
    In re NORPLANT CONTRACEPTIVE PRODUCTS LIABILITY LITIGATION. Tonia ALEXANDER, et al., Plaintiffs, v. WYETH LABORATORIES, INC., Wyeth-Ayerst Laboratories Company, Defendants.
    No. 1:95CV5071.
    United States District Court, E.D. Texas, Beaumont Division.
    Sept. 29, 1995.
    
      Mickey Buchanan, Ashdown, Arkansas, Nicholas H. Patton of Patton Law Offices, Texarkana, TX, for Plaintiff.
    Mitchell, Williams, Selig, Gates & Wood-yard, Little Rock, Arkansas, F. Lane Heard, III, Williams & Connolly, Washington, DC, for Defendant.
   MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS’ MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT

SCHELL, Chief Judge.

Before this court is Plaintiffs’ Motion for Leave to File Third Amended Complaint, filed on July 24,1995, to which no opposition was filed. Upon consideration of the motion and memorandum of law, the court is of the opinion that the motion should be GRANTED.

BACKGROUND

Defendants sell and distribute the Norplant contraceptive device to doctors and hospitals, which in turn implant the device in the bodies of women. Plaintiffs have had Norplant inserted and now are suing the Defendants, alleging that Norplant caused them to incur unnecessary medical expenses and endure pain, suffering, and mental anguish, along with lost wages and other injuries. In the Plaintiffs’ First Amended Complaint, thirty-six plaintiffs sued three defendants, Wyeth Laboratories, Inc., White Hall Laboratories, Inc., and Wyeth-Ayerst Laboratories Company under five different theories of liability. By the current motion, Plaintiffs seek to add three additional plaintiffs and one additional defendant and to add a claim for misrepresentation against all three defendants.

DISCUSSION

Rule 15 of the Federal Rules of Civil Procedure states that although leave of court is required for a party to amend its pleadings after a responsive pleading has been served, “leave shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). Plaintiffs seek leave to amend their complaint to add three additional plaintiffs, each of whom allege that they suffer from the same injuries as those listed in the First Amended Complaint. Also, Plaintiffs seek leave to add one additional defendant and one additional theory of liability against all three defendants.

Such leave is generally left to the court’s sound discretion, although the court should consider several factors in exercising its discretion. See Earlie v. Jacobs, 745 F.2d 342, 345 (5th Cir.1984) (citations omitted); Foster v. Daon Corp., 713 F.2d 148, 152 (5th Cir.1983) (citations omitted). These factors include (1) whether permitting the amendment would cause undue delay or undue prejudice; (2) whether the movant is acting in bad faith or with a dilatory motive; (3) whether denying the amendment would prejudice the movant; and (4) whether the amendment adds substance or is germane to the original complaint. Earlie, 745 F.2d at 345 (citations omitted); Foster, 713 F.2d at 152 (citations omitted).

In the case at bar, because the additional plaintiffs complain of the same side effects as those listed in the original complaint, granting leave to amend in order to add these plaintiffs will cause neither undue delay nor undue prejudice, and the amendment is certainly germane to the original complaint. Additionally, there is no evidence to suggest that Plaintiffs are acting in bad faith in seeking to add these new plaintiffs. Finally, although a denial of the amendment may not result in prejudice against the Plaintiffs, because this case appears to still be in its infant stages, Defendants also will not be unfairly prejudiced by the addition of these three new plaintiffs.

The same analysis applies to the addition of American Home Products Corporation as a Defendant. The Plaintiffs assert the same causes of action against all Defendants, so the addition of any one defendant will not cause undue delay or unduly prejudice the other defendants, and the amendment is once again germane to the previously-filed complaint. Also, there is no evidence that the Plaintiffs are acting in bad faith in seeking to add American Home Products Corporation as a defendant, and denial of the amendment could certainly by prejudicial to the Plaintiffs.

Finally, the addition of the misrepresentation claim against all three defendants also passes the Earlie test. Because this lawsuit is still in a relatively early stage of the proceedings, and because merits discovery in this case has been stayed pursuant to the Practice and Procedure Orders issued by this court on December 14, 1994 and February 2, 1995, the addition of this misrepresentation claim will neither unduly delay the case nor unduly prejudice the Defendants. Further, the misrepresentation claim is certainly germane to the other claims already asserted in this lawsuit, and there is again no evidence that the Plaintiffs have acted in bad faith in seeking leave to amend to assert such a claim. Additionally, denying the amendment may very well prejudice the Plaintiffs, for they may not be able to otherwise effectively raise such a claim outside of the current lawsuit.

CONCLUSION

After considering the Earlie and Foster factors, this court believes that justice requires that Plaintiffs be allowed to amend their complaint. It is, therefore, ORDERED that Plaintiffs’ Motion for Leave to File Third Amended Complaint is GRANTED. 
      
      . However, Plaintiffs have never filed a Second Amended Complaint. Nevertheless, the court will consider this motion as named and will not require Plaintiffs to resubmit a properly-named "Second Amended Complaint” in place of the "Third” Amended Complaint.
     
      
      . The five theories are: negligence, failure to warn, failure to instruct, strict liability, and breach of warranty.
     
      
      . On April 27, 1995, this court granted the Plaintiffs’ motion to voluntarily dismiss White Hall Laboratories, Inc. from the lawsuit. The pending motion to amend apparently seeks to essentially substitute American Home Products Company into the lawsuit in place of White Hall Laboratories, Inc.
     