After a Memorial Day weekend filled with picnics, barbeques and full stomachs, we have a quick post for you. We recently read the opinion in Mattos v. Eli Lilly & Co., 2012 U.S. Dist. LEXIS 71519 (D. Ka. May 23, 2012), which, much like those barbeques and picnics, had a lot of good things to digest. But a portion of the ruling was like the extra hamburger that you shouldn’t have had. It’s just sitting there, feeling not right, and worrying you.

The Mattos plaintiff claimed that Cymbalta, a depression medication, caused her diagnosis of Stevens-Johnson Syndrome. She brought failure to warn and design defect claims under the Kansas Product Liability Act (KPLA), along with a Kansas Consumer Protection Act Claim and a host of common law negligence, warranty and misrepresentation claims. Id. at *1. The easily digestible portion of the opinion is the court’s decision to dismiss all the common law claims because, like with many states’ product liability statutes, they were merged into or subsumed by the KPLA. Id. at *4-9.

The portion that makes us a bit queasy – the part that sticks in our craw (or “sticks in our crow” if you believe this explanation of that old phrase) – is the court’s decision not to dismiss plaintiff’s design defect claim. The defense argued that, under TwIqbal, the plaintiff needed to plead an actual defect to state a design defect claim. Id. at *17-18. That seems reasonable. The court even agreed that TwIqbal requires plaintiff to plead supporting facts, not just conclusory or formulaic allegations. Id. at *19.

But then the court went on to accept a set of allegations that appear to be as formulaic as they come: plaintiff was injured; the drug had an unnamed defect that tended to cause that injury; due to the unnamed defect the drug’s risks outweighed its benefits, particularly when compared to alternative drugs; and it was somehow feasible to make an alternative drug without the unnamed defect. Id. *19-20. Those allegations can be made in just about any pharmaceutical case, with no particular supporting facts needed at all. It smacks of pleading by formula – find template, insert name of drug and injury, state claim – which is what TwIqbal does not allow.

Also, reference to other drugs on the market doesn’t help. As we’ve said before, other products are just that – other products. They are not alternative designs. They are merely a list of “completely different drugs that [plaintiff] could have taken.” Salvio v. Amgen, Inc., 2012 U.S. Dist. LEXIS 19009, *22 (W.D. Pa. Feb. 15, 2012).

Now, we understand that the plaintiff might have difficulty alleging a particular defect. As the court admitted in the Bartlett opinion that we recently criticized, drugs are often comprised of one-molecule and inactive ingredients, and therefore identifying a defect or alternative design is almost impossible. But that’s a reason to dismiss a claim, not allow it.

In any event, fortunately, the Mattos opinion is only on a motion to dismiss, not on a summary judgment motion like in Bartlett. There is still time for the court, presumably after some discovery, to re-address plaintiff’s design defect claim on summary judgment and dismiss it. Maybe that would alleviate that uneasy feeling in our stomachs.