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

“He who knows others is wise; he who knows himself is enlightened.” — Lao Tzu

This may not be exactly what the court in Moore v. C.R. Bard, Inc., 2016 U.S. Dist. LEXIS 156923 (E.D. Tenn. Nov. 14, 2016) had in mind when it authored its recent opinion dismissing the complaint in this case, but the decision brought these ancient philosophical words to our mind. Of course, if we are talking about self-knowledge advice, we might be more partial to Ann Lander’s “Know yourself. Don’t accept your dog’s admiration as conclusive evidence that you are wonderful.” But, we trust you get the point. You better know yourself first before you start worrying about what you don’t know about others.

Plaintiffs tend to put the cart before the horse on this issue. When faced with a motion to dismiss for failure to state a claim, plaintiffs focus intently on what they claim they don’t know yet or can’t possibly know – but never seem interested in all of the things that they should know before filing a lawsuit. That’s a big part of where plaintiffs fell short in Moore.

During surgery to repair a hernia, two mesh products were implanted in plaintiff – one Bard product and one Ethicon product. Id. at *2-3. Plaintiff alleged that both products were made of polypropylene; that both defendants failed to adequately warn about the risks of their products; and that following surgery plaintiff’s condition worsened which he alleges is due to one or both of the mesh products. Id. at *3-4. And, that is all plaintiff alleged.

So, defendants moved to dismiss on the grounds that plaintiff’s complaint fell well short of the federal TwIqbal pleadings standards and the court agreed. Products claims in Tennessee are governed by the Tennessee Products Liability Act.  Regardless of the theory – negligence, strict liability, or breach of warranty – to survive a Rule 12(b)(6) motion to dismiss, plaintiff must allege sufficient facts for the court to infer that the medical devices were “defective” or “unreasonably dangerous” at the time the products left defendants’ control, and that the alleged defects caused plaintiff’s injury Id. at *9-10.

But, as noted above, all plaintiff alleged is what the device was made of and that he was injured. Plaintiff “presented no evidence or authority that the use of polypropylene makes the products per se defective or unreasonably dangerous.” Id. at *12. In other words, plaintiff’s allegations are speculative and conclusory. Id. Plaintiff’s response to that was that he “does not have the scientific understanding of the products that the defendants do.” Id. at *14. So plaintiff wanted to be held to a pleading standard “commensurate with the information that is available to him.” Id.   Ahh. Be careful what you ask for. The court turned this around on plaintiff and pointed out that in fact, plaintiff had significant information available to him – self-knowledge:

However, . . . the information relevant to plaintiff’s condition and the causes therefore are solely available to him. The defendants presumably have detailed information as to the characteristics of their products, but they have no information as to plaintiff’s medical condition, the causes of his condition, or his prognosis. The Twombly/Iqbal standard requires the plaintiff to have greater knowledge of those factual details in order to draft a plausible claim.

Id. (emphasis added). You better know yourself first. Plaintiff has access to his medical records and his doctors, defendants don’t. So, it’s plaintiff and not defendants who has the relevant information about things like causation. For instance, while plaintiff alleges defendants’ warnings were inadequate, the complaint lacked any facts regarding whether the allegedly deficient warning caused plaintiff’s injury. That’s something within plaintiff’s knowledge base. Is there something his doctor claims he wasn’t told or didn’t know? What about the condition of the medical device? It’s in plaintiff’s body. Only he and his doctors have access to information regarding the “what” of the device is allegedly causing plaintiff injury. Plaintiff’s complaint similarly lacked any facts about that either. Id. at *12-14.

So, while plaintiff may not have access to the technical or manufacturing specifications of the device, there is a whole wealth of information that plaintiff has exclusive access to and which must be part of the complaint. Plaintiffs have to do their homework and can’t hide behind what they don’t know while ignoring everything they are supposed to know.

Finally, the court also called plaintiff out on mashing together his allegations about the two different products used in his surgery with no specific allegations against either defendant or either product. Plaintiffs can’t simply lump all defendants and all products together – specificity is required. Only from specificity and self-awareness come TwIqbal surviving complaints.