This post is from the non-Reed Smith side of the blog.
We’ve all been through it. We’ve spent painstaking hours drafting a brief or a memo. We’ve combed through each page, paragraph, and sentence. We’ve cut, copied, and pasted. Then, when we are satisfied with the result we hand it to someone else to review. We move on to something else, almost forgetting about what we conceived of as masterful and persuasive prose. Until . . . we get the redline.
While there are certainly times when you don’t agree with “suggested” edits that you are given, more often than not the person playing the role of the editor does what you previously believed to be impossible – he/she has improved your product. Inconceivable? Not really. That’s the job of an editor. First, the editor is coming at the project with fresh eyes and more objectivity. Second, a good editor will read the entire piece first giving him a different perspective than the author. Third, think of your editor as your guinea pig. If he didn’t “get it,” it’s unlikely anyone else will either. Fourth, editors pay attention to detail that authors often overlook. Finally, your editor is your partner. Not in the law firm sense, but in the collaborative process sense. You both want the same thing – a better brief.
So, what to make of all that red ink (yes, we are dating ourselves by recalling when edits were received on actual hard copies)? We remember, fondly, what one of our first legal editors told us: “Don’t get anxious about all the red. If it stunk I would have simply handed it back and said start over. The fact that I could edit it meant there was something there worth working with.” True or not, it gave us solace. And, we certainly hope that reading all of those edits over the years has rubbed off on us – both as an author and an editor.
We don’t think the plaintiffs in Dunbar v. Medtronic, Inc., 2014 WL 3056107 (C.D. Cal. Jun. 25, 2014) are looking that affectionately on the editing job the court did on their complaint. Two weeks ago, we reported on the latest InFuse victory in Dunbar in which the court dismissed all of plaintiffs’ claims except fraud and misrepresentation. In a companion decision, the court granted defendant’s motion to strike portions of plaintiffs’ complaint under Federal Rule of Civil Procedure 12(f) as immaterial and unnecessary.
It’s not a particularly common practice, and we don’t recall reporting on this type of motion (certainly not in recent history). Usually, we are condemning complaints that don’t contain enough facts — complaints that don’t meet the Twiqbal standard. When we are quoting Rule 8(a)(2), our emphasis is usually on the second half of its requirement that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” We hunt for allegations that offer any basis for plaintiff’s claims and argue that mere conclusions without sufficient factual support warrant dismissal.
In Dunbar, the court had already determined that plaintiffs had met not only Rule 8, but also Rule 9’s heightened pleading requirements for fraud. But what about the “short and plain” part of the standard? Most pharmaceutical and medical device products liability complaints are anything but short and plain. They go on and on and on for hundreds of paragraphs detailing the product’s regulatory history, summarizing medical literature, sometimes even discussing other products, other cases or other investigations. To what end? Almost always these allegations have little or no relevance to plaintiff’s causes of action. They are rarely tied to the particular plaintiff or his treating physician. But we often see them quoted in the press. That might not be plaintiff’s counsel’s primary motivating factor, but it can’t be discounted. Nor should we overlook the throw-in-everything-and-hope-something-sticks style of pleading. Regardless of how the allegations get in the complaint, the reality is most of them don’t need to be and probably shouldn’t be there.
That’s why we thought the Dunbar decision warranted mentioning – as a reminder that defendants don’t need to accept the complaint on its face. We can ask the court to “edit” it. In this case, the defendant sought to strike three categories of information: 1) Senate committee reports regarding an investigation of the defendant’s relationships with some of its consultants; 2) a set of articles disparaging defendant’s clinical trials; and 3) references to other lawsuits and settlements. Dunbar, 2014 WL 3056107 at *2-3. As to all of the allegations the court found that
they do not state facts that expand or provide further meaning to the claims. The only purpose served by the Subject Allegations is to provide some form of evidentiary basis for Plaintiffs’ claims, which is not appropriate at the pleading stage.
Id. at *3. We’ve alluded to another purpose, but we’ll accept the court’s too.
The plaintiff’s argument in response was that these allegations are necessary to satisfy the heightened pleading requirements for fraud. The court found just the opposite. “[T]hese allegations have no direct bearing on the fraud claims. Plaintiffs fail to allege that they, or any of their surgeons relied on any of the materials contained in the Subject Allegations.” Id.
So, if you ever wished you could take a red pen to a wordy and unnecessarily complicated complaint, don’t forget about a motion to strike. And, if you want to take a red pen to this post, be our guest. We welcome the editorial process.