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`EXHIBIT A
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`Case 4:22-cv-00090-MLB Document 1-1 Filed 04/15/22 Page 1 of 10
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`EXHIBIT A
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`Case 4:22-cv-00090-MLB Document 1-1 Filed 04/15/22 Page 2 of 10
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`IN THE SUPERIOR COURT OF MURRAY COUNTY
`STATE OF GEORGIA
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`CLERK OF SUPERIOR COURT
`MURRAY COUNTY, GEORGIA
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`22-CI-0144
`JIM WILBANKS
`MAR 16, 2022 11:03 AM
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`
`STEPHEN SWINNEY, Individually and :
`in his capacities as Administrator of :
`the estate of Megan Swinney and as :
`next friend of minor child, H.S.
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`Plaintiff,
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`vs.
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`MYLAN PHARMACEUTICALS, INC.;
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`VIATRIS SPECIALTY, LLC; and
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`VIATRIS, INC.
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`Defendants.
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`CIVIL ACTION NO._______________
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`COMPLAINT FOR DAMAGES
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`COMES NOW Plaintiff, Stephen Swinney, in his capacities as Administrator of the
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`estate of Megan Swinney and as next friend of minor child, H.S., by and through counsel,
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`and files this Complaint for Damages and in support thereof show the Court the following:
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`PARTIES AND JURISDICTION
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`-1-
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`Stephen Swinney is the surviving spouse of the late Megan Swinney, and he is
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`domiciled in Murray County, Georgia. Stephen Swinney is also the duly appointed
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`Administrator of the estate of Megan Swinney, which is an open estate before the
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`Probate Court of Murray County, Georgia.
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`-2-
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`H.S. is the sole surviving child of the late Megan Swinney. H.S. is domiciled in
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`Murray County, Georgia where she resides with her natural father, Stephen Swinney.
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`EXHIBIT A
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`Case 4:22-cv-00090-MLB Document 1-1 Filed 04/15/22 Page 3 of 10
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`-3-
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`Defendant Mylan Pharmaceuticals, Inc. (“Mylan” hereafter) is a West Virginia
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`corporation, authorized to and conducting business within the state of Georgia.
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`Defendant is subject to the jurisdiction of this Court pursuant to the Georgia long-arm
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`statute, codified O.C.G.A. 9-10-91, by virtue of conducting business within the state of
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`Georgia and having committed one or more torts within the state of Georgia. Venue is
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`proper in this Court pursuant to O.C.G.A. 14-2-510(B)(4) by virtue of the events giving
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`rise to this cause of action sounding in tort having occurred within Murray County,
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`Georgia. This defendant may be served via its Georgia registered agent, CT Corporation
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`System, at 289 S. Culver Street, Lawrenceville, GA 30046.
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`-4-
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`Defendant Viatris Specialty, LLC is a company formed under the laws of the state
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`of Delaware with its principal office located in Pennsylvania, authorized to and
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`conducting business within the state of Georgia. Defendant is subject to the jurisdiction
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`of this Court pursuant to the Georgia long-arm statute, codified O.C.G.A. 9-10-91, by
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`virtue of conducting business within the state of Georgia and having committed one or
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`more torts within the state of Georgia. Venue is proper in this Court pursuant to
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`O.C.G.A. 14-2-510(B)(4) by virtue of the events giving rise to this cause of action
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`sounding in tort having occurred within Murray County, Georgia. This defendant may
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`be served via its Georgia registered agent, CT Corporation System, at 289 S. Culver
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`Street, Lawrenceville, GA 30046.
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`2
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`EXHIBIT A
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`Case 4:22-cv-00090-MLB Document 1-1 Filed 04/15/22 Page 4 of 10
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`-5-
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`Defendant Viatris, Inc. is a corporation formed under the laws of the state of
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`Delaware with its principal office located in Pennsylvania conducting business within the
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`state of Georgia. Defendant is subject to the jurisdiction of this Court pursuant to the
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`Georgia long-arm statute, codified O.C.G.A. 9-10-91, by virtue of conducting business
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`within the state of Georgia and having committed one or more torts within the state of
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`Georgia. Venue is proper in this Court pursuant to O.C.G.A. 14-2-510(B)(4) by virtue of
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`the events giving rise to this cause of action sounding in tort having occurred within
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`Murray County, Georgia. This defendant may be served via its Pennsylvania registered
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`agent, Brian Roman, at 1000 Mylan Boulevard, Canonsburg, PA, 15317.
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`FACTUAL ALLEGATIONS COMMON TO ALL COUNTS
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`-6-
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`On or about April 4, 2020 Megan Swinney suddenly lost consciousness at her
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`home where she died in front of her husband and young child, H.S. as her husband
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`attempted CPR until paramedics arrived.
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`-7-
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`Upon conducting an autopsy of her body, it was discovered that Megan
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`Swinney’s cause of death was acute Pulmonary Thromboembolism in her lungs
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`resulting from Deep Vein Thrombosis (“DVT”) or blood clot in layman’s terms.
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`-8-
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`At the time of her death and the preceding months, Megan Swinney was using
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`the prescription birth control patch, Xulane, which is a norelgestromin and ethinyl
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`estradiol transdermal medication. Xulane was previously a generic label, and the brand
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`3
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`EXHIBIT A
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`Case 4:22-cv-00090-MLB Document 1-1 Filed 04/15/22 Page 5 of 10
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`label was called Ortho Evra. By the time Megan Swinney was using this medication,
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`the manufacturer of Ortho Evra had ceased the sale of Ortho Evra within the United
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`States and had forfeited its brand label status and accompanying FDA obligations to
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`Defendants as the sole manufacturer and distributor of this medication within the United
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`States.
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`-9-
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`Xulane was manufactured and marketed by Defendant Mylan at the time it was
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`proscribed to and used by Ms. Swinney.
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`-10-
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`Upon information and belief, Mylan has subsequently merged or otherwise
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`changed its corporate identity to now be known as Viatris, Inc. and/or Viatris Specialty,
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`LLC. Upon information and belief, resulting from a merger and/or asset purchase
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`agreement, Viatris, Inc. and Viatris Specialty, LLC are jointly and severally liable in the
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`same manner as Mylan for all liability as alleged in this suit.
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`-11-
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`Unknown to Ms. Swinney or her physicians but known to Defendants prior to Ms.
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`Swinney’s death, Xulane posed an extreme risk of causing DVT among women with a
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`body mass index (BMI) of 30 kg/m2 or more.
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`-12-
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`Ms. Swinney’s body mass index was greater than 30 kg/m2 at all times during
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`which she was using the Xulane patch, and use of the Xulane patch directly and
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`proximately caused her death.
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`4
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`EXHIBIT A
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`Case 4:22-cv-00090-MLB Document 1-1 Filed 04/15/22 Page 6 of 10
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`-13-
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`The product label for Xulane at all times prior to Megan Swinney’s death contained
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`no warning that the product was dangerous for women with a BMI of 30 kg/m2 or more.
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`COUNT I – STRICT LIABILITY FOR PRODUCT MANUFACTURERS
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`-14-
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`At the time Defendants sold the Xulane patches to Ms. Swinney, the patches were
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`not merchantable and reasonably suited to the use intended, i.e. safely preventing
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`pregnancy in a woman with a body mass equal to or greater than 30 kg/m2. The
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`packaging was also defective for failing to warn against this known defect as discussed
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`more particularly in Count II herein.
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`-15-
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`The unsuitability and defective nature of the Xulane patches directly and
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`proximately caused Ms. Swinney’s death, pain and suffering, and emotion anguish for her
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`family.
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`-16-
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`Defendants are strictly liable for these damages as well as the medical expenses
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`incurred in relation to attempts to save Ms. Swinney’s life pursuant to O.C.G.A. §51-1-11.
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`COUNT II – FAILURE TO WARN
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`-17-
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`Prior to Ms. Swinney’s death, Defendants knew or should have known that Xulane
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`posed a serious risk of DVT and death to women whose body mass is 30 kg/m2 or greater.
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`5
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`EXHIBIT A
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`Case 4:22-cv-00090-MLB Document 1-1 Filed 04/15/22 Page 7 of 10
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`-18-
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`Defendants had a duty to warn Ms. Swinney and others of the known danger
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`pursuant to O.C.G.A. §51-1-11 and pursuant Georgia’s common-law negligence
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`obligation to exercise reasonable care.
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`-19-
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`Defendants’ breach of their duty to warn of the known danger directly and
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`proximately caused Ms. Swinney’s death, pain and suffering, and emotion anguish for her
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`family.
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`-20-
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`Defendants are strictly liable for these damages as well as the medical expenses
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`incurred in relation to attempts to save Ms. Swinney’s life.
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`COUNT III – FAILURE TO TIMELY REPORT ADVERSE DRUG EXPERIENCES
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`-21-
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`At all times after Defendants obtained the brand-label status for Xulane, they had
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`a duty to timely report adverse drug experiences to the Food and Drug Administration
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`(“FDA”) pursuant to 21 C.F.R. §310.305 and other statutes or regulations.
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`Upon information and belief Defendants received notice of adverse drug
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`-22-
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`experiences and failed to timely report them to the FDA.
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`-23-
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`The FDA’s reporting obligations were designed to protect consumers, and Ms.
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`Swinney was a member of the class intended to be protected.
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`6
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`EXHIBIT A
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`Case 4:22-cv-00090-MLB Document 1-1 Filed 04/15/22 Page 8 of 10
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`The type of harm Ms. Swinney suffered was the type of harm that the reporting
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`-24-
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`obligations were designed to prevent.
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`-25-
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`Defendants’ failure to timely report adverse drug experiences amounts to
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`negligence per se and directly and proximately caused Ms. Swinney’s death, pain and
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`suffering, and emotion anguish for her family.
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`-26-
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`Defendants were negligent per se and are liable for these damages as well as the
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`medical expenses incurred in relation to attempts to save Ms. Swinney’s life.
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`COUNT IV – NEGLIGENT RESEARCH AND TESTING
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`-27-
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`The reason the manufacturer of Ortho Evra ceased sale of the product within the
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`United State was because the product was causing an unacceptable rate of bloods clots
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`and death among its users.
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`-28-
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`Defendants knew or should have known this to be the case.
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`-29-
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`Following the removal of Ortho Evra from the market, Defendants had a duty to
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`exercise reasonable care in conducting further testing and research to determine the
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`circumstance in which Xulane could be safely used for contraceptive purposes.
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`7
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`EXHIBIT A
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`Case 4:22-cv-00090-MLB Document 1-1 Filed 04/15/22 Page 9 of 10
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`Defendants either failed to conduct research and testing at all or they failed to
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`-30-
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`conduct adequate testing and research in breach of their duty.
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`-31-
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`Defendants’ breach of this duty directly and proximately caused Ms. Swinney’s
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`death, pain and suffering, and emotion anguish for her family.
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`-32-
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`Defendants are liable for these damages as well as the medical expenses incurred
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`in relation to attempts to save Ms. Swinney’s life.
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`COUNT V – WRONGFUL DEATH
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`-33-
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`Defendants failures as alleged in this Complaint directly and proximately caused
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`the homicide of Megan Swinney.
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`-34-
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`Pursuant to O..C.G.A. §51-4-2, Defendants are liable to Plaintiff for the full value
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`of Ms. Swinney’s life.
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`COUNT VI - PUNITIVE DAMAGES
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`-35-
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`Defendant’s failures as alleged herein exhibited willful and wanton behavior with a
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`complete disregard and conscious indifference for the safety of others such that an award
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`punitive and exemplary damages are appropriate pursuant to O.C.G.A. §51-12-5.1.
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`Plaintiff is also entitled to an award of attorney’s fees and expenses due to the nature of
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`Defendants’ conduct.
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`8
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`EXHIBIT A
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`Case 4:22-cv-00090-MLB Document 1-1 Filed 04/15/22 Page 10 of 10
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`WHEREFORE, Plaintiff prays as follows:
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`1.
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`That Defendants be served with process and required to answer these
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`allegations within the time permitted by law;
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`2.
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`That Plaintiff be awarded damages for the full value of the life of Megan Swinney
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`in addition to her medical expenses, her pain and suffering, and the family’s
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`mental anguish in an amount to be proven at trial;
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`3.
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`That Defendant be ordered to pay punitive damages as well as all of Plaintiff’s
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`attorney’s fees and expenses;
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`4.
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`That Plaintiff be awarded all pre-judgment and post-judgment interest allowed by
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`law;
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`5.
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`That Plaintiff be awarded any other relief the court determines equitable and
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`proper; and
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`6.
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`That a jury of twelve be empaneled to determine all issues of fact in this action,
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`for which demand is hereby made.
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`Respectfully submitted this 16th day of March, 2022.
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`MCCAMY, PHILLIPS, TUGGLE & FORDHAM LLP
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`BY:
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` /s/ Nathan D. Lock
`SAMUEL L. SANDERS
`Georgia Bar No. 140865
`ssanders@mccamylaw.com
`NATHAN D. LOCK
`Georgia Bar No. 948780
`nlock@mccamylaw.com
`P. O. Box 1105
`Dalton, GA 30722-1105
`P:706-278-4499
`F:706-529-8814
`Attorneys for Plaintiff
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`9
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`EXHIBIT A
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