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As another work-week starts, we thought we’d talk about beginnings – in particular, beginnings to adversarial contests.  They almost always begin after the adversaries and the stakes have been identified.  In the NHL, for instance, the New Jersey Devils learned this weekend that they will play the Rangers in the next playoff round.  The teams have been identified and we know what they’re playing for – a spot in the Stanley Cup Finals.  So now their series begins (tonight).  In the world of reality TV, America’s Got Talent begins tonight.  The contestants have been identified and we know what’s at issue . . . . whether America will accept Howard Stern on prime-time TV!

But unfortunately product liability lawsuits don’t always begin this way.  Sometimes plaintiffs will sue and name particular defendants without even knowing what product may have hurt them or who manufactured it. 

In Parker v. Howmedica Osteonics Corp., 2012 U.S Dist. LEXIS 62477, at *4-5 (May 3, 2012), for instance, the plaintiff brought product liability claims against three manufacturers of knee replacement hardware, claiming that hardware used during her knee surgery was defective and injured her.  Her allegations against the three defendants were in the alternative.  Id.  In other words, she didn’t know which defendant manufactured the hardware.  In fact, she didn’t seem to know whether any of the defendants manufactured the hardware.  So she also sued four fictitious corporations and individuals.  Id. at *5 n.1. 
That hardly seems like a fair way for three defendants to begin a lawsuit.  Now, maybe, one could envision a scenario in which such a scattershot beginning to a lawsuit might be proper.  But the facts in Parker sure don’t seem to indicate that it is such a case.  The plaintiff didn’t even review all of her own medical records before suing the three defendants:
The present record suggest that [the plaintiff] has not yet obtained a copy of all of her medical records, which may include a more precise description of the knee replacement product that was implanted during [the plaintiff’s] surgery.

Id. at *7.  That sure seems like something the plaintiff should have done before beginning her lawsuit.  Even if the medical records didn’t offer an answer, the plaintiff had other options.  She could have, for instance, asked her doctors or the hospital to identify the hardware implanted in her knee. 
In any event, and not surprisingly, the defendants moved to dismiss.  There’s mostly good news in the court’s decision but there’s also some not-so-good news.  The good news is that the court found plaintiff’s complaint “deficient because it fails to identify the product that allegedly caused her injuries.”  Id. at *8.  That is certainly good news.  A plaintiff shouldn’t be allowed to roll forward into full-blown discovery based on guesstimates of who the defendants are.  In fact, the court had already stayed discovery in this and a related case.  Id. at *11-12.  That’s more good news. 
The not-so-good news is that the court “decline[d] to dismiss [plaintiff’s] complaint.”  Id. at 8.  The court instead granted a motion under FRCP 12(e) for a more definite statement of plaintiff’s complaint.  Id.  The court gave plaintiff 30 days to review her medical records and amend her complaint to name the right product.  Id. at *8-9.  We would have preferred a dismissal, even if it was without prejudice.  With that, in the least, the statute of limitations may have run further while the plaintiff conducted the review that she seemingly should have conducted before filing suit.
The court also held that, if plaintiff still cannot identify the product after reviewing her own medical records, she could file a motion with the court describing limited discovery that she believes is necessary for her to identify the product and its manufacturer.  Id. at *9.  During this time, the stay on general discovery would remain in effect.  Id. at *12.  This part of the opinion doesn’t thrill us either.  We aren’t enamored of the notion that a plaintiff can begin a lawsuit unsure of whether she is suing the right defendants, yet still somehow get discovery from those defendants – limited or not. 
That said, the court did give the defendants the opportunity to respond/object to any motion by plaintiff for discovery on the identity of the product.  That opportunity should include the chance to argue that the plaintiff is entitled to no discovery whatsoever.  The plaintiff should not be allowed discovery unless she can show that she conducted a proper review of her medical records and exhausted other avenues available to her to identify the product – something that seemingly should have happened before she began the lawsuit. 

It will be interesting to see how the case proceeds, and we may know more after plaintiff’s 30 days are up.  And by that time we may also know how prime-time America and Howard Stern mix.