Time travel is on our mind today. We should hasten to add that it is not a topic that usually absorbs us – otherwise we might squander what little credibility we have with our serious-minded readers. But a trio of things prompted us to think about time-travel. First, we will (soon, we promise) be discussing a nice TwIqbal case that came out more than a year ago and somehow managed to evade our DDL radar screen. Second and third are a couple of things we heard from a couple of clients. In one instance, in a litigation even more far-fetched and meritless than usual, with no science or logic to support the plaintiffs’ allegations, we commiserated with a company executive over a bushel of stupid emails written by low-level employees who stated opinions contrary to those of the company or anybody in it with knowledge or authority. Still, those self-indulgent emails propped up the litigation and the possibility of settlement-extortion. The executive wished he could climb into a time machine and smack four or five employees on their noggins before they authored the offending emails. The litigation would disappear. It would be like the fading photos in Back to the Future. But talk about self-indulgent; it’s not as if the time machine idea helps us put together a litigation plan. Plus, the time machine scenario has very little traction with judges and juries.
We also heard something from an in-house lawyer that made us think of time travel. This in-house lawyer is someone who, as far as we can tell, is pretty much always the smartest person in the room and who has unerring judgment on all things legal, political, and aesthetic. So when he told us that we ought to take a peek at the 2013 film About Time, we headed for our local Redbox to rent the movie. As always, his recommendation was right on. About Time did just so-so with the critics and the audience, and its marketing message was almost completely confined to the fact that it was directed by the same guy who directed Love, Actually. But it is good, actually. It is a funny and clever film about a family where the men, and only the men, have the capacity to travel backwards in time to times and places they actually were in their lifetimes. (Thus: no ability to park a bullet in Hitler’s head, or to stay the hand of George Eliot and stop her from writing those boring books inflicted on generations of hapless high school students.) As in Groundhog Day, the hero uses the great power of time travel to get a girl. Maybe there really is no higher use for time travel. As in The Butterfly Effect, there are unforeseen and unfortunate consequences to time-travel. Bill Nighy, who is incapable of looking or sounding uninteresting, is in it (just as he was in Love, Actually). Unlike most films, you won’t rue devoting two hours to watching it, muttering that you’ll never get that time back. When we think of the best all-time time-travel movies, we must now include About Time, along with the aforementioned Back to the Future and Groundhog Day, as well as The Terminator, Time After Time, Bill and Ted’s Excellent Adventure, Twelve Monkeys, and the 28 minute French film that inspired Twelve Monkeys, La Jette.
And now on to our little time-capsule case, Swisher v. Stryker Corp., 2013 U.S. Dist. LEXIS 185998 (W.D. Okla. March 14, 2013). The plaintiff claimed injury from a hip implant. He asserted a negligence per se claim, alleging that he sustained a cascade of health problems requiring additional surgeries, all proximately caused by the defendants’ violation of various regulations promulgated by the FDA. The plaintiff was trying to avail himself of the “parallel claim” exception to Riegel preemption. The defendant filed a motion to dismiss under Rule 12(b)(6), arguing that the complaint was bereft of facts demonstrating how specific FDA regulations were violated and how such violations caused the injuries.
The court agreed with the defendant, applied TwIqbal, and dismissed the case. The court reasoned that “more is required to make out a parallel claim than conclusory statements that a defendant violated multiple regulations.” Swisher, 2013 U.S. Dist. LEXIS 185998 at *7. Actually, this plaintiff offered more than most parallel-claiming plaintiffs offer, but it was still not enough. The plaintiff alleged that he was diagnosed with abnormally high levels of chromium and cobalt in his bloodstream, that the cup and cap components of the hip implant system were made of those two alloys, that microscopic metallic particles rubbed off from the metal surfaces of the cap and cup components, and that such rubbing off resulted from the defendants’ violation of PMA specifications and applicable Good Manufacturing Practices (GMPs).
The court held that the allusion to PMA specs and GMPs was “too conclusory to state a claim.” Id. at *8. The complaint did not specify the manufacturing defect, nor did it specify a causal connection between the failure of the specific manufacturing process and the specific defect in the process that caused the personal injury, nor did it state how the manufacturing process failed, or how it deviated from the FDA approved manufacturing process. In other words, the plaintiff supplied incantations, not facts.
Swisher is an important case because, as the court acknowledges, different courts sit on different points along the spectrum as to how many facts are needed to state a parallel claim. Swisher is at the more rigorous end of the spectrum, so we like it just fine. Going back in time to retrieve the Swisher case will not help us attain romantic love, save the life of civilization’s savior, or even permit us to put on a school presentation where Abe Lincoln tells us to “party on, dudes,” but it is another piece of ammo that helps us terminate parallel claim cases.