In drug and device litigation, product identification can be a significant issue. Many of us have poured over medical records and worked through question modules at depositions to determine whether the plaintiff actually used our client’s drug or device. Undermining product identification can be one of the quickest ways to end a lawsuit. But it doesn’t get much quicker than it happened in Weddle v. Smith & Nephew, Inc., 2016 U.S. Dist. 48512 (N.D. Ill. Apr. 11, 2016). There, the plaintiff couldn’t (at least so far) get passed the pleadings.

In a variant of the old “when in doubt, pick C” approach to standardized tests, in Weddle, plaintiff went with, “when in doubt, pick them all.” Plaintiff had a Trident Hindfoot Fusion Nail system (“Trident), manufactured by Smith & Nephew, Inc., implanted in her foot. Id. at * 1-2. But other products, including nails and cement manufactured by Howmedica Osteonics Corp. and screws manufactured by DePuy Synthes Sales, Inc., were also implanted. After pain and other problems that required several more surgeries, plaintiff sued everybody. Id. at * 2. She alleged that Smith’s Trident, and/or Howmedica’s nails and cement, and/or DePuy’s screws caused her problems. Id. at * 8. In other words, she picked everybody. But, much like using your #2 pencil to fill in all the circles on a standardized test answer sheet, it didn’t work. The Court dismissed her complaint for failure to state a plausible claim. Id. at *20.

Naming multiple potential products and multiple potential defendants only suggests possibilities. It doesn’t make a claim “plausible,” as required by TwIqbal. “[A] plaintiff must do more than allege possibilities; she must allege facts sufficient to make her claims plausible.” Id. at *8 (citing Twombly and Iqbal). Liability is personal, and a complaint must notify a defendant of what he or she did wrong, not the mere possibility of it:

As the Supreme Court made clear in rejecting allegations of vicarious liability of supervisory personnel in Iqbal, the allegations against any particular defendant must plausibly allege liability based on that defendant’s own conduct. 556 U.S. at 676 (to state a Bivens claim, “a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution”). The Seventh Circuit emphasized the same point in Bank of Am., N.A. v. Knight, 725 F.3d 815, [818] (7th Cir. 2013), in holding that:

Liability is personal. An allegation that someone looted a corporation does not propound a plausible contention that a particular person did anything wrong. The Rules of Civil Procedure set up a system of notice pleading. Each defendant is entitled to know what he or she did that is asserted to be wrongful. A complaint based on a theory of collective responsibility must be dismissed.

Id. at *9.

Plaintiff couldn’t escape dismissal by arguing that she was pleading in the alternative. That’s not what she did. She tried to bring all possible defendants into a litigation and lump them into one liability group without actually alleging what they did wrong or even whether they did wrong:

In naming the three defendants and alleging that each might be the party responsible for her injuries, Weddle is not asserting alternative “claims,” but rather seeks to hold three different defendants liable for the same injuries without providing any basis to conclude that any one of them (much less all of them) are, in fact, responsible—other than that their products were among the products used to treat her fracture.

Id. at *14.

Her pleading failure was even worse given that she and her doctors, not the defendants, were in the best position to get additional facts:

Here, Weddle has all of the information relevant to the condition of her ankle and of the allegedly defective product implanted in her ankle; at this point, Weddle has exclusive and complete access to her physicians and medical records, including records that report on the condition of the products used to stabilize her pilon fracture. Indeed, Weddle even has the serial numbers of the specific Howmedica pins and DePuy screws that were implanted in her ankle. The defendants, by contrast, have no means to assess the condition of Weddle’s ankle and no amount of discovery from the defendants will reveal which of the three defendants’ components that were implanted in Weddle’s ankle actually broke.

Id. at *16.

In short, this was a wipeout. The plaintiff’s complaint, on its face, didn’t allege a claim against any individual defendant, and so the court dismissed it.

As often is the case, however, plaintiff will get a chance to replead. But she’d better find more facts to allege a plausible claim. And she’d better pick a defendant. If she doesn’t, it’s highly likely that this case will be over.