Holism is a concept modernly used most commonly in medicine –treating both the body and the mind. We don’t see it too often in legal parlance as it’s come to be associated with a somewhat touchy-feely approach. Not something litigators are often accused of being. At its core, holism is a philosophy based on treating something as more than the sum of its parts. So when we read in Schmidt v. C.R. Bard, 2014 U.S. Dist. LEXIS 146459 (S.D. Ga. Oct. 14, 2014) that on a motion to dismiss, the judge was “[r]eading Plaintiff’s Complaint holistically,” we were fairly sure we weren’t going to be happy with the results. And we were right.
A holistic approach to pleadings is precisely what TwIqbal aims to prevent. Either the complaint contains sufficient and specific factual allegations that go beyond speculation and legal conclusions or it doesn’t. Using the TwIqbal standard, a complaint is only as good as its parts; its allegations. You can’t fix bad pleadings by reading into them more than what is there. But we think that is exactly what the court did in this case.
The suit involves the implantation of a mesh device to repair a hernia. Plaintiff ultimately had to have the device removed and alleges permanent injury as a result. Id. at *1-2. Assessing whether plaintiff sufficiently pleaded a design defect claim, the court starts off with a general statement we support: “a bald assertion that the [device] was defective in design . . ., was unreasonably dangerous, and the foreseeable risks outweighed the  benefits would be insufficient to survive a motion to dismiss.” Id. at *8. But then the court goes on to conclude, and repeatedly state, that plaintiff listed 9 possible design defects and therefore survives a motion to dismiss. The court never identified what those 9 “defects” were, so we looked at the complaint ourselves.
The first 6 “defects” plaintiff alleges are that the mesh degrades; harbors infections; migrates; erodes; shrinks; and causes inflammation. Schmidt v. C.R. Bard, Complaint at ¶ 11a-e, i, No. 6:14-cv-62. Nowhere in the complaint, however, will you find a single factual allegation to support those general conclusory statements. Moreover, nowhere is there any allegation that the plaintiff actually suffered from any of these alleged “defects.” Did plaintiff suffer from an infection or inflammation; did his mesh shrink or migrate?
We can only surmise that the remaining 3 “defects” the court identified in the complaint were: (1) the mesh regularly fails to perform its intended purpose; (2) due to its defects, the mesh causes injury; (3) if the mesh needs to be removed due to its defects it is often difficult and poses additional risks. Id. t ¶ 11f-h. These aren’t defects. The first two are simply legal conclusions and the third is an alleged potential injury. An injury that is again not tied to plaintiff’s particular condition in this case. Simply listing numerous speculations doesn’t make them any less speculative. This is something holism can’t cure.
From here the court moved on to find that the plaintiff also alleged a safer alternative design – the element at “the heart” of design defect under Georgia law. Schmidt, 2014 U.S. Dist. LEXIS 146459 at *9-10. What plaintiff actually alleged wasn’t an alternative design of the device, but an alternative method of surgically repairing hernias that doesn’t involve the use of the mesh device. Id. at *9. This argument, of course, is a disguised form of absolute liability, that is, it’s another way of saying that the product should simply not have been used at all, that “nonuse” is the alternative design. Fortunately, there is an extensive body of law recognizing that altogether different products or different procedures are not alternative designs. You can read about it here.
Not only should plaintiff’s design defect claim have been dismissed under TwIqbal, so should have his failure to warn claim. The complaint simply alleges that the warnings provided were inadequate. What isn’t alleged is what warnings were given to the plaintiff’s surgeon and how they were in any way inadequate. The court accepts as true plaintiff’s completely unsupported assertion that plaintiff’s surgeon wasn’t warned of any of the “defects” identified in the complaint. Incorporating everything we said above about those “defect” allegations, plaintiff was already well-behind the starting line if they are the basis for his failure to warn claim too. Not to mention there is no allegation that plaintiff suffered from any of the allegedly unwarned about risks and no allegation about what information was in fact conveyed to the surgeon or what knowledge the surgeon had at the time of the surgery. All are information within plaintiff’s ability to ascertain before filing his complaint.
Finally, defendant also moved to strike plaintiff’s request for punitive damages. Here the court engages in a nonsensical analysis that seems to result in the inability to ever have punitive damages dismissed at the pleadings stage. First the court says that a motion to strike is “proper only where the relief requested is not available as a matter of law.” Id. at *16. That is neither true nor the crux of defendant’s argument in this case. Rather, defendant challenged the factual basis for plaintiff’s request for punitive damages. That, the court agreed, sounds more like a Rule 12(b)(6) motion to dismiss. However, a motion to dismiss is also improper. Rule 12(b)(6) can only be used to dismiss a “claim” in its entirety and a request for punitive damages isn’t a “claim” but rather is part of the relief requested. Id. at *18-19. The court, therefore, concludes that plaintiff’s request for punitive damages is “subject neither to dismissal nor striking.” Id. at *19.
So, how do you dismiss a punitive damages claim? Do you have to wait until summary judgment to challenge it? The mere presence of the claim could be used as the basis for significant discovery of defendant that is completely unwarranted, including the disclosure of sensitive financial data. Here, the court was willing to at least say that the allegations that defendant was aware of the “defects” and represented that the device was safe sufficiently supported a potential punitive damages award if proven. Since that conclusion is still based on plaintiff’s insufficient and unsupported conclusory allegations, it suffers from the same problems as all of the other conclusions reached in this decision.
The bottom line is this — you can read this complaint backwards, sideways, up-side down or holistically and it just isn’t good enough to survive TwIqbal.