and severely. Decedent, while a patient of Dr. Robert Holbert, was prescribed and given a prescription for 100 mcg Duragesic (fentanyl transdermal system) patches. Decedent was using a 100 mcg Duragesic patch (the “Vincent Patch”) at the time of her death and it was the direct and proximate cause of her death. The Vincent Patch was designed, manufactured, marketed and/or distributed by the Defendants. Duragesic (fentanyl transdermal system) patches also came in other sizes such as 25, 50 and 75 mcg. As referenced herein, the “Patch” shall refer to Duragesic (fentanyl transdermal system) patches of any size unless specified otherwise.

10.

The Patch is a multi-layer system containing a gel which has the drug fentanyl in it. Fentanyl is an extremely dangerous drug that is at least 80 times stronger than morphine. Fentanyl is classified as a Schedule II controlled substance by the FDA and is generally used to relieve pain.

11.

The Patch is applied by the patient and delivers fentanyl though the patient's skin. The Defendants design, manufacture, market, and sell the Patch with the intention that it will release a certain amount of fentanyl into a patient at a certain rate, and thus produce a certain level of fentanyl in the blood of the patient. In other words, if a Patch functions as intended and it is properly used by the patient, the patient should not receive a harmful dose of fentanyl.

12.

The Vincent Patch was manufactured at Defendant ALZA's facility in Vacaville, California. The Vincent Patch was made utilizing a reservoir design, meaning that the fentanyl gel is inserted into a reservoir located between two of the Patch's layers.

13.

Defendants, each of them, jointly and severly, are believed to be responsible for negligent, careless, and intentional acts, and/or omissions or negligence in some other manner to include reckless disregard for the safety of Decedent, and as a result thereof proximately and/or directly caused and/or contributed to Decedent's injuries, losses and damages, and ultimate wrongful death, as more fully described herein.

14.

Prior to and at the time of the manufacture of the Vincent Patch, The Defendants knew that they were producing defective patches that leaked. Prior to and at the time of the manufacture of the Vincent Patch, the Defendants knew that they were producing defective patches that would produce levels of fentanyl in patients above the intended and designed level. Prior to and at the time of the manufacture of the Vincent Patch, the Defendants knew or should have known that they were producing defective patches that were killing patients and/or injuring patients. Despite the foregoing, the Defendants, with reckless and/or intentional disregard for the safety of patients, continued, and continue to this day, to manufacture fentanyl patches which kill patients because of the massive revenue being generated by their sale.

15.

The Patch is unreasonably dangerous because it can and does leak and/or because it otherwise causes lethal levels of fentanyl to be transferred into patients.

16.

Another design for Fentanyl patches existed at the time the Vincent Patch was manufactured called the “matrix” design. At all relevant times, the Defendants could have made fentanyl patches of a matrix design, as opposed to a reservoir design. The matrix technology cannot leak fentanyl. A sealed multi-laminate design could have also been used.

17.

In 2004, the Defendants recalled numerous lots of Patches because of leaking defects. Also during 2004, the FDA investigated the Defendants' manufacturing practices and quality control/assurance policies and procedures and found them to be deficient. In 2008, the Defendants again recalled patches on two separate occasions.

18.

At the time the FDA approved the initial proposed labeling for the Patch, it did not have full knowledge of the dangers inherent in the use of the product, potential defects in the product or the nature and degree of the risks accompanying its intended use. Similarly, at the time the FDA approved revised labeling proposed by the

Defendants, it did not have full knowledge of product defects and the dangers inherent in the use of the product or the nature and degree of the risks accompanying its intended use. The FDA lacked such information because the Defendants failed to provide the FDA with existing evidence of product defects and the risks associated with the Patch as such evidence was obtained or should have been obtained. For these reasons, the FDA has never had an opportunity to assess the current labeling for the Patch in light of existing evidence.

19.

Decedent was prescribed the Patch by Dr. Holbert for pain. Decedent filled the prescription on April 4, 2006. Decedent died on April 6, 2006. The cause of death on the autopsy report is fentanyl toxicity.

CAUSES OF ACTION

COMMON ALLEGATIONS FOR STRICT PRODUCT LIABILITY COUNTS

20.

Plaintiff incorporates by reference the consistent allegations of the preceding paragraphs.

21.

The Defendants, each of them, jointly and severely, are liable under Mississippi Code § 11-1-63 (codifying §§402A and 402B of the Restatement of Torts 2d). The Defendants at all times material hereto engaged in the business of creating, designing, formulating, manufacturing, producing, assembling, selling, marketing, and/or supplying the Patch, including the Vincent Patch. The Vincent Patch was in a defective condition at the time it was created, designed, formulated, manufactured, sold, and/or marketed by the Defendants and at the time it left the Defendants' possession because: (1) it was defective in manufacture as described in Mississippi Code § 11-1-63(a)(i)(1); (2) it was defective because it failed to contain adequate warnings or instructions as described in Mississippi Code § 11-163(a)(i)(2); (3) it was defective in design or formulation as described in Mississippi Code § 11-1-63(a)(i)(3); and, (4) it was defective because the product breached an express warranty or failed to conform to other express factual representations upon which the Decedent justifiably relied in electing to use the product as described in Mississippi Code § 11-1-63(a)(i)(4). Each of the Defendants exercised substantial control over the design, testing, manufacture, packaging and labeling of the Patch.

22.

The defective condition rendered the product unreasonably dangerous to its users, including Decedent.

23.

Decedent was unaware of the defective condition of the Patch at the time she used the product in the manner and purpose for which it was intended. Specifically, Decedent did not know about a defect with the Patch that was inconsistent with her safety and did not appreciate the danger of the defect with the Patch. Consequently, Decedent did not and could not have deliberately and voluntarily choose to expose herself to the danger in such a manner to register assent on the continuance of the dangerous defective condition of the Patch.

24.

The defective and unreasonably dangerous condition of the Vincent Patch was the proximate cause of Decedent's death, pain and suffering prior to her death, and all other damages described herein.

25.

The Vincent Patch was in the control of the Defendants at the time the defect occurred.

26.

Further, the injury sustained by Decedent, fentanyl toxicity, was the exact type of injury that a defective Patch causes.

27.

The Vincent Patch reached Decedent without any substantial change in its condition.

28.

The Vincent Patch presented an unreasonable risk of injury in that the risk was one which a reasonably prudent person having full knowledge of the risk would find unacceptable. Because of the nature of the ingredients and/or natural characteristics of the Vincent Patch, use of it involved substantial risk of injury. The exposure to risk of injury from the Vincent Patch was unreasonable considering a balancing of the dangers and benefits resulting from the product's use. Without limitation, the Vincent Patch was defective because it malfunctioned and did not perform as it was intended and designed to perform.

COUNT 1

STRICT LIABILITY FOR MANUFACTURING DEFECT VIOLATION OF MISSISSIPPI CODE § 11-1-63(a)(i)(1)

29.

Plaintiff incorporates by reference the consistent allegations of the preceding paragraphs.

30.

More specifically, the Vincent Patch was defective in manufacture and/or construction under Mississippi Code § 11-1-63(a)(i)(1) because, at the time it left the Defendants' control, it deviated in a material way from the manufacturer's specifications and/or from otherwise identical units manufactured to the same manufacturing specifications. Because of this manufacturing defect, the Vincent Patch delivered a greater dose of fentanyl than a properly functioning Patch is designed to give. This manufacturing defect rendered the Vincent Patch unreasonably dangerous and was the direct and proximate cause of Decedent's death, pain and suffering prior to her death, and all other damages described herein. Without limitation, the Vincent Patch was defective because it malfunctioned and did not perform as intended and designed. Without limitation, the Vincent Patch was defective because it had a seal defect.

COUNT 2

STRICT LIABILITY FOR FAILURE TO WARN VIOLATION OF MISSISSIPPI CODE § 11-1-63(a)(i)(2)

31.

Plaintiff incorporates by reference the consistent allegations of the preceding paragraphs.

32.

Pleading further and without waiver of the foregoing, the Vincent Patch was defective under Mississippi Code § 11-1-63(a)(i)(2) because it failed to contain adequate warnings or instructions.

33.

At the time the Vincent Patch left the Defendants' control, they knew or in light of reasonably available knowledge should have known about the dangerous condition of the Patch, including, without limitation, the risk that the Patch could cause a fentanyl overdose. Ordinary users of the Patch, such as Decedent, would not realize the dangerous condition of the Patch.

34.

The Vincent Patch was defective due to inadequate warnings and/or instructions because the Defendants, each of them, jointly and severly, failed to provide the warnings and/or instructions that a reasonable company in the same or similar circumstances would have provided with respect to the dangerous condition of the Patch (i.e., that communicated sufficient information about the dangers and safe use of the Patch, taking into account the characteristics of, and the ordinary knowledge common to, a physician or other licensed professional who might prescribe the Patch). Without limitation, the Defendants failed to warn about the risk that the Patch could give a patient a fentanyl level that far exceeds the level that the Patch is designed to give. Without limitation, the Defendants failed to provide adequate warnings regarding the risk of death from proper use of the Patch.

35.

Decedent did not know and did not have a reason to know about the dangers posed by the Patch. Specifically, the dangers posed by the product were unknown and were not open and obvious to users of the Patch. Moreover, there is no reason that the dangers posed by the Patch should have been known or open and obvious to the users of the product, taking into account the characteristics of, and the ordinary knowledge common to, the persons who ordinarily use the product.

36.

Each of the Defendants' failure to provide adequate warnings and/or instructions to Decedent, her doctor, her pharmacist, or other healthcare providers rendered the Patch unreasonably dangerous and was a direct and proximate cause of Decedent's death, pain and suffering prior to her death, and all other damages described herein.

COUNT 3

STRICT LIABILITY FOR DESIGN DEFECT VIOLATION OF MISSISSIPPI CODE § 11-1-63(a)(i)(3)

37.

Plaintiff incorporates by reference the consistent allegations of the preceding paragraphs.

38.

Pleading further and without waiver of the foregoing, the Vincent Patch was defective under Mississippi Code § 11-1-63 (a)(i)(3) because it was designed in a defective manner.

39.

Decedent's fentanyl overdose and resulting death were not caused by an inherent characteristic of the Patch which is a generic aspect of the product that could not be eliminated without substantially compromising the product's usefulness or desirability and which was recognized by the ordinary person with the ordinary knowledge common to the community. To the contrary, the Defendants could have eliminated the unreasonably dangerous character of the Patch without substantially impairing its usefulness or desirability.

40.

Each of the Defendants knew, or in light of reasonably available knowledge or in the exercise of reasonable care should have known, about the unreasonably dangerous condition of the Patch that caused Decedent's fentanyl Patch to be defective, which defect ultimately resulted in Decedent's death.

41.

The Vincent Patch failed to function as expected and there existed a feasible design alternative that would have, to a reasonable probability prevented Decedent's fentanyl overdose and resulting death without impairing the utility, usefulness, practicality or desirability of the Patch to its users or consumers. Specifically, the Defendants could have utilized the matrix technology or the sealed multi-laminate design to manufacture the Patch instead of the reservoir technology. These technologies are safer alternative designs in that they are associated with fewer defects involving seal integrity and the matrix technology was even in use by the Defendants, and/or others, to manufacture fentanyl patches at the time the Vincent Patch was manufactured.

42.

This aforementioned design defect rendered the Vincent Patch unreasonably dangerous and was a proximate cause of Decedent's death, pain and suffering prior to her death, and all other damages described herein.

COUNT 4

BREACH OF EXPRESS WARRANTY VIOLATION OF MISSISSIPPI CODE § 11-1-63(a)(i)(4)

43.

Plaintiff incorporates by reference the consistent allegations of the preceding paragraphs.

44.

Pleading further and without waiver of the foregoing, the Vincent Patch was defective under Mississippi Code § 11-1-63(a)(i)(4) because it breached an express warranty or failed to conform to other express factual representations upon which Decedent justifiably relied in electing to use the product. Without limitation, the Vincent Patch did not conform to each of the Defendants' representations concerning the maximum blood concentration of fentanyl that would result from use of the Patch.

45.

The Vincent Patch's failure to conform to each of the Defendants' representations rendered the Vincent Patch unreasonably dangerous and was a direct and proximate cause of Decedent's death, pain and suffering prior to her death, and all other damages described herein.

46.

For these reasons, the Defendants, each of them, jointly and severally, are strictly liable under applicable products liability law without regard to proof of negligence.

COUNT 5

NEGLIGENCE

47.

Plaintiff incorporates by reference the consistent allegations of the preceding paragraphs.

48.

Each of the Defendants, jointly and severely, had a duty to exercise reasonable care in the design, manufacture, marketing, sale, and/or distribution of the Patch into the stream of commerce, including, without limitation, a duty to provide adequate warnings and instructions, including, without limitation, a duty to assure that the Patch did not cause users to suffer from unreasonable, dangerous side effects, including death. Each of the Defendants failed to exercise ordinary care in the design, manufacture, marketing, sale, testing, quality assurance, quality control and/or distribution of the Vincent Patch into interstate commerce, in that the Defendants knew or should have known that the Patch created a high risk of unreasonable, dangerous side effects, including death.

49.

More specifically, each of the Defendants' negligence, carelessness, intentional actions, and/or omissions, or negligence in some other manner in the design, manufacture, marketing, testing and sale of the Patch, includes, without limitation:

a. Providing misleading, inadequate and/or insufficient warnings regarding the Patch;

b. Failure to use due care in designing and manufacturing the Patch;

c. Failure to use proper materials reasonably suited to the manufacture of the Patch;

d. Failure to provide to the FDA information or data relevant to the safety of the Patch;

e. Failure to obtain easily accessible information or data relevant to the safety of the Patch;

f. Not performing sufficient testing of the Patch to confirm or ensure it was safe for its intended use;

g. Failure to use due care to test and inspect the Patch to determine its durability and functionality for the purpose for which it was intended;

h. Failure to ensure the Patch is made without seal or other defects;

i. Failure to conduct adequate testing and post-marketing surveillance to determine the safety of the Patch;

j. Misrepresenting that the Patch is safe for use;

k. Inadequate and/or insufficient inspection for defects;

1. Inadequate and/or insufficient research into the safety of the product prior to sale;

m. Inadequate and/or insufficient monitoring or research regarding adverse events;

n. Failure to list death as an adverse event;

o. Failure to provide adequate training, knowledge and/or information to physicians, distributors, or sellers of the product;

p. Marketing the Patch for unsafe uses;

q. Failure to adequately warn individuals of the dangerous and lethal side effects of the product;

r. Formulating and designing the product;

s. Making the product;

t. Inspecting and testing the product; and/or

u. Packaging the product.

50.

The negligent conduct of each of the Defendants, jointly and severely, as alleged above, was a was a direct and proximate cause of Decedent's death, pain and suffering prior to her death, and all other damages described herein.

COUNT 5

NEGLIGENT MISREPRESENTATION

51.

Plaintiff incorporates by reference the consistent allegations of the preceding paragraphs.

52.

Each of the Defendants knew or should have known that the Patch created a high risk of unreasonable, dangerous side effects, including that proper use of the Patch can cause death. Each of the Defendants failed to communicate to the FDA, Decedent, physicians, distributors, pharmacists, and/or the general public that proper use of the Patch could cause serious injury and/or death. Each of the Defendants instead communicated to all such persons/entities that the Patch was safe for use. Specifically, each of the Defendants' misrepresentations include, without limitation, a representation that the Patch would produce a maximum fentanyl blood concentration that was much lower that the fentanyl concentration found in Decedent's blood at the time of her death and a representation that the Patch was safe for use and a representation that the Patch can be used with other medications.

53.

Therefore, Plaintiff brings this cause of action against each of the Defendants, jointly and severely, under the theory of negligent misrepresentation for the following reasons:

a. The Defendants failed to warn of the defective condition of the Patch, as manufactured and/or supplied by the Defendants;

b. The Defendants, individually, and through their agents, representatives, distributors and/or employees, negligently misrepresented material and/or significant facts about the Patch in the course of their business in that they failed to exercise the degree of diligence and expertise the public is entitled to expect from the Defendants;

c. The above misrepresentations were made to the FDA, Decedent, physicians, pharmacists, as well as to the general public;

d. Decedent and others, including, without limitation, Decedent's physician(s) and her pharmacist(s), reasonably relied on the Defendants' misrepresentations; and

e. Consequently, Decedent's use of the Patch was to her detriment. The Defendants' negligent misrepresentations was a direct and proximate cause of Decedent's death, pain and suffering prior to her death, and all other damages described herein.

COUNT 6

BREACH OF THE IMPLIED WARRANTY OF FITNESS VIOLATION OF MISSISSIPPI CODE § 75-2-315

54.

Plaintiff incorporates by reference the consistent allegations of the preceding paragraphs.

55.

Each of the Defendants, jointly and severely, had reason to know the particular purpose for which their products were to be used. Each of the Defendants, jointly and severely, had reason to know that the buyer of their product was relying on the skill and judgement of each of the Defendants to select and/or furnish a suitable product. The product supplied by the Defendants was unfit for the particular purpose for which it was purchased. This lack of fitness for the product's purpose was a direct and proximate cause of Decedent's death, pain and suffering prior to her death, and all other damages described herein.

COUNT 7

BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY VIOLATION OF MISSISSIPPI CODE § 75-2-314

56.

Plaintiff incorporates by reference the consistent allegations of the preceding paragraphs.

57.

The Patch was subject to an implied warranty of merchantability. The Vincent Patch did not comply with the implied warranty of merchantability because: (1) it was unfit for the ordinary purposes for which such goods are used; and, (2) it failed to conform to the promises and/or affirmations of fact made on the container or label. Without limitation, the Vincent Patch was unfit for the the ordinary purposes for which such goods are used because it malfunctioned during normal use. Without limitation, the Vincent Patch failed to conform to the Defendants' representations provided on the container or label concerning the maximum blood concentration of fentanyl that would result from use of the Patch. Each of the Defendants' breach of the implied warranty of merchantability was a proximate cause of Decedent's death, pain and suffering prior to her death, and all other damages described herein.

ACTUAL MALICE OR GROSS NEGLIGENCE

58.

In addition to the foregoing, each of the Defendants acted with actual malice or gross negligence, which evidences a willful, wanton or reckless disregard for the safety of others. Each of the Defendants exercised substantial control over the aspects of the design, testing, manufacture, packaging or labeling of the Patch that caused Decedent's death and pain and suffering prior to her death. Furthermore, each of the Defendants had actual knowledge of the defective condition of the product at the time they supplied the Patch.

DAMAGES

59.

Plaintiff Thomas Vincent and the heirs-at-law of Decedent have endured pain, suffering, mental anguish, and emotional distress and as a direct and proximate cause of the negligence, carelessness, intentional actions and blatant disregard for the safety of Decedent for all of which Defendants, each of them, jointly and severely, are liable.

60.

Plaintiff Thomas Vincent would show that he has sustained a loss of consortium, past, present, and future, as a direct and proximate result of each of the Defendants' negligence, carelessness, intentional acts and blatant disregard for the safety of the Decedent. Plaintiff Thomas Vincent would show that he is entitled to recover damages from the Defendants, each of them, jointly and severely, for that loss.

61.

Plaintiff Thomas Vincent would show that he has lost the financial support of his wife, the decedent, as a direct and proximate result of the negligence, carelessness, intentional acts and blatant disregard for the safety of Decedent as described herein for all of which Defendants, each of them, jointly and severely are liable.

62.

Plaintiff Thomas Vincent would show that as a direct and proximate result of the negligence, carelessness, intentional acts and blatant disregard for the safety of Decedent as described herein for all of which Defendants, each of them, jointly and severely are liable, he and each of the heirs-at-law of Decedent have suffered and will continue to suffer and, therefore, seek compensation for loss of enjoyment of a relationship with Decedent.

63.

Plaintiff Thomas Vincent would show that as a direct and proximate result of the negligence, carelessness, intentional acts and blatant disregard for the safety of Decedent as described herein for all of which Defendants, each of them, jointly and severely are liable, he and each of the heirs-at-law of Decedent have suffered and will continue to suffer and, therefore, seek compensation for loss of the love and support of Decedent.

64.

Plaintiff Thomas Vincent would show that as a direct and proximate result of the negligence, carelessness, intentional acts and blatant disregard for the safety of Decedent as described herein for all of which Defendants, each of them, jointly and severely are liable, he and each of the heirs-at-law of Decedent have suffered and will continue to suffer and, therefore, seek compensation for loss of household services performed by Decedent.

65.

Plaintiff Thomas Vincent would show that as a direct and proximate result of the negligence, carelessness, intentional acts and blatant disregard for the safety of Decedent as described herein for all of which Defendants, each of them, jointly and severely are liable, he and each of the heirs-at-law of Decedent have suffered and will continue to suffer and, therefore, seek compensation the funeral expenses of Decedent.

66.

Punitive, Exemplary, and Other Damages

The conduct of each of the Defendants, jointly and severely, was committed with actual malice and/or gross negligence, carelessness, intentional acts and/or omissions and/or negligence in some other matter which evidences a willful, wanton or reckless disregard for the safety of others. Each of the Defendants, jointly and severely, exercised substantial control over the aspects of the design, testing, manufacture, packaging or labeling of the Patch that caused Decedent's death and her pain and suffering prior to death. Furthermore, each of the Defendants, jointly and severely, had actual knowledge of the defective condition of the product at the time they supplied the Patch. Therefore, Plaintiff seeks recovery of punitive, exemplary and any other additional damages that the law allows under the causes of action asserted above.

67.

Actual Damages

The unlawful acts and practices described above were a direct and proximate cause of Decedent's death and the damages claimed in this lawsuit. Therefore, Plaintiff, individually and on behalf of each of Decedent's wrongful death beneficiaries, seeks all damages available under Mississippi law including, without limitation: (a) the present net cash value of the Decedent's work life expectancy; (b) medical and funeral expenses; (c) the conscious pain and suffering of the Decedent; (d) loss of the Decedent's society and companionship; (e) husband's loss of consortium; (f) Plaintiff's and heirs-at-law's loss of love and support; (g) emotional distress of Plaintiff and heirs-at-law of decedent; and, (h) loss of household services.

CONDITIONS PRECEDENT

68.

All conditions precedent to Plaintiff's right to recover the relief sought herein have occurred or have been performed.

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that the Defendants be cited to appear and answer, and that the Court set the case for jury trial, and that judgment be entered against Defendants, jointly and severally, for the damages set forth herein above; for pre-judgment and post-judgment interest and costs of suit; and for such other and further relief to which Plaintiff may be justly entitled.