A couple of Halloweens ago we discussed a well-reasoned, comprehensive (105 pages) opinion in In re Human Tissue Prods. Liab. Litig., No. 06-135, MDL No. 1763 (D.N.J. Oct. 22, 2008). The facts are ghoulish and center around allegations that a company, Biomedical Tissue Services (BTS), illegally harvested tissue from human corpses without obtaining the necessary consents or screening the donors for infectious diseases. That tissue was used by device companies to manufacture implants. Plaintiffs sued the device companies, claiming that the tissue was not properly screened or stored, and that implant recipients might now contract various diseases, such as HIV, syphilis, or even cancer. The defendants asserted that even if BTS did not properly screen the tissue donors, no virus could survive the sterilization process and storage at room temperature for a prolonged period of time.

The New Jersey federal court carefully analyzed Daubert challenges to plaintiffs’ experts. For example, the court struck the testimony of ubiquitous plaintiff expert Suzanne Parisian because she did not “adequately explain how her conclusions could be extrapolated from the results or conclusions from any of the studies.” Id. at 44. In the wake of the successful Daubert challenges, there was precisely zero evidence of general causation. Thus, the court granted summary judgment on all claims relating to the “transmission of HIV, HBV, HCV, cancer, and syphilis through unprocessed human bone tissue that has been stored at room temperature for thirty days or more.” Id. at 104. The court recognized that “Multidistrict litigation courts are often confronted with evaluating limited or evolving scientific and medical theories and evidence. . . . . The Rules of Evidence, however, cannot be disregarded even if at a future date, medical and scientific literature proves the contrary. As Judge Richard Posner put it, ‘the courtroom is not the place for scientific guesswork, even of the inspired sort. Law lags science; it does not lead it.'” Id. at 103 (citation omitted). Yeah, we never get tired of reading that Posner quote.

Similar facts were at issue in Keller v. Medtronic Sofamor Danek, USA, Inc., et al., 2009 N.Y. Misc. LEXIS 5128 (April 14, 2009). Once again, BTS had improperly harvested body tissue, had sold it to device companies, and some patients received implants with the tissue in question. The question (one would think) was whether plaintiffs received any contaminated tissue and sustained any harm. In Keller, BTS’s poor record-keeping made it impossible to determine whether plaintiff had received defective bone products. Medtronic, one of the defendant device-makers, provided a blood test to plaintiff. In what any ordinary person would deem a bit of good news, plaintiff did not test positive for any infection or disease. Did that forestall a lawsuit? No, it did not. Plaintiff alleged in her complaint that a negative blood test is not dispositive, that she remains at risk, and that “the true extent of the actions taken by the defendants will not be known until a significant period of time has passed.” Keller, 2009 N.Y. Misc. LEXIS 5128, **5.

Okay. So why not wait to file a complaint until you know what’s what? Lest you think that’s a rather brutal, hard-hearted response, that’s exactly what the Keller court said in dismissing plaintiff’s negligence claim: “The plaintiff fails to allege a cognizable injury as a result of the defendants’ alleged negligence. In the event that the plaintiff does develop an injury stemming from the implantation of the allegedly contaminated bone allograft, she can then bring another action within three years of its discovery pursuant to CPLR section 214-c.” Keller, 2009 N.Y. Misc. LEXIS 5128, **30. But the Keller court allowed a potpourri of other claims to proceed: violation of NY General Business Law section 349 (deceptive practices), intentional misrepresentation, negligent misrepresentation, infliction of emotional distress, medical monitoring, strict liability, and assault and battery. What sort of analysis led the New York court to sustain these causes of action, when there’s no showing of actual contact with the defective product and no manifestation of injury? Practically none. What we get in Keller is ten pages of perfectly perfunctory recitation of elements of causes of action, and then approval of how the complaint alleges those elements in conclusory fashion.

The infliction of emotional distress claim offers a particularly egregious example. (The assault and battery claim also seems fairly nutty. At this point, we’re surprised plaintiff didn’t also sue for trover and replevin, and that the court didn’t wave that one by as well. And, yes, we’ve blogged about replevin.) There are a couple of cases on the New York books holding that plaintiffs cannot sue for fear of contracting the AIDS virus unless there’s evidence they were actually exposed to the AIDS virus. See Kelly v. Our Lady of Mercy Med. Ctr., 279 AD2d 290 (1st Dept. 2001); Bishop v. Mount Sinai Med. Ctr., 247 AD2d 329 (1st Dept. 1998). Kind of makes sense, doesn’t it? But the Keller court says that the facts in its case “differ considerably” from those precedents. The adverb, of course, signals that the distinction is pure hooey. Even though the earlier cases required actual exposure, the Keller court reads them to require only that the “plaintiff was exposed to a channel of infection to insure that the threat of infection was as real possibility to be feared.” Keller, 2009 N.Y. Misc. LEXIS 5128, **22. And since Medtronic and the other defendants had informed plaintiff that they couldn’t be sure about the allograft bone products used in her surgery, and that she should undergo blood testing, well, that’s telling her that “she was exposed to a channel infection.” [sic] Id. This charming Terpsichorean maneuver transforms the “actual exposure” requirement into mere “possible exposure.” That lower standard is permissible, the Keller court tells us, if there are “special circumstances.” Id., at **24. The “special circumstances” here are that the defendants warned plaintiff, then provided a blood test that showed she was disease-free. Huh? Evidence that plaintiff has nothing to worry about supports a claim for emotional distress. Now that’s scavenging for a legal theory. Oh, and there’s another considerable distinction: unlike the plaintiff in some of those other cases, “the plaintiff in this case alleged that she was exposed to infectious diseases.” Id., at **25. Alright then. The utterly conclusory allegation saves the day for plaintiff.

Naturally, the court began its “analysis” by reminding us that the “scope of a court’s inquiry on a motion to dismiss … is narrowly circumscribed. The court must accept the facts alleged as true and determine whether the facts alleged fit within any cognizable legal theory.” Keller, 2009 N.Y. Misc. LEXIS 5128, ** 6. And the court goes on. And on. In fact, in the conclusion of the opinion the court regurgitates another full paragraph about how “narrowly circumscribed” it is, and if it can shoehorn the facts into “any cognizable legal theory,” we’re off to the races. Id., at **32. It really does reek of “the Lady doth protest too much,” or, to put it in vernacular a little closer to home, ‘sure this case is replete with silly causes of action, but somebody else’ll sort that out.’ Or maybe this: ‘Gatekeeper, shmatekeeper.’ Obviously, Twiqbal is nowhere in sight. It’s not New York law. But Keller shows why it should be. Sigh. At least, as the New Jersey case showed, there’s always summary judgment.

If the New Jersey case was the treat, the Keller case was the trick. It’s like soap on the windows, egg on the stucco, and the burning bag on the welcome mat.