This post is from the non-Reed Smith side of the blog.

This is apparently the question the court was asking in deciding whether to dismiss Dilley v. C.R. Bard, Inc., 2014 U.S. Dist. LEXIS 47066 (C.D. Cal. Apr. 3, 2014).  Now Shakespeare may have been using “wherefore” to have Juliet ask the question “why.”  Why, of all the families in Verona, does Romeo have to be a Montague?  But, for our purposes, we’ll take the modern translation.  Where is the defect?  Turns out it wasn’t in the complaint.  We’ll try to keep today’s post as short as we believe the complaint in this case was.

The case involved a surgical mesh used to repair plaintiff’s hernias.  Plaintiff developed chronic pain post surgery and three years later he had revision surgery, including removal of the mesh.  Id. at *1.  Plaintiff’s terse complaint alleged three causes of action.  First, plaintiff attempted to plead a manufacturing defect by simply alleging that the device “possessed a defect.”  You could argue, isn’t a defect, a defect?  After all, “what’s in name?  That which we call a rose by any other name would smell as sweet.”  That might work for Juliet, but in a products liability action, simply calling something a defect isn’t enough.  For a manufacturing defect, plaintiff “must identify/explain how the [product] either deviated from the [manufacturer’s] intended result/design or how the [product] deviated from other seemingly identical [products.].”  Id. at *8 (citation omitted).  The same lack of specificity was the downfall for plaintiff’s negligent design defect claim.  Id. at *9-10.  And, of course, under California law, there is no strict liability design defect for medical devices.  Id. at *9.

Plaintiff’s failure to warn claim similarly failed because plaintiff did “not identif[y] any warnings that were given . . . let alone how they were allegedly deficient.”  Id.  at *11.  But that wasn’t plaintiff’s only pleading mistake.  The complaint also included a medical malpractice claim against plaintiff’s surgeon.  In the malpractice allegations, plaintiff alleged the surgeon “was aware of the problems associate with the use of defendants’ [product] or reasonably should have been aware of the problems associated with the use of them.”  Id.  So, plaintiff pleaded himself right into the learned intermediary defense.  “Under California law, the learned intermediary’s prescription of the medical devices in light of the knowledge of the risks precludes a failure-to-warn claim.”  Id.

The complaint also contained a request for punitive damages.  But, you’ve probably guessed by now based on the substantive allegations – or lack thereof – that plaintiff failed to meet “even the most lenient pleading standard” available for punitive damages.  Id. at *12-14.

It would certainly be an overstatement to say “for never was a story of more woe than this.”  But, the allegations in Dilley are among some of the most woeful we’ve seen.  And the dismissal, for us, is only the sweet without the sorrow.