15-2838-cv
Caronia v. Orphan Medical, Inc.

                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
17th day of March, two thousand sixteen.

Present:   PIERRE N. LEVAL,
            ROSEMARY S. POOLER,
            RICHARD C. WESLEY,
                        Circuit Judges.
_____________________________________________________

ALFRED CARONIA, DOROTHY SCIALLO,

                                    Plaintiffs-Appellants,

                          v.                                                   15-2838-cv

ORPHAN MEDICAL, INC., UNITED STATES OF AMERICA,
HEALTH AND HUMAN SERVICES AGENT JOSEPH GIAMBALVO,
JAZZ PHARMACEUTICALS, INC., F.B.I. SPECIAL AGENT ANDREW SHAPIRO,

                        Defendants-Appellees.
_____________________________________________________

Appearing for Appellant:            Thomas F. Liotti, Garden City, NY.

Appearing for Appellees             Andrew B. Joseph, Drinker Biddle & Reath LLP
Orphan Medical, Inc. and            (Kenneth J. Wilbur, on the brief), Florham Park,
Jazz Pharmaceuticals:               NJ.
Appearing for Appellees
United States of America,     Varuni Nelson, Assistant United States Attorney,
Joseph Giambalvo and          (Margaret M. Kolbe, on the brief) for Robert L. Capers, United
Andrew Shapiro:               States Attorney for the Eastern District of New York, Brooklyn,
                              NY.

Appeal from the United States District Court for the Eastern District of New York (Block, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Alfred Caronia and Dorothy Sciallo appeal from the August 13, 2015 memorandum and
order and judgment of the United States District Court for the Eastern District of New York
(Block, J.) dismissing their complaint seeking money damages. The plaintiffs’ civil suit arose
after our Court vacated Caronia’s conviction for conspiracy to introduce a misbranded drug into
interstate commerce on the ground that by encouraging off-label drug use Caronia was
exercising his First Amendment rights. See United States v. Caronia, 703 F.3d 149, 155 (2d Cir.
2012). We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.

        We affirm substantially for the reasons set forth in the district court’s well-reasoned
order. As set forth in the district court’s order, the claims set forth in the complaint cannot
proceed because (1) the claims are time barred; (2) the United States has not waived its sovereign
immunity; and (3) the complaint fails to adequately plead the necessary factual predicates. With
respect to plaintiffs’ Federal Tort Claims Act malicious prosecution claim, we affirm on the
ground that plaintiffs failed to plead facts sufficient to show that the government acted without
probable cause and with malice. See DiBlasio v. City of New York, 102 F.3d 654, 657 (2d Cir.
1996). We find no error with the district court’s conclusions.

        We have considered the remainder of plaintiffs’ arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED. Each side to bear its
own costs.


                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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