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We fight with plaintiff lawyers all the time. Some mornings we roll out of bed and immediately start swinging. So we love it when plaintiff lawyers decide to mix it up with us, grab a pen (or keyboard), and write rejoinders to our blog posts. Recently, Nuvaring plaintiff lawyers wrote an article in Product Liability 360 in an attempt to do what plaintiff lawyers always accuse us of doing – defend the indefensible. The title of the article is “Nuvaring Meets Iqbal.” As we will explain later, that title is something of a howler. The authors are Rheingold and Shkolnik, co-lead counsel for the Nuvaring plaintiffs. When we say we love fighting with plaintiff lawyers, we mean legal debate. Violence we eschew. This is, after all, the Nuvaring Cycle, not Wagner’s Ring Cycle. Still, the title of the first opera in the Ring Cycle is strangely on point here, isn’t it?
Needless to say, Rheingold and Shkolnik have a rather large (if dull) axe to grind. By contrast, we don’t have anything to do with the Nuvaring case. We are mere spectators. Horrified spectators, but spectators nonetheless.
In various posts (here, herehere, and here), we’ve expressed our concern over how the Nuvaring court keeps avoiding the defendant’s legitimate efforts to test the validity of the Nuvaring pleadings. We’ve recited the procedural steps several times. The plaintiff lawyers also provide a summary, though theirs is a tad selective. Their bottom line is that the Nuvaring court got it right (big surprise), and that an MDL court is not supposed to “clean up pleadings.” According to them, all that an MDL court should do is promote “the efficient coordination of discovery.” There’s a slight problem with this, though. It’s wrong. We collected two dozen examples of courts (most but maybe not all MDL courts) attending to deficient pleadings here – and those only involved master complaints.
Then there’s this: “The twists and turns in the Nuvaring litigation discussed here have been tracked by a prominent blog.” Aw, shucks, we’re blushing. “Their tone has been extremely critical of the court’s ruling and the steps of lead counsel for plaintiffs.” At this point, we’re reading and nodding. “However, the blog makes numerous inaccurate statements, such as that the plaintiffs withdrew the master complaint.” Ouch! That’s a good advocate’s trick. Say “numerous” and then furnish only one example. And even that one misfires. We made clear both in the most recent post as well as earlier posts that the judge struck the master complaint as a way to avoid ruling on the defendant’s perfectly proper motion to dismiss.
Now we’re not going to accuse our friendly plaintiff lawyers of “inaccurate statements,” but it is passing strange how they neglect to mention that the MDL court explicitly said that striking the master complaint “will allow the parties and the Court to focus on the dismissal motions filed in the individual cases.” In re Nuvaring Products Liability Litigation, 2009 WL 3427974 (E.D. Mo. Oct. 23, 2009). Uh, isn’t that exactly what the defendant later tried to do, and what plaintiffs opposed, and what the court rejected? What happened?
Look, we get it that plaintiffs hate – really hate – Twombly and Iqbal. We don’t really get, but we know, that there are also some judges out there who don’t like those cases very much either. But those cases are the law of the land. If you don’t like them, write your Senator. (Yeah, we know — that’s happening. For some scintillating debate on the merits of Twombly and Iqbal, see our prior posts here.)
We, of course, adore Twombly and Iqbal, and make no bones about it. It is important for courts to recognize that Rule 8’s pleading standard “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). What’s more, the Eighth Circuit, whose law should theoretically govern in the Nuvaring MDL, has had no problem applying Twombly‘s requirement of “facts that affirmatively and plausibly suggest that the pleader has the right he claims.” Stalley v. Catholic Health Initiatives, 509 F. 3d 517, 521 (8th Cir. 2007). At some point we hope they get a chance to reaffirm that ruling.
Here’s the real headline from the plaintiffs’ apologia for the Nuvaring decisions: they never really claim that their pleadings “meet” Twombly and Iqbal. That’s why we think the title of their article inspires mirth. “Nuvaring Meets Iqbal” probably intended “Meets” to mean “come upon by chance or arrangement.” American Heritage College Dictionary (Third ed.) Sort of like “Frankenstein Meets the Wolf Man.”  But if we consider “Meets” to mean “come into conformity with,” then the title really should have been “Nuvaring Does Not Meet Iqbal.”
We find more mirth in the article itself, where counsel state that while they have “no particular quarrel with the Twombly/Iqbal line of cases requiring the pleading of plausible causes of action that put the defendant on fair notice of the claims, nor with the right of a defendant to move under FRCP 12(b)(6) where no valid cause of action is stated” those “remedies, however, are inappropriate in the MDL mass tort setting.” Two things about that. First: they’re about as magnanimous as the transcendentalist Margaret Fuller saying “I accept the universe” – and we feel rather like the harder-headed British historian Thomas Carlyle retorting “By Gad, she’d better!” Second: putting our legal hats back on, where is the legal support for that sleight of hand? Didn’t Iqbal plainly say that the Twombly plausibility requirement “expounded the pleading standard for all civil actions”? Iqbal, 129 S. Ct. at 1953. Call us crazy, but we think “all” means all. We’ve been critics of arguments that “mass torts are different” and should be governed by different (more plaintiff friendly) rules than if the same cases were brought individually.
Moreover, there are heaps of product liability cases applying Twombly and Iqbal. See, e.g., Lewis v. Abbot Laboratories, No. 08 Civ. 7480, 2009 WL 2231701 (S.D.N.Y. July 24, 2009) (Depakote); Frey v. Novartis Pharmaceuticals Corp., No. C-1-07-317, 2009 U.S. Dist. Lexis (S.D. Ohio July 23, 2009) (Trileptal). See our prior comprehensive (at the time) post on this topic here. Further, MDL courts have had no problem applying Twombly and Iqbal. See, e.g., In re Guidant Corp., Implantable Defibrillators, MDL No. 05-1708, 2009 WL 1921902 (D. Minn. July 1, 2009); In re Bausch & Lomb Inc., MDL No. 1785, 2007 WL 3046682 (D. S.C. 2007).
Nevertheless, the plaintiff lawyers think that the Nuvaring MDL is a swell vehicle for ignoring or overruling Supreme Court precedent, because application of Iqbal would “inevitably be premature where many cases from all over the United States are being congregated for pretrial preparation during ongoing litigation.” No, that’s the precise reason why application of Iqbal is essential – for precisely the reasons that the Supreme Court gave in that case: to prevent the discovery cart from getting in front of the pleadings horse.  Iqbal, 129 S.Ct. at 1954.
Here is where the issue is joined. Plaintiffs’ article says that Nuvaring’s “defense counsel were unwilling to await the completion of discovery and began its extremely expensive process of attacking every single complaint in the MDL.” Every part of that sentence is wrong, including the “the’s” and “and.” Isn’t discovery “extremely expensive?” In deciding Twombly and Iqbal, didn’t the Supreme Court talk about avoiding unnecessary discovery expense? Yup and yup, but it’s way more expensive for the defendant than plaintiffs, so that’s fine and dandy with the other side. And didn’t the Nuvaring defendant try to avoid the expense of attacking every single complaint by filing a motion against the master complaint? Yup, but the Nuvaring court simply didn’t want to deal with 12(b)(6) motions. Rheingold et al proudly write, “Not only did the court deny all pending motions, he denied all future ones!” Doesn’t that kind of suggest that there’s something wrong with what the court is doing? Since when can a court opt entirely out of Rule 12?
What’s really afoot here is that plaintiff counsel (understandably) and some courts (unfortunately) believe that an MDL is all about helping plaintiffs conduct discovery against the big, bad defendant before plaintiffs’ cases are tested in any way, shape, or form. Down that road there be monsters, rampant unfairness, and even more rampant expense. If the various cases were filed individually, any reasonable judge would snort at a plaintiff’s suggestion that a defendant should have to spend millions of dollars on e-discovery before the plaintiff would have to file a decent complaint. Why should aggregation eviscerate a defendant’s rights? Put another way, why should plaintiffs’ counsel be rewarded for creating an inventory of cases where they cannot find any facts (or, in some cases, cannot even find their plaintiffs)?
And this brings us to the second criticism the plaintiff lawyers level at us. They say that the fine defense lawyers who bring you this delightful blog “compound their attack by stating that plaintiffs ‘undoubtedly have the usual inventory of vague, schlocky claims,’ without any knowledge of what in fact our firm or others have filed.” We’re betting they especially don’t like the technical term, “schlocky.” If the plaintiffs’ lawyers are saying we didn’t read every Nuvaring complaint, they are one-hundred percent right. We didn’t. We also didn’t finish “Middlemarch” in English class, and used Cliff Notes to get through “Magic Mountain” in college. Some reading is just too painful. But we have seen a thing or two over the years when it comes to plaintiff mass tort claims, especially in MDL’s (so we’ve got the requisite expertise under Fed. R. Evid. 702), and it ain’t pretty.
And the truth is that we have actually read some of the Nuvaring complaints. Again, not pretty. Here’s an example of a fraud claim:

40. Defendants deliberately and carelessly made false and misleading statements about the safety of the product, on which plaintiff and her prescribing doctor relied to her detriment.

41. Defendants concealed research which it did or had done for it, or changed it before the presentation to the FDA or for publication so as to minimize health hazard, and caused to be published articles unjustifiably representing the safety of the product.

That’s it. Two paragraphs. We’re not making that up. What happened to the requirement that a fraud claim should include such interesting items as time, place, and contents of false representations? See Commercial Prop. Invs, Inc. v. Quality Inns Int’l, Inc., 61 F.3d 639, 644 (8th Cir. 1995). This kind of thing would be the epitome of the sort of “formulaic recitation” of elements of a cause of action – except it doesn’t even get that far. The second paragraph doesn’t contain a causal link to anything.
The breach of warranty and negligence and strict liability claims are similarly … devoid of substantive content. For example:

  • There’s a defective manufacturing claim stating that the Nuvaring used by the plaintiff “was defective in its manufacture and construction when it left the hands of Defendant Organon in that it deviated from product specifications.” What deviation? Guess all you want.
  • The failure to warn claim is a little hard to figure, because while the complaints allege clotting/venous thromboembolism injury, that is clearly warned about on the label. Plaintiffs do not explain how the label is deficient or what wording should have been used.
  • The alleged express warranty is that “Nuvaring was a safe and effective prescription contraceptive.” That’s it. There is no recitation of the warranty language, no mention of the labeling or whatever in which this supposed “express” statement occurred, and not even a formulaic recitation that the plaintiff relied on, or even saw, such alleged warranty.

Why, it’s as if the plaintiff lawyers simply changed the caption, hit a button on the word processor and – voila! – a brand new complaint was created. One size fits all. Nice work if you can get it. And these pleading deficiencies exist even after plaintiffs have taken extensive discovery of the defendant. As we said weeks ago in our opening statement of our Twombly/Iqbal debate in Pennumbra, “The rules are not designed to reward lazy lawyers whose primary litigation tool is the word processor.”

Mind you, we’re not blaming the plaintiff lawyers. They only get away with whatever the courts let them do. Here, the Nuvaring cycle of increasingly strained excuses for ignoring Rule 12 will increase filings of weak – yes, schlocky – cases. It will give rise to an epic slog of discovery, visiting expense that, in terms of sheer dollars, is higher than most plaintiff verdicts where a defendant is found liable. Here, of course, the defendant has not been found liable of anything. You’ve probably heard Marx’s phrase about how history repeats itself, first as tragedy and second as farce. The Nuvaring litigation is heading in the direction Marx predicted. That wouldn’t be the case if the court would insist that the plaintiffs plead actual facts and plausibility. That wouldn’t be the case if the Nuvaring litigation truly “meets” Iqbal.