One hundred twelve years ago this Friday poor President McKinley was assassinated in Buffalo by an anarchist wannabe. It took the President a little more than a week to expire, and then Theodore Roosevelt (he hated being called “Teddy”) became the youngest (up to that point) man ever to become POTUS. We have been thinking about TR quite a bit lately, ruminating on the virtues of speaking quietly while carrying a big stick. TR had a remarkable career in all kinds of ways. He’s right up there with Sam Houston and TR’s one-time buddy William Howard Taft in boasting all-time great resumes. Amidst all his accomplishments as a historian, naturalist, and politician, there is this: TR dropped out of Columbia Law School, deciding he would rather govern than litigate. He probably would not be a reader of this blog. He’d rather write something on his own, or run something, or kill something.
We, by contrast, are not going to charge up any hills, or win a Nobel prize, or put a water buffalo head on our library wall. We write about cases. Some of them are dramatic enough, at least for our taste.
Stop us if you’ve heard this one before. Actually, you pretty much have heard it before, or at least something very like it. Last Friday we discussed an excellent Louisiana federal decision tossing a device case on preemption and TwIqbal grounds. This week we have another Louisiana federal decision with a robust application of TwIqbal. The case is Kennedy v. Pfizer, Inc., 2013 U.S. Dist. LEXIS 123292 (W.D. La. Aug. 28, 2013). Kennedy was decided in the Western District of Louisiana, instead of the Eastern District, and it is a drug case instead of a device case. Nevertheless, it is further proof of how the federal courts in Louisiana are starting to insist on pleadings that go beyond the boilerplate. Maybe the courts there have simply seen enough meritless cases, and they have simply had enough.
The Kennedy case involves a claim that a drug caused the decedent to suffer from Stevens Johnson Syndrome (SJS). SJS cases usually involve awful facts. Anyone — any juror, any judge, and any lawyer — would feel sympathy for the plaintiff. The Kennedy case is no exception. The plaintiffs alleged that SJS caused the decedent to feel a “burning sensation from the inside out of body beginning in her throat area.” The plaintiffs also alleged that the decedent “suffered hair loss, coughed up black objects and went into a coma.” Finally, the plaintiffs attributed the decedent’s death to the drug.
Those are brutal factual allegations. To constitute a lawsuit, those allegations need to fit within cognizable legal theories. Here, the plaintiffs offered several legal theories, including that the defendant was negligent, that it failed to perform adequate testing of the drug, and that “through advertising, label promotion, and other communications…made intentional misrepresentations to physicians and the public” about the safety and efficacy of the drug. Kennedy, 2013 U.S. Dist. LEXIS 123292 at *5.
As with last week’s case, the court initially concluded that any product liability claims must arise under the Louisiana Product Liability Act (LPLA), which provides the exclusive theories for recovery. All claims that fall outside of the LPLA must be dismissed. Thus, in Kennedy the claim of failure to test was not a claim under the LPLA. Therefore, it was dismissed. The court proceeded to go through the various theories that potentially might have found some sort of home within the LPLA, and concluded that the Kennedy complaint did not satisfy the requirements of the LPLA and TwIqbal.
1.Construction or Composition
The plaintiffs did not articulate how the drug ingested by the decedent “deviated from its intended composition or construction.” Kennedy, 2013 U.S. Dist. LEXIS 123292 at *7. In its opposition brief, the plaintiffs offered a “superficial allegation without support,” but that does not cut it under the LPLA. Id. at *8. Indeed, such generalities would not cut it under manufacturing defect law anywhere.
The plaintiffs must allege a specific design defect, and must also allege “how the design defect is either caused by or relates to the injury in question.” Id. at *9. As in most jurisdictions, Louisiana does not permit a jury to infer defect from the mere fact that the injury occurred. Bad things happen. Side effects happen. That does not mean there was a defect. If it did, no drug or device could be sold in our land of the free and litigious. The Kennedy complaint contained generalities about how the design was defective and how its risks exceeded its benefits, but the complaint was bereft of how the design was “defective or what aspect of the design caused the injury.” Id. at *10.
3. Inadequate warning
Here is what the plaintiffs said in their complaint about inadequate warning: “The warnings given did not accurately reflect the symptoms … or severity of the injuries … full and proper warning should have been given with respect to the use of this drug.” Id. at *12. Well, you could probably drop those allegations into any drug case. They say almost nothing. The plaintiffs failed to assert “a causal connection between the claimed inadequate warning and Kennedy’s resulting damage.” Id. They did not allege “a dosage amount; plaintiffs have not alleged who administered the drug. In fact, there is not even an allegation that a physician prescribed the medication for the decedent.” Id. The court would not presume those facts. Nor would it interpret the hazy allegations as a ticket to discovery.
4. Express Warranty
Express warranty is the only LPLA theory that might conceivably embrace the plaintiffs’ criticisms of the marketing of the drug. But, as with the other legal theories in the Kennedy complaint, the plaintiffs’ allegations are threadbare. The plaintiff failed to show how the drug marketing “suppressed information, helped the company gain a market share, or induced persons to use the drug under the ruse of safety.” Id. at *14.
In sum, as with last week’s Louisiana case, the court applied TwIqbal and the LPLA with a high degree of rigor, and ended up dismissing an entire complaint for want of factual support.
ANSWER TO YESTERDAY’s TRIVIA QUESTION: “The Triple Lindy”, Thornton Mellon (played by Rodney Dangerfield), and Back to School. The ocular proof is here.