One size does not in fact fit all. Cookie cutters are great for ensuring uniformity. The type of uniformity you want on a beautiful dessert tray. Uniform size, shape, and color appeal to the eye. It’s precise. It’s inviting. And while the term “mass tort” may conjure up the image of complaint after complaint stamped from the same mold – in fact, personal injury mass torts are more like good old-fashioned, homemade drop cookies. Think chocolate chips. For the most part, they are all basically round. Usually close in size. And most similar in taste. But they are far from identical. They have bumpy edges and lumpy surfaces. No two have the same number of chips. Some are just a tad softer than others. Some fall apart as soon as you pick them up. One can never be the clone of another. That’s the way complaints are in mass torts. Overlap, similarities – sure. But if you use cut and paste, you better make sure you’re copying the right thing.
That was the primary downfall of plaintiff in Green v. Coviden, 2019 WL 4142480 (S.D.N.Y. Aug. 30, 2019). Plaintiff underwent a hernia repair surgery during which defendant’s Symbotex Mesh was implanted. Following the need for revision surgery, plaintiff brought suit for strict liability, negligence, breach of warranty, fraudulent and negligent misrepresentation, unjust enrichment, and consumer fraud. Id. at *1.
To support her claims, plaintiff alleged that “microporous mesh” has a higher risk of infection and seroma and that “lightweight mesh” cannot adhere as well as others to the abdominal wall. Id. at *2. However, the Symbotex Mesh used in plaintiff’s surgery was a macroporous mesh. Plaintiff had to concede that her complaint was about the wrong product. Prompting this response from the court:
Accordingly, the factual predicate for Plaintiff’s defective design claim is admittedly false, and this sloppy error alone requires that Plaintiff’s defective design claim be dismissed.
Id. The court further admonished that plaintiff couldn’t amend her complaint by correcting the allegations in her opposition brief. Wrong facts, wrong product, no claim. No breach of warranty claim either. Id. at *5-6.
But that’s not where the “cookie cutter” allegations end. Even if the complaint had accurate facts, plaintiff’s design defect claim failed because “[s]imply asserting that a feasible alternative design exists – without pleading any supporting facts – is not sufficient to plead a defective design claim or to put Defendant on notice as to what that design might be.” Id. at *3. What something else “cookie cutter” complaints have in common – a lack of detail. How else do you make allegations to fit any occasion? Plaintiff also alleged that there are “safer alternatives” to using mesh for hernia repairs, but “alleging that the product should not be used at all” is not the same as pleading an alternate design. Id.
Plaintiff’s manufacturing defect claim suffered a similar fate because plaintiff didn’t plead any facts demonstrating defendant’s manufacturing process was flawed or how the device deviated from the standard design. Id. More empty allegations. Plaintiff argued that she was relying on circumstantial evidence – she was injured, therefore the product did not do what it was intended to do and so it must be defective. If this were allowed, it would be the perfect “cookie cutter” allegation. No supporting facts needed. Injury equals defect. But the court has this say:
This is a non-sequitur. Defective manufacturing is not shown merely by proof that a consumer was injured, and by asserting that the product was not intended to injure its user. If Plaintiff is going to rely on the circumstantial theory of liability . . . she must allege [facts] to nudge her claim above the level of speculation and into the realm of the plausible.
Id. at *4. Plaintiffs’ allegations here further missed the mark because the injuries she alleges “are among the complications listed on the [device’s] warning label.” Id. The fact that the very risk warned about occurred can hardly justify a manufacturing defect claim without more. A whole lot more.
And that brings us nicely to plaintiff’s failure to warn claim. Once again, “cookie cutter” pleading is plaintiff’s downfall. Plaintiff’s complaint includes an allegation that defendant’s mesh came with a warning about recurrence, adhesions, and pain, among other things. Id. Plaintiff’s complaint also alleges that her injuries were “recurring hernias, pain and adhesions.” Id. at *5. If you are going to claim a failure to warn, you should probably make sure your own allegations don’t include warnings about the very risks you suffered.
Finally, plaintiff alleged fraud and misrepresentation claims which are subject to Rule 9(b) heightened pleading standards. If “cookie cutter” allegations weren’t enough for the other causes of action – they didn’t stand a chance against Rule 9(b). As with her other claims, plaintiff did not “quote or describe the alleged misrepresentations.” Id. at *8. Plaintiff pointed to a lot of web addresses, but most were nonfunctional and even so, it’s not enough to generally allege a website contains false statements without specifying which statements are allegedly false or misleading. The one statement the complaint did specifically point to, plaintiff failed to explain why the statement was false or misleading. Id. Plaintiff’s consumer fraud claim failed for the same reason. Id. at *9-10. It’s easy to use “cookie cutter” allegations if you keep everything high-level and non-specific. But, TwIqbal demands more.
The court also threw out plaintiff’s unjust enrichment claim as not available in routine product liability actions. It is not viable if it simply duplicates the tort action. Id. at *9.
We know the law consists of forms and standard procedures. We all stand on the shoulders of those who have gone before us. Borrowing from arguments won here, incorporating defenses successful there. Nobody wants to reinvent the wheel. But, if you’re going to be sloppy about it, you’re going to find yourself with nothing more than a plate of crumbs.