Plaintiffs love lobbing civil conspiracy claims into drug and device cases. Maybe it’s because there’s a deep pocket on the sidelines. Maybe plaintiffs hope to use a bogus “conspiracy” allegation to argue for the broad admissibility of conduct evidence or “co-conspirator statements.” Or, more likely, maybe the plaintiff just can’t figure out who to blame (so blame everyone!).

A federal court recently wielded our good friend TwIqbal and blew out civil conspiracy claims in a pair of pain pump cases. The cases are virtually identical: both plaintiffs alleged a civil conspiracy between the pain pump manufacturer and a distributor, claiming that the defendants conspired to promote pain pumps for an off-label use in violation of FDA regulations. See Dean v. DJO, LLC, 2010 WL 1999295 (D. Or. May 17, 2010); Flint v. DJO, LLC, 2010 WL 1999302 (D. Or. May 17, 2010). The off-label use in both cases was the implantation of pain pumps into the shoulder joint after arthroscopic surgery. In one case, DJO was alleged to be a co-conspirator who participated in the design, manufacture, marketing, or distribution of the pain pump at issue (the Flint case). In the other case (Dean), the plaintiff did not allege that DJO had anything to do with the specific pain pump at issue, but rather was liable for conspiring to promote pain pumps (generally) off-label. Shades of Bone Screw!

The court easily tossed these claims on TwIqbal grounds. Luckily, Oregon’s civil conspiracy law has teeth – not only is it merely a theory of joint liability, rather than a separate tort, but the alleged conspiracy “must” also have the “primary purpose” to cause injury. See Dean, 2010 WL 1999295 at *1 (or Flint, 2010 WL 1999302 at *1 – they’re virtually identical opinions). Under TwIqbal, the plaintiffs had to plead “enough facts” to identify a conspiracy to cause harm that was “plausible on its face.” Id. at *1-2. Both plaintiffs failed to do so, because the best they could say was that the defendants conspired to sell off-label so they could…you guessed it…increase sales and “make a profit.” Id. at *2.

It may seem that these cases are sui generis, because Oregon strictly limits the application of civil conspiracy. But there are a couple broader lessons lurking here. First, as our cheat sheet shows, TwIqbal is our friend on the defense side of the aisle. No-brainer, right? But one of the most powerful features of TwIqbal is its ability to clear out the underbrush of ancillary (but dangerous) claims at an early stage. “Conspiracy” and “FDCA violation” seem to be particularly likely targets for early TwIqbal motions, since it’s easy to mouth the words, but hard to back up the cheap talk with facts. And as TwIqbal becomes more entrenched, maybe plaintiffs’ lawyers will stop throwing the kitchen sink into every pleading. Hey, we can dream.

These cases are also interesting in the specific context of pain pumps (which seem to feature unusually poor pleading), or really in any case where product ID appears to be an issue. Plaintiffs’ usual response is, sue everyone and let the court or the defendants sort it out. Aggressive use of TwIqbal should put an end to that practice. Or so we hope.