“April is the cruellest month,” according to T.S. Eliot, and maybe that makes sense if one lives in England or New England, where early Spring toggles constantly between sun and mud. The month is a tease and a torture. Another poet was getting at much the same thing when he wrote:
You know how it is with an April day
When the sun is out and the wind is still,
You’re one month on in the middle of May.
But if you so much dare as to speak,
A cloud comes over the sunlit arch,
A wind comes off a frozen peak,
And you’re two months back in the middle of March.
“Two Tramps in Mud Time,” Robert Frost.
Perhaps all of this will sound strange and unfair to our friends in the sunbelt. But even there, the caprice of April is undeniable. April sometimes pushes us toward nihilism, or at least learned helplessness.
Life in itself
An empty cup, a flight of uncarpeted stairs,
It is not enough that yearly, down this hill,
Comes like an idiot, babbling and strewing flowers.
“Spring,” Edna St. Vincent Millay.
Cruel, inconsistent, and idiotic, April certainly seems to be the most poetic month. It is filled with promises and cheats. Chaucer and Whitman based their finest works in April. Unsurprisingly, April is National Poetry Month in these United States.
It is also a suitable month to recommence that television tone poem on the 1960s (a decade that reminds us of April’s inconstancy and turmoil), “Mad Men.” This Sunday starts season six with an episode called “The Doorway.” The show has been filled with doorways — with characters walking through them, and one life’s end being framed against a doorway. The finale of season three was titled “Shut the Door. Have a Seat.” The 1960s virtually became a code word for change and strife. An especially crazy rock singer who fancied himself the “Lizard King” took the name of his group from Huxley’s “Doors of Perception.” The 1960s reached a crescendo of craziness and chaos in 1968, which figures to be the setting for this season of Mad Men. We remember April 1968 as being terribly cruel.
Today is the 40th anniversary of the first call made on a cellphone. Whether that is cause for celebration or lamentation is a matter of personal taste. Some of us remember those early cellphones that could barely fit in a shoebox – or trolley car. They also could not take pictures, play songs, or look up the episode guide for “Buffy the Vampire Slayer.” Maybe life pre-cellphones was better in the sense that we were not always so gruesomely accessible back then. There was certainly less risk in having an inopportune ring go off in a courtroom, quickening the ire of a baleful judge.
April has had more than its share of big legal events. In April 1938 the Supreme Court issued its opinion in the Carolene Products case. Footnote four in that opinion — the most famous footnote in American legal history — was not exactly poetic, but it was prescient in laying out different levels of judicial scrutiny, with rigorous scrutiny reserved for “prejudice against discrete and insular minorities.” Today in particular is a big day in legal history, for on April 3, 1895, Oscar Wilde commenced his libel case. Not only did he not win; the case backfired and put him on the road to prison. Lesson: do not file a lawsuit unless you can prove your allegations.
We see that lesson playing out every day in drug and device cases, albeit without the Wildean wit, poetry, or tragedy. In Chapman v. Abbott Laboratories, 2013 U.S. Dist. LEXIS 40806 (M.D. Fla. March 14, 2013), the plaintiff’s pleadings simply did not pass muster. Yes, Chapman was issued in March, but we did not see it until April, so don’t get in the way of our theme. Anyway, the plaintiff in Chapman alleged that his chordoma was caused by his Humira treatment and that Humira’s designer and manufacturer, Abbott, failed to warn of the risks of cancer associated with Humira. But the plaintiff’s case contained a big problem: the Humira label actually did warn of those risks. Abbott attached a copy of the Humira label to its motion to dismiss. The label was not attached to the complaint. The plaintiff resisted Abbott’s motion to dismiss and argued that such a motion must be evaluated strictly on the pleadings. But a court need “not accept as true allegations in a complaint that contradict or are inconsistent with judicially-noticed facts.” Chapman, 2013 U.S. Dist. LEXIS 40806 at *5-6. Paragraph 15 of the complaint stated that “Defendants delayed warning about lymphoma and other cancers. Indeed, even when the FDA exercised its legal authority to ‘require’ warnings within 30 days, Abbott stalled until early 2010, after Chapman received his first injections and nearly died. This is unconscionable behavior.” Id. at *6. That all sounds pretty bad. But this claim was “squarely contradicted by the February 2008 judicially-noticed drug label that does contain warnings about malignancies.” Id. Accordingly, the plaintiff’s failure to warn theory, as pled in the negligence and strict liability counts was “implausible.” Id. Moreover, even though those negligence and strict liability counts also referenced other theories, such as defective design and manufacturing, the “overarching theme” was failure to warn. Id. Because those counts all depended on an alleged failure to warn, they were dismissed in their entirety.
The plaintiff also alleged misrepresentation. The defendant’s motion to dismiss argued that the misrepresentation claim flunked the specificity requirement of Fed. R. Civ. P. 9(b). The plaintiff acknowledged Rule 9(b)’s specificity requirement, then recited the elements of the tort of negligent misrepresentation, and then simply stated as follows: “The Complaint, when taken as a whole, meets the particularity and cause specific elements that state a claim for relief under a theory of negligent misrepresentation.” Id. at *9. Hmmm. Maybe this is merely a case of hope triumphing over reason, or at least hope springing eternal. The court disagreed with the plaintiff’s argument, such as it was, and held that the complaint was “devoid of specifics regarding that time, place and substance of the alleged fraud.” Id.
Finally, the plaintiff’s claims for breach of the implied warranties of fitness for a particular purpose and merchantability were dismissed because the plaintiff did not allege privity with Abbott and or that the plaintiff had provided notice of the breach to Abbott. Both privity and notice are required by Florida law. Those claims, too, were dismissed. Id. at *10.
Even with all those dismissals, the court gave the plaintiff the opportunity to amend the complaint. Nothing cruel about that.