A nifty new decision, Kester v. Zimmer Holdings, Inc., 2010 U.S. Dist. Lexis 110403 (W.D. Pa. Oct. 18, 2010), popped up on one of our automatic searches this morning. It’s a sequel to the even niftier Kester v. Zimmer Holdings, Inc., 2010 WL 2696467 (W.D. Pa. June 16, 2010), that we reported on earlier. In that post we mentioned that the plaintiff had been given leave to amend, and we wondered what would happen.
Now we know.
In Kester I the court quite rightly got all over the plaintiffs for simply pleading “defendants” this and “defendants” that where the plaintiff had sued several quite dissimilarly situated defendants – it’s a pain pump case, and for one thing, the plaintiff sued both makers of the pump and makers of the drug used in the pump.
Turns out, right off the bat, it was a good thing for defendants to make that motion. It turns out that the plaintiff was either really lazy or had a really bad case against most of those she sued. Her response was to drop every defendant, except one, and simply replace “defendants” with the name of the unfortunate one that remained. “The Amended Complaint names Zimmer as the sole defendant. . . . [and] simply replaces the word ‘defendants’ with ‘Zimmer.'” 2010 U.S. Dist. Lexis 110403, at *3, *8.
We’ve wondered before if there’s something about these pain pump cases that attracts either really lousy or really lazy pleaders, and given what just happened in Kester we’re scratching our heads again. That plaintiff would simply drop five defendants rather than bother to plead a proper case against any of them has us yearning for the good old days when Rule 11 really had teeth.
But we digress.
The last remaining defendant – you guessed it, Zimmer – filed a second Rule 12 motion and got the court to bounce every claim in the amended complaint that it moved against. Those were breach of implied warranty and fraudulent concealment. Fraud fell under Rule 9(b) this time rather than (to be technical about it) Twiqbal. That’s hardly surprising, because any allegation broad enough to encompass “defendants” generally is very likely to be too vague to meet 9(b)’s “particularity” requirement when any given defendant’s name was rotely substituted and no other amendment made.
And so it was.
(1) Plaintiff can’t cheat by alleging misrepresentations in the alternative. That is alleging a misrepresentation “to Plaintiff and/or Plaintiff’s healthcare providers, and/or the FDA” doesn’t cut it. “Alleged misrepresentations made to other individuals cannot take the place of allegations in the Amended Complaint that constitute fraud against Plaintiff.” Kester II, 2010 U.S. Dist. Lexis 110403, at *11 (emphasis original). We really like that one. “And/or”s are another pet pleading peeve of ours.
(2) Plaintiff can’t cheat by throwing up a laundry list of “misrepresentations” without alleging when they were made or by whom. Such “averments are deficient of any specific facts and are conclusory in nature” in that they “neither identif[y] any particular person who made the alleged misrepresentations nor specif[y] the time or place such misrepresentations or omissions were allegedly made.” Id. at *10.
Not only that, the same allegations also failed as a matter of law. In Pennsylvania, a plaintiff can’t bring fraud or implied warranty claims bases on allegations that the manufacturer didn’t say what it should have.
[P]laintiffs are barred from asserting a non-negligence cause of action against the manufacturer of a pharmaceutical device. . . . The Pennsylvania Supreme Court has determined that negligence is the sole theory upon which a plaintiff may recover against a prescription drug manufacturer in a suit based upon the manufacturer’s failure to warn.
Id. at *12 (citing the usual cases). The court properly observes that this reasoning extends as well to medical devices. Id. at *12-13 (ditto).