We love Iqbal:
(If only we spoke Urdu, we’d probably appreciate it a little more.)
(We told you this blogging was good for us. How would we ever have learned about Sir Muhammed if we weren’t googling “Iqbal” to research this post?)
Enough of poetry, erudition, love, and life. Let’s talk law.
Not just law; let’s talk pleading.
In ninety percent of pharmaceutical product liability complaints, plaintiffs plead claims for manufacturing defect and design defect.
And those claims are almost always hokum — plaintiffs plead ’em, but plaintiffs don’t have any facts to support ’em, and those claims eventually disappear.
But they disappear only after the defendant answers those claims, and the defendant serves interrogatories asking for supporting facts (and is told that “discovery isn’t yet complete, so the facts will come later”), and the plaintiff’s expert doesn’t say anything about those claims, and defendant throws a paragraph into the summary judgment papers saying the claims are bogus, and the plaintiff doesn’t bother defending the claims, and the court finally throws ’em out ten minutes before the trial of a failure-to-warn case, which is what the whole spat was really all about from the start.
Can’t we save the trouble?
After Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the answer is “yes.”
In Frey v. Novartis Pharmaceuticals Corp., No. C-1-07-317, 2009 U.S. Dist. LEXIS 64731 (S.D. Ohio July 23, 2009), Amanda Frey suffered multi-organ hypersensitivity after ingesting Novartis’ antiepileptic drug Trileptal. She sued Novartis under Ohio state law for manufacturing defect, design defect, inadequate warnings, failure to conform to representation, supplier liability, and punitive damages. Novartis moved to dismiss the manufacturing, design, and supplier causes of action.
Plaintiff had pled the manufacturing defect claim precisely the way it’s always pled — fact-free. In the words of the Freys’ complaint:
“Defendants failed to design, manufacture, test, and control the quality of Trileptal such that when it left the control of the Defendant, it deviated in a material way from the design specifications, formula or performance standards of the manufacturer, or from otherwise identical units manufactured to the same design specifications, formula or performance standards”
In other words — hokum.
Before Twombly and Iqbal, courts might have found that type of pleading to pass muster.
Not so after Iqbal. In the words of Iqbal:
A claim is facially plausible only when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949.
Judge Herman Weber applied Twombly and Iqbal to dismiss some of the Freys’ claims. As to manufacturing defect, plaintiffs “have done nothing more than provide a formulaic recitation of the elements of a claim under the statute. They have failed to allege any facts that would permit the Court to conclude that a manufacturing defect occurred and that the defect was the proximate cause of Amanda Frey’s alleged injuries.” Frey, 2009 U.S. Dist. LEXIS at *19.
So, too, for the design defect claim: “They have not alleged any facts that would permit the Court to conclude that there was a defect in the design or formulation of Trileptal and that the defect was the proximate cause of Amanda Frey’s injuries.” Id. at *20.
Finally, the supplier liability claim fell because the Ohio statute defines “supplier” to exclude “manufacturer.” Id. at *9. Since plaintiffs pled that Novartis was the manufacturer of Trileptal, the supplier claim could not survive. Id. at *20.
Nice work, Judge Weber.
That result is, as you might imagine, poetry to our ears.