We do not hide the fact that we like the TwIqbal twins, Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Dismissals, even with leave to amend, are nice, but there is something more fundamental about requiring that pleadings provide meaningful information to the opposing party and the court about what the case is about. As product liability defense lawyers, we tend to focus on how the difference between an uninformative boilerplate complaint and a complaint that spells out the pertinent facts and claims matters to the defendant.
We and our clients find it easier to do things like answer, move to dismiss, and map out a strategy for the case when the complaint includes information like the product at issue, when it was used, what injury it allegedly caused, where and when that injury happened, and what acts or omissions allegedly create liability. If the complaint labels the causes of action being asserted, says what jurisdiction’s law is supposed to be implicated,and/or matches up the acts and omissions to the particular causes of actions, well, then that is just a bonus in our experience.
Not only do we use complaints to categorize cases by products, injuries, time of use in relation to events like label changes, lag from injury to filing, etc., but we have somewhere in our mind that at some point in the future we will be filing something with the court that includes a sentence like “plaintiff asserts causes of action for a, b, and c”and asks for something. It is helpful at that point, whether it be on a motion to dismiss not based on TwIqbal, a summary judgment motion, proposed jury instructions, or something else, to not have to argue about the plaintiff has asserted something different than the a, b, and c we listed. It is certainly helpful throughout the course of discovery, motions practice, and pretrial proceedings to have in mind the right a, b, and c so you are not wasting your efforts on α, β, and γ if א, ב, and ג are being asserted.
When it gets whatever motion or filing includes your listing of the causes of action being asserted by plaintiff, the court’s job will also be easier if the plaintiff cannot come back with a different listing from the same complaint. (Subsets are fine, as a plaintiff can certainly decide along the way that some claims should be dropped. Using a master complaint and short-form complaints in coordinated proceeding helps with some but not all of these issues.) As litigants, particularly drug and device litigants, are wont to do, the parties will argue about the law and the evidence/allegations, but at least the court should expect that the arguments will be over the same claims.
With some foresight, the court in Batchelor v. Pfizer, Inc., No. 2:12-CV-908-WKW [WO], 2013 U.S. Dist. Lexis 103974 (M.D. Ala. July 25, 2013), took plaintiff to task for the sort of “shotgun” and “threadbare” complaint that many courts let suffice in drug and device cases. Batchelor involves unspecified injuries with a hormonal contraceptive that allegedly posed a risk of bone density loss. The court felt so strongly about the need for a properly pled complaint that, when faced with a 12(b)(6) motion, it actually ruled based on its inherent authority and denied the motion as moot.
The approach did not change the result from what we can tell—the plaintiff still got to replead within three weeks—but it seems that the court was sending a message on pleading requirements. A message that the Eleventh Circuit had encouraged district courts to send even pre-TwIqbal. Id. at **2-3 (citing Fikes v. City of Daphne, 79 F.3d 1079, 1038 n. 6 (11th Cir. 1996); Byrne v. Nezhat, 261 F.3d 1075, 1129-31 (11th Cir. 2001)). We wonder when courts will take it upon themselves to screen complaints and issue “try again” orders sua sponte. Perhaps when dockets because less crowded and judges/clerks more motivated.
Our favorite part of the decision involves one of our favorite doctrines, the learned intermediary doctrine. Like many complaints in prescription drug cases, particularly the boilerplate complaints common in serial litigation, the plaintiff’s complaint in Batchelor “continues to insist that Defendant is liable because it failed to warn her.” Id. at **5-6 (emphasis in original). While Alabama law may have its issues, it clearly defines the duty to warn in prescription drug cases as a duty that runs to the prescribing physician (or healthcare provider). Because plaintiff alleged only that the manufacturer failed to provide her with adequate warnings, the warnings claims were legally insufficient as pled and were struck. Id. This is a bold, but not unprecedented, decision.
It is also underscores why we have ranted about the learned intermediary doctrine not being the learned intermediary defense. A defense will not require a plaintiff to amend her complaint to continue.
The court continued to address another common shortcoming, the lack of dates. In this case, the plaintiff did not allege when she took the drug at issue, among several factual allegations that were “missing from the complaint.” Apparently drawing on information from the briefing (presumably using its inherent authority to avoid converting the 12(b)(6) motion to a motion for summary judgment), the court noted that the date of use mattered because the drug’s label was changed to a black box in 2004 and it “cannot assess the adequacy of the warning to Plaintiff’s physician without knowing what – if any – warning appeared.” Id. at *7. We are not sure what would make the court assess the adequacy of the warning based solely on an allegation, but we agree the complaint needs to say when the plaintiff took the drug and what about the label was lacking at that time.
In rapid fashion, the court proceeded to tear apart the complaint for a more pronounced version of the dreck offered in many product liability complaints. “Shotgun pleading”—incorporating allegations from earlier sections—make it “virtually impossible to know which allegations of fact are intended to support which claim(s) for relief.” Id. (quoting Anderson v. District Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996), and Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001)).
Incorporation by reference is common in complaints, not just boilerplate ones, but there is a line where it makes no sense that all prior factual allegations are really supposed to a support the sixth claim being asserted. Whatever shotgunning the court saw in this complaint was enough for the court “to exercise its discretion to strike the complaint.” Id. But the court went on and ripped the complaint for not specifying the allegedly negligent acts or omissions, the provisions of the FDCA that were allegedly violated, and what aspect of the drug make it unmerchantable. Id. at **7-8. Again, even after TwIqbal, many product liability complaints could be similarly characterized. The Batchelor court was having none of it – “A case cannot rest on the court’s assumptions about a party’s theory of liability.” Id. at *8. As we said earlier, this vigilance may help the court weed through motions later.
For instance, analysis of a preemption motion—that one really is a defense—can turn on the information that was missing from this complaint and any wiggle room left to the plaintiff will get in the way of a tight analysis.
There is one aspect of the decision that we take out of order. It probably did not matter to the result given the many other failings in the complaint, but we do care about nomenclature. The court criticizes plaintiff’s label for one of her claims as “strict liability” when the Alabama Extended Manufacturers’ Liability Doctrine is not really strict liability. While how a claim is labeled may not, at first blush, seem like TwIqbal fodder, we have seen many cases where courts struggled with claims that did not fit within a box for a recognized cause of action. It may always be that those claims do not fit because they are not causes of action, but there is value to making sure there is a logical label on the box at the start.
This brings us to another discussion of nomenclature. Is TwIqbal a real word or just slang known to relatively few (unhip) lawyers? How does a combination of letters get to be real word? Is there some process outlined by a catchy Schoolhouse Rock song? Must it pass muster at a meeting secret tribunal of the editors of august dictionaries—excluding urbandictionary.com (which is seems more like the project from teens in suburban basements)? We can see that its letters would be worth 23 points (excluding multipliers) on some of the games on our iPhone and know that their lines for what is and is not an acceptable word were drawn up by Elbridge Gerry’s mad descendants. But we think TwIqbal should be a real word, even with a verb form. We have seen U.S. Presidents make up words like “normalcy” and “decider” that have become semi-real words. We have seen real legal terms like “hearsay” and “the Chewbacca defense” enter into common parlance. So why not TwIqbal? It even has abnormal capitalization, which the young people are sure to enjoy.