Earlier in the week we got tagged by Amlaw for one of our posts about how boilerplate design and manufacturing defect claims recently got dismissed under Twombly/Iqbal.

That’s cool. Amlaw drives a lot of traffic to little blogs like ours when it says “you’re it.”

But we were a little surprised by the attention given that post. We’ve been writing about applying Twombly/Iqbal pleading rules in our sandbox for some two years. We spotted the significance of Twombly itself – the case that started all that – a week after that decision came down back in 2007. We predicted then that Twombly would apply to pleading in all actions, almost two years before the Supreme Court removed all doubt on that score in Iqbal. We brought to you the first case that we found applying the Twombly pleading standard in a drug/device product liability case. That case was Heck v. American Medical Systems, Inc., 2008 WL 1990710 (D. Md. April 30, 2008), decided well over a year ago. And we’ve discussed a number of times, most recently here, about how Twombly/Iqbal doesn’t let plaintiffs get away with bare “defendant violated the FDCA” allegations any more. Even our critics seem to agree with us about that kind of allegation being bad.

So the timing of the AmLaw tag leads to wonder – is this really big news? Haven’t there been a bunch of Twombly/Iqbal dismissals of vague (the new legal buzz word is “formulaic”) pleadings in other product liability cases before now? So we decided to find out. We’re taking the blinders off for the time being and looking for recent examples of product liability cases generally getting thrown out under the Supreme Court’s tightened pleading standards.

It’s not rocket science. The research is no more sophisticated than throwing “Twombly” and “Iqbal” (we’re glad both cases have relatively unusual names) in a Westlaw (allfeds) search along with “product liability” (with an after 2006 date restriction for good measure) and seeing what the computer spits out.

Here goes.

Ouch.

There’s 354 cases on Westlaw. Not all of them will be valid hits, of course. A lot of them won’t even be product liability cases. But that looks like a lot of work just to prove a point.

Still, that’s more than we thought. Simply on the basis of that number, we have to say that it’s the legal press that belatedly getting interested in the issue – not the courts and certainly not the lawyers.

Anyway, that size of a number means we’ll have to figure out how we want to do this. We’re going to try categorizing what we find by the type of claim that’s been dismissed. We’ll give cites and parentheticals if there’s anything particularly interesting.

As far as what we’re not doing. . . . Since we’re dealing only with Twombly/Iqbal dismissals here, we’re not getting into fraud or consumer fraud, since those claims are not governed by Rule 8 – what Twombly/Iqbal construes – by rather under the tougher Rule 9(b) standard requiring fraud to be pleaded with “particularity.” Nor are we getting into medical device cases where the dismissal is primarily based upon federal preemption, and only incidentally on pleading grounds. Those cases were covered last week in our preemption post.

Well, here goes:

Dismisssal of Everything

O’Neil v. Simplicity, Inc., ___ F.3d ___, 2009 WL 2168891 (8th Cir. July 22, 2009) (failure to allege physical injury); Watkins v. Safety-Kleen Systems, Inc., 2009 WL 2240556 (E.D. Ky. July 27, 2009) (product identification); In re Guidant Corp. Implantable Defibrillators Products Liability Litigation, 2009 WL 1921902 (D. Minn. July 1, 2009) (causation, injury); Whitson v. Bumbo, 2009 WL 1515597 (N.D. Cal. April 16, 2009) (failure to allege physical injury); In re Bausch & Lomb Inc., 2007 WL 3046682, at *7 (D.S.C. Oct. 11, 2007) (damages).

Product Liability Generally

Stearns v. Select Comfort Retail Corp., ___ F. Supp.2d ___, 2009 WL 1635931, at *3 (N.D. Cal. June 5, 2009) (damages); Sherman v. Stryker Corp., 2009 WL 2241664, at *5 (C.D. Cal. March 30, 2009) (product identification); Chappey v. Ineos USA LLC, 2009 WL 790194, at *5 (N.D. Ind. March 23, 2009) (product identification; manufacturer status); Markel American Insurance Co. v. Pacific Asian Enterprises, Inc., 2008 WL 2951277, at *6 (N.D. Cal. July 28, 2008) (numerous deficiencies); Heck v. American Medical Systems, Inc., 2008 WL 1990710, at *3 (D. Md. April 30, 2008) (numerous deficiencies); Taylor v. Shetler Lincoln Mercury Ltd., 2007 WL 4551935, at *4 (W.D. La. Dec. 18, 2007) (manufacturer status); Provencio v. Armor Holdings, Inc., 2007 WL 2814650, at *2 (E.D. Cal. Sept. 25, 2007) (numerous deficiencies).

Design Defect Claims

Lewis v. Abbott Laboratories, 2009 WL 2231701, at *4 (S.D.N.Y. July 24, 2009); Burks v. Abbott Laboratories, ___ F. Supp.2d ___, 2009 WL 2246740, at *7 (D. Minn. July 24, 2009); Frey v. Novartis Pharmaceuticals Corp., 2009 WL 2230471, at *7 (S.D. Ohio July 23, 2009).

Manufacturing Defect Claims

Horowitz v. Stryker Corp., 613 F. Supp.2d 271, 283-84 (E.D.N.Y. 2009); Lewis v. Abbott Laboratories, 2009 WL 2231701, at *5 (S.D.N.Y. July 24, 2009); Burks v. Abbott Laboratories, ___ F. Supp.2d ___, 2009 WL 2246740, at *8 (D. Minn. July 24, 2009); Frey v. Novartis Pharmaceuticals Corp., 2009 WL 2230471, at *7 (S.D. Ohio July 23, 2009); Delaney v. Stryker Orthopaedics, 2009 WL 564243, at *6-7 (D.N.J. March 5, 2009); Rice v. Kawasaki Heavy Industries, Ltd., 2008 WL 4646184, at *10 (E.D.N.Y. Oct. 17, 2008).

Warning Defect Claims

Bailey v. Janssen Pharmaceutica, Inc., 288 Fed. Appx. 597, 608-09 (11th Cir. 2008) (failure to plead the label available to the doctor under the learned intermediary rule); Lewis v. Abbott Laboratories, 2009 WL 2231701, at *5 (S.D.N.Y. July 24, 2009) (inadequacy of warnings to doctors); Burks v. Abbott Laboratories, ___ F. Supp.2d ___, 2009 WL 2246740, at *9 (D. Minn. July 24, 2009) (against one of two defendants); McCracken v. Ford Motor Co., 588 F. Supp.2d 635, 642-43 (E.D. Pa. 2008).

Implied Warranty

Lewis v. Abbott Laboratories, 2009 WL 2231701, at *6 (S.D.N.Y. July 24, 2009); Stearns v. Select Comfort Retail Corp., ___ F. Supp.2d ___, 2009 WL 1635931, at *7 (N.D. Cal. June 5, 2009) (fitness for particular purpose); American International Insurance Co. v. Gastite, 2009 WL 1383277, at *3-4 (S.D. Ind. May 14, 2009); Great West Casualty Co. v. Volvo Trucks North America, Inc., 2009 WL 588432, at *5 (N.D. Ill. Feb. 13, 2009) (unconscionability); In re Saturn L-Series Timing Chain Products Liability Litigation, 2008 WL 4866604, at *13-14 (D. Neb. Nov. 7, 2008); Markel American Insurance Co. v. Pacific Asian Enterprises, Inc., 2008 WL 2951277, at *5-6 (N.D. Cal. July 28, 2008); Heck v. American Medical Systems, Inc., 2008 WL 1990710, at *3 (D. Md. April 30, 2008) (numerous deficiencies).

Express Warranty

Burks v. Abbott Laboratories, ___ F. Supp.2d ___, 2009 WL 2246740, at *10 (D. Minn. July 24, 2009); Delaney v. Stryker Orthopaedics, 2009 WL 564243, at *6 (D.N.J. March 5, 2009); In re FEMA Trailer Formaldehyde Products Liability Litigation, 2008 WL 5217594, at *10 (E.D. La. Dec. 12, 2008) (reliance); Simmons v. Stryker Corp., 2008 WL 4936982, at *1-2 (D.N.J. Nov. 17, 2008); Stearns v. Select Comfort Retail Corp., 2008 WL 4542967, at *4-5 (N.D. Cal. Oct. 1, 2008) (reliance, breach); Markel American Insurance Co. v. Pacific Asian Enterprises, Inc., 2008 WL 2951277, at *5-6 (N.D. Cal. July 28, 2008); Stratford v. SmithKline Beecham Corp., 2008 WL 2491965, at *7 (S.D. Ohio June 17, 2008); Parker v. Howmedica Osteonics Corp., 2008 WL 141628, at *6 (D.N.J. Jan. 14, 2008).

Negligence Generally

Bailey v. Janssen Pharmaceutica, Inc., 288 Fed. Appx. 597, 609 (11th Cir. 2008); Hagen v. U-Haul Co., 613 F. Supp.2d 986, 993-94, 999 (W.D. Tenn. 2009) (special relationship allowing a duty, product identification); McCracken v. Ford Motor Co., 588 F. Supp.2d 635, 643 (E.D. Pa. 2008) (duty, foreseeability); Adkins v. Cytyc Corp., 2008 WL 2680474, at *3 (W.D. Va. July 3, 2008) (sales rep duty; causation); Wolicki-Gables v. Arrow International, Inc., 2008 WL 2773721, at *2 (M.D. Fla. June 17, 2008) (product identification); Heck v. American Medical Systems, Inc., 2008 WL 1990710, at *3 (D. Md. April 30, 2008) (duty, breach).

Negligent Manufacturing

Gibbs Patrick Farms, Inc. v. Syngenta Seeds, Inc., 2008 WL 822522, at *6 (M.D. Ga. 2008).

Negligence Per Se

Chappey v. Ineos USA LLC, 2009 WL 790194, at *3 (N.D. Ind. March 23, 2009) (failure to specify violation).

Gross Negligence

Sykes v. Bayer Pharmaceuticals Corp., 548 F. Supp.2d 208, 217 (E.D. Va. 2008).

RICO

Southeast Laborers Health and Welfare Fund v. Bayer Corp., 2009 WL 2355747, at *3-12 (S.D. Fla. July 30, 2009) (predicate acts, pattern, causation, damages).

Miscellaneous

Lewis v. Abbott Laboratories, 2009 WL 2231701, at *7 (S.D.N.Y. July 24, 2009) (piercing corporate veil); Norfolk Southern Railway Co. v. Trinity Industries, Inc., 2009 WL 362437, at *8 (N.D. Tex. Feb. 13, 2009) (piercing corporate veil); Sprouse v. American Tire Distributors, Inc., 2009 WL 111601, at *2 (E.D. Va. Jan. 14, 2009) (negligent installation); McCracken v. Ford Motor Co., 588 F. Supp.2d 635, 644 (E.D. Pa. 2008) (intentional infliction of emotional distress); Tyco Safety Products Canada, Ltd. v. Abracon Corp., 2008 WL 4753728, at *2 (S.D. Fla. Oct. 28, 2008) (negligent misrepresentation).

So what do we conclude from all this?

First, the courts started applying the Twombly standard to dismiss “formulaicly” pleaded product liability litigation within weeks of the Supreme Court’s decision. Like us they immediately recognized that Twombly’s logic wasn’t limited to any particular type of case.

Second, the legal press didn’t pick up on pleading issues until recently – probably because of the publicity given to Sen. Specter’s legislative proposal. But lawyers and judges sure did.

Third, there’s precedent out there for dismissing virtually any product liability-related claim under Iqbal/Twombly – provided the complaint is vague enough.

Fourth, the pace and scope of Iqbal/Twombly dismissals in product liability cases is increasing.

Fifth, there seem to be a disproportionately large number of drug/device cases applying Iqbal/Twombly when compared to the universe of product liability. If we flatter ourselves, maybe our early and frequent advocacy helped bring that about. If we don’t, maybe we’ve just been harping on something that’s obvious to anybody.

Sixth, we weren’t as good as we thought. There were several Twombly dismissals in drug/device product liability cases before the Heck case that we proudly paraded around as the first of its kind.

Seventh, we really don’t want to look through 350 cases again – just to make a point.