Photo of Stephen McConnell

By now, we were supposed to be on a tropical beach, reading a Booker prize short-lister and twirling a tiny tangerine-colored umbrella in a sneaky-evil drink.  But somehow we won a few extra days in the Philly ice-box.  Thanks, last minute (and mysterious) “aircraft maintenance.”  Thanks cruel fate.  Like Edith in Downton Abbey, mayhaps we simply were not destined to be happy.

There’s only one thing that can lift our slushy spirits. (Okay, maybe two, if you count those charming movie scene reenactments by a guy and his boss’s beagle.)  That’s right – it’s TwIqbal time.  At the end of 2013 we were greeted by a jolly, straightforward application of TwIqbal in Witt v. Howmedica Osteonics Corp., 2013 U.S. Dist. LEXIS 181203 (S.D. Fla. Dec. 30, 2013). Witt was a medical product liability action where a plaintiff claimed injury from implantation of an artificial knee.  The Amended Complaint includes all the usual claims, such as design defect, failure to warn, negligence, and breach of warranty.  The court was annoyed that the Amended Complaint was a “shotgun pleading.”  That is, each count begins by incorporating all preceding paragraphs.  Because the Eleventh Circuit has repeatedly criticized shotgun pleadings and held them to violate Federal Rule of Civil Procedure 10(b), which requires each claim to have its own paragraph stating a separate court, the Witt court had no problem dismissing the entire Amended Complaint without prejudice.  Witt, 2013 U.S. Dist. LEXIS 181203 at *4.

But wait.  There’s more.   Or less – depending on how you look at it.

The Amended Complaint was bereft of any factual allegations about what was defective in the product.  The Amended Complaint alleged that the prosthesis was defective and unreasonably dangerous in that it “contained unreasonably dangerous design defects such as potential of the knee to loosen after being implanted, cause imbalance and locking, and was not reasonably safe as intended to be used.…”  Witt, 2013 U.S. Dist. LEXIS 181203 at *5-6. The court observed that a prosthesis is “a complex device; without specific allegations as to the components which Plaintiff alleges are defective and how those components are defective, Defendant cannot answer.”  Id. at *6.  It turns out that the only thing we really know is defective is Plaintiff’s Amended Complaint.

The Amended Complaint is similarly reticent about the warning’s alleged inadequacy.  The Amended Complaint did not allege any facts as to the content of any warnings given.  It states only that “Defendant failed to give proper warnings and that the warnings were ‘inadequate.’”  Id. at *7.  That is merely a recitation of the elements of this cause of action.  That is a blizzard of words.  It is about as helpful (and, probably, untrue) as the stuff we hear from airlines.  Bon voyage to Oblivion, you empty, conclusory complaint.

The negligence claim is just as unsatisfying.  The Amended Complaint states that Defendant had a duty to exercise reasonable care and to warn of any dangers, and breached said duties by “failing to exercise due care under the circumstances,” and failing to “include adequate warnings.” There are “no facts as to what failures occurred, how those failures took place or why, exactly, Defendant’s actions are breaches.”  Id. at *7-8.  The negligence claim gets dismissed and deplaned.

Plaintiff’s claims for breach of express and implied warranties get canceled for much better reasons than our late, lamented flight.  First, the court held that Florida requires privity for both implied and express warranty claims.  Id. at *8.  Next, the court rejected plaintiff’s semi-clever argument that privity should not be required in light of the learned intermediary doctrine.  Plaintiff argued that “she need not allege privity because of the learned intermediary doctrine and because it is hospitals or doctors who purchase the devices to be implanted.”  Id.  The court did not buy this effort to mix apples and papayas.  The learned intermediary doctrine “permits a manufacturer to discharge its duty to warn by providing physicians with adequate information about risks associated with their products…. The doctrine does not implicate claims for breach of express and implied warranties.”  Id. at *9.

That’s a solid, snappy application of TwIqbal by the S.D. Fla. Court.  It warms our scurvy hearts.  It almost makes us forget that we were supposed to be at a swim-up bar right about now, dodging stray volleyballs and barbs from the DDL heirs about how we look like a reject from a Tommy Bahama catalogue.