Perhaps you’ve seen the video of trees disappearing into a Louisiana bayou sinkhole. It is dramatic and it reminds us of the feeling that Louisiana litigation has occasionally served up to us over the years. Maybe it is the steamy climate (we mean the legal stuff, not the astonishing humidity), with plaintiff lawyers doing A-plus imitations of Foghorn Leghorn, that makes litigation in the Pelican state … unique. Right now we are thinking of an especially flamboyant Louisiana lawyer who is crazily combative (we were at a deposition where he threw punches), crazily successful, and, not to put too fine a point on it, crazily crazy. The fact that many of you out there are scratching your heads and wondering exactly which crazy Louisiana plaintiff lawyer we are talking about says something. But meanwhile, some really smart judges down there have been sneaking up on us with really smart decisions. Les bon temps rouler, indeed.
The case of Scianneaux v. St. Jude Medical, S.C., Inc., 2013 U.S. Dist. LEXIS 117081 (E.D. La. Aug. 19, 2013), is a gumbo bowl of tasty legal reasoning. In just a few pages, the judge clearly and elegantly disposes of a device case that might have provoked bloviation and evasion in some other courts. The court correctly applied the TwIqbal pleading standard to swat away the usual “parallel claim” effort to circumvent preemption. You arrive at the inevitable conclusion before getting to the bottom of your glass of sweet tea. Or, if you are of a certain bibulous nature, your Hurricane or sloe gin fizz.
To be sure, the plaintiff had a few things to say. They just did not add up to a cognizable claim. The plaintiff had a defibrillator implanted in her in 2010. According to the plaintiff, the defibrillator was later recalled because “the leads on the device could result in the device failing to deliver a shock or conversely shocking the patient unnecessarily.” Scianneaux, 2013 U.S. Dist. LEXIS 117081 at *2. The plaintiff alleged that the defendant knew before the device was implanted in her that it was potentially defective, but did not disclose that fact. The plaintiff also alleged that the defibrillator did in fact malfunction and consequently had to be removed. The plaintiff asserted that in a surgery to replace the equipment she nearly died, had to be resuscitated, and suffered a stroke. She brought claims of negligence, breach of warranty, strict liability, and fraud. The defendant moved to dismiss the case for failure to state a claim.
As a preliminary matter, the court ruled that the Louisiana Products Liability Act (LPLA) provides the exclusive remedy for the product liability claims. Scianneaux, 2013 U.S. Dist. LEXIS 117081 at *7. So far so good. Then the issue is whether the LPLA claims could survive preemption, given that the defibrillator was a Class III device that made it through the FDA’s Premarket Approval (PMA) process. Federal law expressly preempts state law claims against a PMA device when the effect would be to establish “safety or effectiveness” standards that are “different from, or in addition to” the requirements for PMA products. 21 U.S.C. section 360k. Again, so far so good. The plaintiff seeks the typical refuge in the “parallel” action exception announced (whispered? hinted?) in Riegel. The plaintiff’s case could conceivably survive preemption if and only if the LPLA claim perfectly mimics a violation of FDA regulations. There has to be a state law claim that matches an FDA violation. Moreover, because of the pleading requirements in the Supreme Court’s Twombly and Iqbal decisions, that match must be specifically set forth in the complaint. But in Scianneaux, all the plaintiff gives us is that the defendant “deviated from FDA requirements” and “failed to comply with the FDA approved specifications for the device.” Id. at *10. What requirements? What specifications? What deviations? A crawfish will twirl an umbrella and dance in the street before you get answers to those questions. Those broad, bland allegations can be dropped into any complaint. And they say pretty much nothing. (Theoretically, a lawyer has no business even uttering those sweet nothings without having some factual basis, but before we see that requirement enforced the crawfish will not only dance, it will saunter into the Superdome just in time to kick a game winning field goal for the Saints.)
The plaintiff attempted to put some meat on the bare bones of the amended complaint by alleging that the recall by the FDA was the result of a failure to comply with FDA regulations. Not good enough, says the court: “[E]vidence of a recall alone does not show that the defendant failed to obtain pre-market approval or that it violated any FDA regulations.” Id. Moreover, the “plaintiff does not identify how the leads failed or how her injury was caused by defective leads.” Id. at *12. Like so many complaints we have the displeasure to see, and which are too often waved cheerfully through the litigation meat grinder, the complaint in Scianneaux was light on factual allegations and heavy on conclusory statements.” Id. at *11.
The court dismissed the amended complaint with prejudice. Let the good rulings roll.