Hardly a week goes by when we don’t blow a kiss or two at Twombly/Iqbal. Frankly, we can’t understand why everyone doesn’t share our enthusiasm. What’s wrong with requiring plausibility before subjecting someone to the monetary, stress, and reputational expenses of litigation? It’s enormously frustrating when courts express hostility to Twombly/Iqbal. Sometimes it’s even worse when courts pretend to follow Twombly/Iqbal but then apply them in such a way as to eviscerate the plausibility requirement. Call it the banality of lip-service.

A recent and infuriating example of that can be found in Jozwiak v. Stryker Corp., et al., 2010 WL 743834 (M.D. Fla. Feb. 26, 2010). Plaintiff sued Stryker, McKinley Medical, Moog, Inc., and Curtin Medical for cartilage injuries allegedly caused by a shoulder pain pump. Plaintiff’s theories included failure to warn, failure to test, and misrepresentation regarding FDA approval for the particular use of the pain pump. Defendants filed motions to dismiss on various theories, but most centered around Plaintiff’s failure to allege “facts plausibly establishing which of the Defendants manufactured the pain pump at issue.” You see, Plaintiff had not identified the specific manufacturer; rather, she simply sued likely suspects.

The court begins its analysis by saying all the right things. It quotes Iqbal quoting Twombly (a twofer!): “Once a court ‘identif[ies] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth,’ the court must next determine whether the well-pled facts ‘state a claim to relief that is plausible on its face.'” Now we’re talking. This is going to be good.

Only it’s not. According to the court, “Plaintiff plausibly establishes that the Defendants owed her a duty to use reasonable care by alleging that ‘each of the [Defendants] designed, manufactured, marketed, distributed, sold, or promoted the pain pump’ that was installed in her shoulder during surgery.” That’s it? Wait, there’s more: “Finding no factual allegations in the Amended Complaint to the contrary, both the Stryker Defendants and the McKinley Defendants are alleged to have owed Plaintiff a duty.” Huh? So general, formulaic, conclusory — and, by the way, impossible in the real world — allegations are plausible unless the plaintiff herself generously pleads implausibility? What is the authority for that remarkable proposition?

Stryker argued that the Amended Complaint “should be dismissed because both they and the McKinley Defendants could not have manufactured the pain pump at issue and they both could not have owed her a duty.” Good point. This reminds us of John Adams’s statement that “facts are stubborn things.” But apparently a court looking to dodge Twombly/Iqbal can be equally stubborn: “The argument is not proper at this stage of the proceedings because it assumes facts not alleged in the Amended Complaint or referenced or incorporated therein.” Groan. This is one of those courts that thinks there’s a right to discovery no matter how stupid, lazy, or impossible the complaint is. For such courts, Twombly/Iqbal is an obstacle to be surmounted, preferably by general, hollow allegations (really conclusions) in the complaint, followed by the court’s muttering of the “plausibly establishes” incantation.

The Jozwiak court supplies further examples of how to ignore or circumvent the Supreme Court’s holding:

• “Finally, Plaintiff plausibly establishes that these breaches caused her harm by alleging that the she [sic] has sustained severe and permanent injuries as a result of the Defendants’ manufacture, marketing, advertising, off-label promotion, distribution, and sale of pain pumps and the installation of one [!] such pain pump into her shoulder.” (The bracketed [!] is ours — read it as a guffaw.)
• “Jozwiak sufficiently pleads that the Defendants manufactured or distributed the pain pump at issue [repeat – impossible] by alleging that ‘[e]ach of the [Defendants] designed, manufactured, marketed, distributed, sold, or promoted the pain pump’ that was installed during her surgery.”

There’s more, but why go on? It’s all the same. Plaintiff got away with precisely what Twombly/Iqbal forbade — mere conclusory allegations that make no sense when viewed through the prism of reality. Here’s a test to see whether a complaint contains factual allegations, as opposed to mere conclusions: how would the allegations fit into a closing argument? If the allegations really are the sort of meaty bits that one would argue to the jury, they probably are factual allegations. But if they merely present a standard from, say, jury instructions, that facts must be read against, then they are mere conclusions. Can you imagine Jozwiak’s lawyer arguing to the jury that his client “sustained severe and permanent injuries as a result of the Defendants’ manufacture, marketing, advertising, off-label promotion, distribution, and sale of pain pumps and the installation of one such pain pump into her shoulder?” Of course not — the jury would witness a parade of juicy, specific facts, maybe even who said or did what when. None of that is in the Jozwiak complaint, what was in it plainly does not satisfy Twombly/Iqbal, and the court simply didn’t care.

It doesn’t have to be that way. Courts more often than not get this issue right. We posted here that there are many examples of courts applying Twombly/Iqbal to dispose of implausible allegations, including allegations regarding product identification.

Further, standing in stark contrast to Jozwiak is Sherman v. Stryker Corp, et al., 2009 WL 2241664 (C.D. Cal. 2009). In Sherman, the plaintiff sued a raft of defendants for cartilage injury allegedly sustained from a shoulder pain pump. Sound familiar? The result won’t. This court also quoted Twombly, and it quoted a passage that was missing from Jozwiak: “The complaint need not contain detailed factual allegations, but it must provide more than ‘a formulaic recitation of the elements of a cause of action.'” The Jozwiak complaint offered only “a formulaic recitation of the elements of a cause of action.” The Sherman court was more faithful to Twombly/Iqbal than the Jozwiak court was. It was therefore considerably more demanding. The Sherman court rejected the plaintiff’s effort to lump together a number of potential defendants: “At most, the complaint alleges that they could have been one of many different brands or medications that might have been administered to Sherman. This is insufficient under Twombly.” Exactly.

The Sherman court drops an interesting footnote, mentioning something that has probably already occurred to many of our readers: Sherman alleged no theory for holding the defendants liable under the dreaded market share liability of Sindell v. Abbot Labs, 26 Cal. 3d 588, cert. denied, 449 U.S. 912 (1980). Wow – that citation takes us back to our first year torts class, where we were treated to a series of batty decisions from California where courts permitted plaintiffs to bring actions when they had no clue who harmed them. But even those cases involved defendants who were sort of on the scene, e.g. Ybarra v. Spangard, 25 Cal. 2d 486 (Cal. 1944)(one of the doctors or nurses in the operating room screwed up), or Summers v. Tice, 33 Cal.2d 80 (Cal. 1948) (it was hard to say which of the negligent hunters fired the injuring shot).

So much for nostalgia. Neither Jozwiak nor Sherman fit into those entertaining paradigms. Or maybe Jozwiak’s lawyers were going to argue that, as in Murder on the Orient Express, all of the suspects acted together to cause the injury. (Should we have posted a spoiler alert? We don’t think so. It’s an old movie. Plus, we love spoilers. Here are more: the Bruce Willis character is dead; the mean, heavy-breathing dude in the black helmet is Luke’s daddy; the people in the hospital are the imaginings of a kid staring at a snow globe; and only Ishmael survives. Oh, and it was a sled.)

No spoiler is as wretched as the Jozwiak decision. It’s hard to say whether it reflects hostility to Twombly/Iqbal, or mere indolence. And we left out something. It turns out that Jozwiak’s counsel sent an email stating that “Plaintiff’s treating physician told Plaintiff’s counsel that he exclusively used Stryker pain pumps.” The court declined to consider that email. After all, this was a Rule 12 motion. After all, there’s always discovery. That of course, is cold comfort for the other defendants who are being sued for no good (i.e., “plausible”) reason.

Twombly/Iqbal were designed to prevent such defendants from being subjected to frivolous litigation. (Whither Rule 11?) The Jozwiak decision seems designed to evade Twombly/Iqbal.